Supreme Court of India
DEENA@DEEN DAYAL ETC. ETC.versusUNION OF INDIA AND OTHERS
- Citation
- 1983 INSC 126
- Decided
- 23 September 1983
- Disposal
- Dismissed
- Bench
- Y V CHANDRACHUD
Holding
Section 354(5) of the Code of Criminal Procedure, which mandates execution by hanging, does not violate Article 21 of the Constitution.
Summary
The petitioners, sentenced to death for murder, challenged the constitutionality of Section 354(5) of the Code of Criminal Procedure, which mandates execution by hanging, alleging it is cruel, barbarous and violative of Article 21 of the Constitution. The Court examined whether hanging constitutes a cruel or degrading method, the burden of proof under Article 21, and the relevance of earlier decisions such as Bachan Singh and Machhi Singh. Relying on expert testimony, reports of the Royal Commission on Capital Punishment, and comparative analysis of alternative methods, the Court held that hanging, as presently practiced, is the least painful and most humane method available and does not breach Article 21. It also affirmed that the burden of proving constitutional validity rests on the State, which had discharged that burden. Consequently, the petitions were dismissed and the execution orders remained in force.
Issues considered
- The constitutionality of Section 354(5) CrPC prescribing hanging as the method of execution under Article 21.
- Whether hanging by rope is a cruel, barbarous or degrading form of punishment.
- The allocation of the burden of proof in challenges under Article 21.
- The impact of earlier judgments (Bachan Singh, Machhi Singh) on the present issue.
- The comparative merits of alternative execution methods (electrocution, gas chamber, lethal injection, shooting).
Legislation cited
- Code of Criminal Procedure, 1973s. 354(5)
- Constitution of Indias. Article 13(1), s. Article 14, s. Article 19, s. Article 21, s. Article 72(1)(c)
- Indian Penal Code, 1860s. 302
Subjects
Article 21death penaltymethod of executionhangingcruel and unusual punishmentburden of proofconstitutional validitycapital punishmentjudicial review
Judgment
I
DEENA@DEEN DAYAL ETC. ETC.
A
v•.
UNION OF INDIA AND OTHERS
September 23, 1983
.. [Y.V. CHANDRACHUD, C.J., R. s. PATHAK AND
SABYASACHI MUKHARJI, JJ.]
B
Code of Criminal Procedure, 1973-S. {54(5)-Exbition of death
sentence-Hanging by rope-Whether violative of Art. 21 ?
c
Constitution of India, 1950-Art. 21-Execution of sentences lawfully
imposed-Mandate of Art. 21 is that sentence shall not be executed in a cruel,
barbarous or degradini manner.
>
Constitution of India, 1950-Art. 21-Burden of proof-lf it ap/;ears that
a person is beingdperived of his life or personal liberty, the burden is on the D
State to establish the constitutional validity of ilnpugned iaw.
Judicial Review-To pronounce upon constitutionality of law· is not
legislating even if su<h pronouncement involves value judgn1erit.
The petitioners who had beeil sentenced to death for the ~offence of
murder were awaiting execution of the sentence. Their plea Was that hanging
E
by rope is a cruel and barbarous 1nethod of executing the sentence and s. 354(5)
Cr. P.C. which prescribes that method is violative of Art. 21 of the Constitu-
tion The respondents raised a preliminary objection that the question had
,, already been concluded by the decision in Bachan Singh v. State of·Punjab,
[1983] l S.C.R. 145. The objection was overruled.
Counsel for petitioners contended thats. 354(5), Cr. P.C. is bad because
it is impermissible to take human life even under the decree of a f;urt since
il is human to take life. under any circumstances; that by reason of the
provision contained in Art. 21, it is _impennissible to cauSe pain or suffering
>
of any killd whatsoever in the execution of any sentence, n1uch more so while
exe<;uting a death sentence; that the n1ethod of hanging prescribed by s. 354(5) G
for e:>:ecuting the death sentence is barbarous, inhumt_1.n and degrading; that it
is the constitutional obligation of the State to provide for a humane and
dignified method for executing the death sentence. which does not involve
torture of .iny kind; and that if the method ~rescrib7d by s. 354(5) 'does not
meet this requirement, no death sentence can be executed since no other
method for executing that sentencd is prescribed by or is permissible under B
the law. Counsel also referred to the judgment in Machhl Singh v. State of
Punjab, [1983] 3 S.C.C. 470 and suggested that it virtually overrules Bachan
Singh.
2 SUPREME COURT REPORTS ( 1984) I s.c.Ji.
•
Counsel for respondents conteflded that a sentenee lawfully imposed by
A a court can and has to be ~xecuted, though by cau~ing the ieast pain and
suffering and by avoiding torture or degradation of any kind; that the method
prescribed bys. 354(5), Cr. P.C. for executing the death sentence is a humane
and dignified method involving the least amoUnt of pain and cruelty; that no
other method of executing 'the death sentence· is quiCker o'r less painful; and
that Art. 21 does not postulate that no pain-- or suffering whatsover shall be
caused in the execution_of a sentence Ia:-vfully imposed by a court, inciuding
B the sentence of death. Courisel further submitted that ullless on the face of , '
,(
it, the meth_od prescribed by for executing law a sentence is revolting to
conscience, courts must surrender their discretion to legislative judgment when
the challenge to the constitutionality of the law is based on consider.ltions
which the court is not equipped to evaluate by manageable judicial standards,
and contended ,that the court's evaluation of the method of hanging prescribed.
c by law shall have to be inevitably subjective, almost to the point "Of being
legislative in charcter. which.must be avoided at aJI costs.
v.
Dismis~ing th~ petitions, .
.,, HELD: l. The·method prescribed bys. 354(5), Cr. P.C. for executing
the ·death sentence does not violate the provision contaiiied in Art. 21 of the
D Constitution. [59 El
(a) The material placed before the Court shows that hanging by rope
·•is not a cruel inode of executing the death sentence : the system consists of a
mechanism which is easy to as~emble ; preliminaries to the act are qujck and
simple and are free from anything th~t would un,necessarily sharpen the
poignancy of the prisoner's apprehension ; the chances of accident during the
course of hanging can safely be excluded ; tti.e 1nethod is quick and certain and
eliminates the possibility of a lingering death; unconsciousness supervenes
almost instantaneously after the process is set in motion and death follows as
a result of dislocation of the cervical vertebra:e. The system of hanging, as
'. now used, aVoids to the' full extent th~ -chances of strangulation which results
on account dr too short a drop or of decapHatioll which results on account of
"
F too lOng a drop. The mechanics of .the method of hanging have undergone
significant improvemi:rlt over the years and hanging has been almost perfected
1
into a science. The system iS"'conslstent with the obligation of the State to
ensure that the process of executiori is con'ducted with decency and decorum
without involving degra-;1.ation or brutality of any kind. At the moment of
fin~l impact when life becomes extinct, some physical pain would be implicit
G in the very Process of the ebbing out of lif~. But, the act of _hanging causes
the least pa1n imaginable on account of the fact that death supervenes instan-
taneously. The coD.clUsion that the system of hanging is as painless as is
possible in the .circumstaiices, that it causes no greater pain than any other
known method of executing the death sentence and that it involves\ no
_barbarity, torture or degradation ·is based on reason, supported by expert
H evidence and the findings of modern medicine. [58 C-H, 59 A]
Repqrt of the Royal Commission on Capital Punishment (U:R..), September,
'1953; 35th Report" of the LAw Comn1ission of India on Capital PunishmC'nt,
' .
DEENA V. UNION 3
{.: Sepember ~O. 1967; George R. Scott: Hanging Through t~e. Ages (Torc~str~a,m
1 Books, London); J ~V. Cecil Turner (Ed.). Kenny•s f)utlines of Criin{na! L~W, A
19th Ed., 1966; Harry Eln1er BarneS and Negley K. Teeters: New Horizons 'in
Criminology, 3rd Ed., 1966; C!.N. Deparin1ent of Economic , and Sor:i~I A.Jill/rs :
l Capital Punishment, (New York, 1962); and Bachan Singh, [1983] I S.C.li:. J4S
referred to. ~.
;. (b) On the question 9f pain involved in a-punishment, thci concern of
_,. law has to be to ensure that .the various steps .which are attendent upon or
n
incidental to the execution of any senience, more so the death sentence, do not
.,.,_ constitute punishments by themselves. Humaneness is the hall-mark of
-civilized Ja\vs. ]fa prisoner is sentenced to death. it is lawful to execut~. that
punishment and that only. He· cannot be subjected to barbarity, humil"i~tion.
torture or degradation before the e'xecution of that sentence, not ev:en as
necessary steps in the execution of that sentence. The process 9f· :ti3nSins:
does not inv_olve any of these direc~Iy, indirectly or incidentally. l5.9 ·~-J;>l.
c
(c) Hanging by rope was the only method of executing the death
> sentence which was known to the Constituent Assembly and y~t it did not
express any disapproval of that method, though it touched upon the ques~ion
of death sentence while dealing with the President's power of pardon undet
·Art. 72(l)(c) of the Constitution. [58 BJ' . . '
D
\
~----
(d) The system of hanging by rope -is. in operation in large parts of
the civilized world and there is a responsible body of scientific and legal
opinion which holds that hanging by rope is Dot a cruel mode of executing the
death sentence. 57 H, SB A] E
(e) Hanging as a mode of execution is not relentless in its severity.
Judges ought not to ;lssume that they are endowed with a divine insight into
the needs of a society; they should heed the warning that, as history amply
•·. proves, the judiciary is prone to nlisconceive the public gOod by confoundin&
prjvate notions with constitutional requirements. [62 G~H:, 63 A]
F
' ,
(f) The <;ourt is n6t required to determine the merits and d~rµ.erits _of
the alternative methods of- execution which are in vogue elsewhere because
the Court cannot substitute any other method of exec.ution f0~ th~ methOd
) prescribed by law. However, an understanding of the process invo)ved_in, t}:le
competing ·methods used for executing the death sentence is not altogether ,
pointless because if some other method has a real and definite advantage over G
the met ho~ of hanging, arbitrary rejection of that method by the. State may not
answer the constitutional prescription. However, neither electrocution, QOr
lethal" gas,· nor shooting, nor ev~n the lethal ,injection has any distinc~ or
demonstrable advantage over the system of hanging. The general belief that
death by electrocution is entirely painless is not fr_ee.from doubt. That apart,,
· failure of electrical energy supplied by commercial undertakings has be.en 'H
considered ·in America as an impediment in the use of the electric chair.
With frequent failures of electric power in our country, the electri(! chair will
bec9me an instrument of torture. Lethal injection.is by and large an unttjed
SUPREME COURT REPORTS [1984] 1 S.C.R.
method. The injection is required to be administered intravenously which is
·A a delicate . and skilled operation. The Royal Commission on Capital
Punishment (U.K.) was not satisfied that executions carried out by the
. ·administration of lethal injections would bring about_ death more qlltckly,
painlessly and decently in all cases. Shooting by a firi1:Jg squad, apart ftorn
being unreliable, is an u'nCiviHsed method of extinguishing life. It is the
favourite pastime of military regimes which trample upon human .rights with
impunity. It is most reck~essly and wantonly used for liquidating opposition
and smothering dissent in countries which do not respect the rule of law.
Murders by shooting are becoming a serious menace to law and order. in our
country. Shooting by the State in order to kill for executing the order -.of a
court will unwittingly confer respectability on the 'shooting to kill' tactics
which are alarmingly growing in proportion, The suggestion that a death-
convict may be put to sleep by a sleep-inducing injection before applyiog
·~ c other methods such as electrocution or gas chamber, is not only impracticable
but Would appear to involve coffip1ications and torture to an uncommon
degree. [50 F·H, 57 E, 53 F, 54 n, 56 c, F, 55 G-H, 56 A-B, 56 G, 57 A)
(g) Matters of policy are certainly for the_ legislature to consider and
therefore, by what mode or method the death sentence should be executed, is '
-D .. fOr th'e legislature to d'ecide. But the function of the legislature ends with
providing what it co~siders to be the best method of executing the death
sentence. Where the function of the legislature !!nds, the function of the
judiCiiir)l' begins. It is for the courts to decide upon the constitutionality of the
method prescribed by the legislature for implen1enting or executing a sentence.
-Whether that method conforms to the dictrtes Of the constitution is a matter not ·\
o'nly subject to judicial review but it constitutes a legitimate pa.rt of the
judicial function. The question whether the particular method prescribed by
law for eXccuting the death sentence is in consonance with the Constitution
r
inevitably involves' a value judgment based upon a comparative evaluation of
;lternate methods for executing the. death sentence. But mOre than any such·
comparative evaluation, the court's plain and primary duty is to examine whe·
'th.er, 'Cven if the method selected by the legislature is the least objectiOnable, •
it is still Open tq the objeCtion that it involves under torture, degradation or
cruelty. The Court's task will end with pointing out why, if at all, the method
at preseflt p'rovided by law is contrary to the mandate of the constitution. 'f~
pro!J.ounce upon the constitutionality of the law is not legislating, even if such
prOnouncement involves the consideration of the evolving standards of the
sockty. [35 A-C; E-FJ
:·G
2. (a) The contention that it is lnhun1an to kill under any circumstances
and that Art. 21 imposes a total prohibition on the taking of human life has
to be rejected. If the argument were to be accepted, the imposition of death
sentence would bec~rne an e~ercise in futility. Indeed, if carried to its
logical conclusion, the argument will make it ·impossible to execute any
H sentence whatsoever, particularly of i1nprisonment because of. every sentence
of imprisonment necessarlly involves pain and suffering to a lesser or greater
degree. A cOnstitution so carefully conceived as ours cannot be construed to
·produce suc;:h a st~rtling: result. Painl~ss punishment is a contradiction in
DEENA v. UNION
teri:nS. if it is ]awful to impose the sentence of death in appropriate cases. it
would be lawful to execute that- sentence in an appropriate manner. .'.:fh•
mandate of Art. 21 is not that the death sentence shall not be executed but
that it shall not, be executed in a cruel, barbarous or degrading manner.
When the sentence of death is constitutionally valid, not even the sophisticated
sensitivities can justly demand th it those upon whon1, the extreme penalty of
law is imposed because of the magnitude of their crime should not be mide
to suffer the execution of that sentence, u~acco'mpanied b:Y torture or degrada-
tion of any kind. If the larger interests of the community as opposed to ..ihe
interests of an individual require that a death sentence should be imposed in
an exceptional class of cases, the san1e societal interests ·would justify the 1
execution of that sentence, though in strict conformity with the requirement!
of Art. 21. [59 G, 60 C-D, 59 H, 60B F-G]
(b) The argument that either death sentence is barbarous Or that •the
method of hanging is cruel, ·inhuman or degrading cannot draw any sustenance
from the Eighth Amendment Clause of the U.S. Constitution. The American
• Supreme Court has formulated a sophisticated definition of that clause which
has a dynamic content Several concurring opinions show that, in America,
capital punishment is not considered to be violative of the Eighth Amendment .
.)
What the Eighth Amendment prohibits is' 'something inhuman ~nd barbarous
and something more than the mere extinguishment of life'', . Tf.e suffering D
necessarily invoJoved in the execution of death sentence is not banned by th!=
Eighth Amend1neol though the cruel form of execution is.
[62 F-G, 61 F, 62 D-EJ
Kem1nler, 136 U.S. 436; O'Neil v. Vermont, 144 U,S. 323; Trop v. Dulle!,
356 U.S. 86; and Louisiana v. Resweber, 329 U.S. 459; referred to. ··E
3. (a) There his to be finality to litigation, criminal as well as civil,
if law is not to lose its credibility. No one of course 5an question that law
is a dynamic science, the social utility of which consists in "its ability to keep
> abreast of the em~rging trends in social and scientific advance and its willin~
ness 'to readjust its postulates in order to accommodate those trends. But,
that is not to say that judgments rendered by this Court. after a full debate
should be rebonsidered every now' and then and their· authority doubted or
diluted. That would be doing disservice ~o ~w sin~e certainty over a reasonably
foreseeabfe period is the hall-mark of law. [ll F~J
>
The question that, in.the circumstances mentioned in Bachan Singh, it ,is .G
permissible to impose the sentenCe of death for the offence of murder must h•
treated as concluded and not any longer open to argument.~ In Machhi Singh,
,the learned Judges have hut formulated broad guidelines fo assist the Courts
in deciding the vexed question as to whether the death sentence is at all ca~led
for. Evidently. the judgment does not enlarge the scope of the rule in Bach(ln
Singh by broa:dening·the narrow field of cases which call for the death sentence.
The constraints of Bachan Singh deserve to be preserved but that means that
it is only a rare degree of malevolence which invites and justifies the imposition
of death sentence. [11 B-D]
'li SUPREME CoUR'r Ji.EPORTs . it984l i s.c.Ii..
Bachan Singh v. State of Punjab [1983] 1 S.C.R. 145; and Mach/ii Singh -
v; State of Punjab, [1983]; 3 S.C.C. 470 referred to .
.(b)"Both the majority and the n1inority in Bachan Singh considered the
Q.uestion of the validity of the death sentence from the procedural aspect also,
Whh special reference to the method of hanging prescribed by law for executing
the death sentence. Nevertheless, the ·question whether the particular mode :
of executing the death sentence prescribed by sec. 354(5) Cr. P.C., violates the
B provisions of Art. 21 of the Cl?nstitution was not directly and siJbstantcially in
issue in Bachan Singh and it was not considered specifically by the m3jority
as an independent issue. :It would not~ be proper to sidetrack that the question
.
3.nd "refuse' to examine it fully becaus~ of the incidental consideration which it.
received in Bachan Singh. [14 D, H, 15 C·D]
·-c (c) The retribution involved in the theory 'tooth for tooth' a,nd 'an eye
for eye' has no place in the scheme of civilized jurisprudence and the co.urt
0
cannot turn a deaf ear to the petitioners' cl~im for justice on the ground that
the ·enormity of their crimes has resulted in grave injustice to the
victims of those crin1es. The c·ourt is concerned to ensure due compliance
with constitutional mandates,·no matter the occasion. Justic~ has to be done
disP3.ssionateiy in accordance with the constitutional attitudes whether it is a
;murCierer'or a smuggler wlio ~sks for it. Law cannot demand its pound of
flesh. [16 E-GJ ·
Per Chandrachud, c:J. and -Pathak, J. (Sabyasachi Mukharji, J.
reserving his opinion on the point)
E ~
4. In cases arising under Art. 21 of the Constftution, if it appears that
a person ls beiOg depdved of his life .'Or has been deprived of his Personal
liberty, the burden rests on the State to establish the constitutional -validity -of
the impugned law. [32 F]
There is a fundamental distinction between cases ar1s1ng under. Art. 14 "
· 8nd those which arise und~r Arts. 19 and 21. Jn the generality of cases under
'Art. 14, the challenge is ba·sed on the allegation that the in1Pugned provision is
'discriminatory since it singles out the petitioner for hostile treatment from
amongst persons who, being situatid similarly, belong to the same class as· the
petitioner and the petitioner has to plead and prove that there are others who
are ·situated sinlilarly as him and that he is singled out and subjected to
G · unfavourable ·treatment. Whether there are other persons who are situated
···Sirllitarly··aS the petitioner and whether he is subjected to hostile discrimination
1
arc ·questions of fact and ·the burden to establish the existence of these facts
tests· on the petitioner. In a challenge based on the violation- of Art. 19 or
··Art:-21 the petitioner has undoubtedly to· plead that, for example his right
tO free.speech and expression is violated or that he is deprived of hi~ right to
, life·or personal liberty. But once he Shows that, which really is not a part of '
the ·burden of proof, it is for the State to justify the impugned law or action
by proving that, fot example, the deprivatiOn of the petitioner•s right to free
speech and expression is saVed by cl. (:i) _Or Art. 19 since it is in the
DBENA v. tiNION
Dature of a reasonable restriction on that ·right in the interests of matters
mentioned in cl. (2), or that, the petitioner has been deprived of his life A
or personal liberty according to a just, fair and reasonable procedure
established, by law. In cases arising under Art. 19, the burden is never on
the petitioner to prove that the restriction is not reasonable or that the. restric~
tion is not in the interests of matt.ers mentioned in cl. (2). 'Likewise, in cases
arising under· Art. 21, the burden is never on the petitioner to prove that the
procedure prescribed by raw Which deprives him of his life or perSonal liberty
is unjust, unfair or unreasonable. As soon as it is shown that the Act invades B
a right gaaran1teed by Art. 21 it is necessary to inquire whether the State has
• proved that the person has been deprived of his life or personal liberty accor-
ding\to procedure established by law, that is to saY by ·a procedure which is
first, fair and reasonable. [23 D·H]
Any case, even a locus classicus is an authority for what it decides. It is
permisuible to extend the ratio of a deci~ion to cases involving identical situa-
c
tions; factual and legal, but care must be take~ tO see that this is not done
mechanically, that is without a close examination of the rational of the decision
which is cited as a precedent. Human mind, trained even in the strict disci-
.. pline of law, is not averse to taking the easy course of relying on decisions
which have become famous and applying their ratio to supposedly idnetical
D
situations. [21 G·H]
Saghir Ahmed v. State of U.P., [1955] l S.C.R. 707; Khyerbari Tea Co,
v. Slate of Assam, [1964] 5 S.C.R. 975; Western U.P. Electric Powef & Supply
Co. Ltd. v. State ofU.P., [1969] 3 S.C.R: 865; Mohd. Faruk v. State of M.P.,
(1970] J S.C.R. 156; Laxmi Khandsari v. State of U.P., [1981] 3 S.C.R. 92; and
Bachan Singh v. State of Punjab,,[!983] I S.C.R. 145; referred to. E
Ram Krishna Dalmia v. Justice S.R . Tendolkar, [1959] S.C.R, 279; M),hd,
'
HaniJ Quareshi v. State of Bihar; tl959] S.C.R. 629; Madhu Limaye v. Sub·
Divisional Magistrate, (19711 2 S.C.R. 711; and Pa1hu1nma v. State of Kera/a,
[1978] 2 S.C.R. 547; explained and distinguished .
• .F
B Baneriji v. Anita Pan, [1975] 2 S.C.R. ·114; decided per incurium.
Jn the instant case the impugned statute, on the face of it, provides for
a procedure for extinguishing life. Therefore, not even th·e initial obligation
to show the fact of dep;ivatiori of life or liberty rests on the petiti.oners. The
State mu~t establish that the procedure prescribed by s. 354(5), Cr.. P. C. for ,G
executing the death sentence is just, fair and reasonable. [33 A-Bl
Per Sabyasachi M.ukharji, J .
• <.·
As soon as it is shown that a Statute or Act in question invades a right
guaranteed by Art. 21, it is necessary to enquire whether the State has proved
that the prisoner has been depriv~d of his life or personal liberty according to
procedure established by law. However, at present I would not express mY
'
SUPREME COURT REPORTS [i984J 1 s.cJL
opinion whether in all such cases, the State has a fufther initial burden -to
A prove that procedure established by law isjust, fair and reasonable. [63 E-~]
-~
ORIGINAL JURISDICTION: Writ' Petitions Nos. 503, 516, 532,,
1
534, 535, 537, 538-39, 541-42, 543-45, '553, 554, 555, 565, 574, 586, J.
556-57, 592-94, 604-06, 676, 600, 533, 1414 and 1423 of 1983.
B
(Under article 32 of the Constifotion of India)
WITH
..
-~
Special Leave Petition (Criminal) No. 196 of 1983.
c
. Froin the Jndgment and Order dated the 6th December_, 1982
>·
\
of the Allahabad High Court in Criminal Appeal No. 1357/82.
AND .
D
Writ Petition. Nos. 286, 345-48, 428, 429 of 1983. •
.
(Under article 32 of the constitution @f India)
Advocates For The Petitioners
E
N.M. Ghatate and Mr. S. V. Deshpande - in WP. 503. 1
R.G. Kohli, A.G.-:- in WPs. 5\6 and 586.
a.
R.K. Garg, R. Sathish· and V.K. Pandita, -: in WPs, 534 and I
F 565. ' \
\
· A.N. Bardaiyar and B.B. Sinha - in WP. 535.
A.K. Srivastava, A.G. - in WP. 537,
G O.P. Verma '-- in WPs. 538-539.
Mrs. K. Hingarani - in WPs. 541-42. ·
B.S. Varshney and G.L. Sahu - in WPs. 543-45.
H •
L.K. Gupta - in WP. 553.
Raju Ramachandran - in WP. 555.
bEilNA v. UNION
· Miss Kai/ash Mehta and Mrs. Naresh Bakshi - in WPs. 5652
600. A
Arun Madan, A.C. - in WPs. 556·557.
V.D. Khanna - in WPs. 604-06.
S.N. Mehta, A.C. - in WP. 676. B
Anil Kumar Gupta and Brij Bhushan - in WP. 533.
D.K. Garg - in .WP. 1414, 1697-98 and 286.
Aruneshwar Gupta in -,- WP. 1423. c
S.K. Mehta, P.N. Puri and M.K. Dua - in S.L.P. No. 196/83.
Solmon Khutshid and L.R. Singh - in WPs. 345-48.
Miss Lalita Kohli, A.C. - in WP. 429.
D
Petitioner in Person - in WP. 532.
Nemo in WPs. WPs. 534, 574, 529-94 and 428.
Advocates For the Respondents : 1
E
K. Parasaran Soliciter General, for State of Maharashtra and
U.O.I.
K.G. Bhagat Additional Soliciter General,
• N.C. Talukdar, Anil Dev. Singh, C. V. Subba Rao and. Miss F
A. Subhashini
'\ /
M.N. Shorff for State of Maharashtra.
A. V. Rangam for State of Tamil Nadu.
G
Swaraj Kaushal for State of Karnatka.
Harbans Singh and D.D. Sharma for State of Punjab.
R.N. Poddar for State of Haryana.
H
Da/veer Bhandari for State of U.P.
B.B. Singh for State of Bihar.
r
'to . SUPRllME COURT REPORTS · iI984l i s.c.R..
Ram Jethmalani for State of Karnatka and for interveners.
A
Miss Rani Jethmalani iind Shrikant Bhat, in WP. Nos. 532,
534 and 535 of 1983.
Chandrakant Lecturer in the Department of Forensic Medicine,
B · Aii India Institute of Medical Sciences, intervenor-in person iri WP.
No .. 503. .
The Judgment of the Court ,wa·s deliver:d by
c CHANDARCHUD, C.J. : . In this batch of Writ Petitions, the
petitioners were sentenced to death for the offence of murder under
section 302 of the Penal Code. They have nothing in common .
except that they committed murders and have been sentenced to
death. The sentence-of.death imp~sed u.pon them' has become final
in the sense that the Special .Leave Petitions, Appeals, Review Peti- (
D tions and Mercy Petitions filed by them have been dismissed, some
of these more than once: The.main question which has been.raised
by the petitioners in these writ petitions relates to the validity of the
mode of execution of the death sentence.
\
E Section 354(5) of the Code of Criminal Procedure provides
that: '
When any pers~n is sentenced to death, the -sentence
shall° direct that he be hanged J;>y the neck till he is
dead.
The petitioners challenge the constitutional validity of this provmon
on the ground that hanging a convict by rope is a cruel and
barbarous metho.d of executing a death sentence, which is violative of
Article 21 of the Constitution That article provides that :
G
No person shall be deprived of his life or personal
liberty except according to procedure established by law.
The validity of death sentence which Section 302 prescribes for
H the offence of murder was upheld by this Court in Bachan Singh.(')
(1) [19831 1 S.C.R. 145:
-nEENA v. UNION (Chandrachud,C.J.) Ii
The ratio of that decision is that the normal sentence for murder
iS .)ife impr.isonment and that the sentence of death can be. imposed
in a very iexceptional class of cases, described in that judgment as
the 'rarest of rare cases'. Which kind of cases would precisely fall
within that category is in the very nature of things difficult to define
and even to describe. Bu~, all the same, a . studied attempt was
made by this Court in Machhi Singh( 1) to identify, though not to·
\ . B
crystalize, the area of those rarest of rare cases in which death sen-
tence can justifiably be ·imposed. Shri Garg's criticism of that judg"
J)'.1ent that it virtually overrules Bachan Singh and' Jagmohan Singh(')
is wide off the mark. In Machhi Singh, the learhed J~dges have but
, formulated. broad guidelines to assist the Courts in deciding the vexed
question as to whether the death sente.nce is at all called for. c
Evidently, the judgment does not enlarge the scope of the rule in
Bachan Singh by broadening the narrow field of cases which call for
the death sentence. · ·
But, Machhi Singh is by the way. · The validity of the death D
sentence for the offence of murder having b.een upheld by this· Collrt
after a careful and prolonged discussion, there is no . justification
for reopening that question, though such a suggestion ,was made
half-heartedly before us, towards the conclusiqn of the arguments.
'The question that, in the .circumstances mentioned in Bachan Si11gh, .
it is permissible to impose the sentence of death must be treated . as E
.concluded and not.any longer open to argument. There has to be,
finality to litigation, criminal as much as civil, if law is not to lose
its _credibility. No one .of course can question that law is a dynamic
science, the social utility of which consists in its ability to keep
abrea.st of the emerging trends in soda! and scientific advance and
F
its willingness to readjust its ·postulates in order to accommodate
those trends. Life is not static. The purpose of law is to serve the
needs of life. Therefore law cannot be static. But, that is not to
s1y th>t J udgme»ts rendered by this Court .after a full debate should
be reconsidered every now and then· their authority doubted or
diluted. That would be doing disservice to law since certainty over G
a reasonably foreseeable period is the hallmark of law.
The learned Solicitor General · has. raised a preliminary
objection to these Writ Petitions on .. the ground that the question.
H
(I) [1983] 3 S.C.C. 470.
(2) [1973] 2 S.C.R. 541.
12 ' SUPREME coiill.T REI'ORTS (1984) l s.c.R.
A 'which is sought to be argued by the petitioners is concluded by the
judgmeut rendered by a Constitution Bench of this Court in Bachan
Singh. It is tirged that since the question is not res integra, it is
not open to the petitioners to raise it, nor· indeed. any reason. or
justification for this.Court to eutertain it. Learned counsel for the
petitioners, led by Shri R.K. Garg, answer this objection by contend-
B ing that the only question which arose in Bachan Singh was whether
it is constitutionally permissible to prescribe the sentence of death.
· It is urged on behalf of the petitioners that the question as regards
the validity of sec)ion 354(5) of the Code of Criminal Procedure .was
neither argued in Bachan Singh n.or considered by the Court.
c
The objection taken by the learned Solicitor General is not
'without substance but for reasons which we will presently indicate,
we do not propose to accept it. At page . 196 of the Report in·
D Bachan Singh,(') the main arguments of the 'Abolitionists' which
were, "substantially adopted" by counsel for the petitioners therein
are reproduced in clauses (a) (b) and (c). Under Clause (c), the
argument is reproduced thus : "Exe,cution by whatever means and
for whatever offence is cruel, inhman and degrading punishment",
E, by which is obviously meant 'execution of death sentence'. The
argument mentioned in clause (a) to the effect that the death penalty
is unconstitutiOnal because it is irreversible is considered at pages
196 and 197 of the Report. The arugment mentioned in clause (b)
as to whether death penalty serves any penological purpose at all is
considered at page 197. Though the arugments mentioned in
F clauses (a) and (b) at page 196 of the Report have been specifically
considered under separate heads as stated above, the argument
mentioned in clause (c) at page 196 relating to the execution of
death sentence has not been considered under a separate head.
The discussion of the, argument whether death penalty serves any
penological purpose, is concluded at the end of the third line on
G
page 222. Th~ heading "Regarding (c)" should have appeared in
the Report after the said third line and before the fresh paragraph
which beings thus : "We will· now consider the issue whether the
impugned limb of the provision.in section 302, Penal Code, contra-
H venes Article 21 of the Constitution". That this should have been
•o is clear from the fact ·that after considering the particular
argument at pages 222 and 223, Justice Sarkaria who spoke for the
majority concludes :
'I
DEENA v. UNION (Chandrachud, C.J.)
'
"Under the successive Criminal Procedure Code
• which have been in force for about 100 years, a sentence
of death is to be carried out by hanging. In view of the
, afore'said constitutional postulates, by no stretch of
imagination can it be said that the death penalty under
Section 302; Penal Code, either per se or because of its
execution by hanging, constitutes an unreasonable, cruel B
> or unusual punishment. By reason of the same consti-
tutional postulates, it cannot be said that the framers of
the Constitutiou considered death sentence for murder or
the prescribed traditional mode of its execution as. a
degrading punishment which Would defile ''the dignity of
the individual" within the contemplation of the Preamble c
to the Constitution".
Bhagwati, J., who dissented from the majority considerded the
question of the constitutional validity of the death. sentence, both
from the substantive and the procedural points of view. At page 286, D
the learned Judge says that "the worst time for most of the con-
demned prisoners would be the last few hours when all certainty is
gone and the moment of death is known", After extracting quotation
from Dostoyevsky and Canns which bear upon the execution of death
sentence, the learned Judge observes : "There can be no stronger E
words to describe the ·utter depravity and i.nhumanity of death
sentence". After making this observation Bhagwati, J., proceeds '
thus : ·
"The physical pain and suffering which the execution
of the sentence of death involves is also no le$s cruel and F
inhuman. In India, the method of execution followed
is haQging by the rope. Electrocution or application of
lethal gas has not yet taken its place as in some of the
western countries. It is therefore with reference to
execution by hanging that I must consider whether the
G
sentence of death is barbaric and inhuman as entailing
physical pain and agony. It is no doubt true that the
·Royal Commission on Capital Punishment 1949-53 found
that hanging is the most humane method of execution
and so also in Ichikawa v. Japan, the Japanese Supreme
Court held that execution by 'hanging does not corres-
,H
pond to ·cruel punishment' inhibited by Article 36 of the
Japanese Coi;istitution. But whether amongst all the
/
14 SUPREME COURT REPORTS (1984) 1 S.C.R.
'
methods of execution, hanging is the most humane or in
A view of the Japanese Supreme~Court, hanaging is not
cruel punishment within the menaing of Article 36, one
'thing is clear that hanging is undoubtedly accompained
by ii'ltense physical torture and pain.'' (emphasis ours).
B Thereafter, the learned Judge refers to the description of the' method
of hanging given by warden Duffy of San Quentin, a high security
prison in America and the description given in 1927 by a surgeon
who witnesses a double execution and records his conclusion by saying
that ,the passages extracted by him established beyond doubt that
"the execution of sentence of death by hanging does involve intense
c physicial -pain and suffering, through it may be regarded by some-as
more humane than electrocution or applicatitm of lethal gas."
This discussion will .show. that both the majority and the ,
minority in Bachan Singh cons.idered the question of the validity of '.
0 • the death sentence from the procedural aspect also, with special
reference to the method of hanging prescribed by law for executing
the death sentence. While upholding the validity of death sentence;
the majority did not overlook and, in fact, took into consideration
the cirmustance that the mode prescribed by 'the Criminal Procedure
Code. for executing the dea.th sentence is hanging. On~the other -\
E hand, while striking down the validity of death sentence Bhagwati,
'
J., was influenced by the consideration that the mode of hanging
prescribed by law for executing the .death sentence was itself cruel
and bar)Jarous.
F Though this k 'the true position, the reason why we are not
inclined to uphold the preliminary objection ·taken by the learned
Solicitor-General is that the , question as regards the consti-
,_. tutional validity of sectfon 354 (5) of the Code of Criminal Procedure
was neither raised squarely by the petitioners in Baqhan Singh nor
G considered directly by the Court. · If we may so put it, the
. questiqn as regads the validity of section. 354 ( 2) of the Code was not
directly and substantially in issue in Bachan Singh. The questions
which ·arose for consideration in that case are formulated in the .
majority judgment at p~ge 169 as Questions I and II. The
·H , majority referred to the mode of execution of the death sentence only
incidentally. The question whether the particular !'node of
executing the death sentence prescribed by section 354 (5) of the
Code violates the provisions of Article 21 was Jiot considered specifi
DEENA v. uNioN (Chandrachud, C.J.) ts
cally by the majority as in independent issue: Considering the judg•
ment of Bh_agwati, J., also as a whole, it would appear that A
the principal reason for which the ·learned Judge struck down
the death oentence is its itrevoc~bility, ils arbitrariness and its
lack .of. purpose. 01e of us was a party to the decision in Bachan
Singh and if recollections do not fail so soon and are permissible
! aids to the understanding of a decision it would not be right B
to say that the qu~stion as regards the constitutional validity of
-- . section 354 ( 5) of the Code was either directly put in issue in that
case or ·_was argued upon or was considered by the Court as an
independent reason bearing upon the validity of the death sentence.
The question wliich the petitioners have raised in these writ petitions
is importaJlt not only from the legal and constitutional point of view c
but also from the sociological point of view. It will not be proper
to side-track that_ question and refuse to examine it fully because of
the incidental consideration which it received in 'Bachan Singh.
- Accordingly, we reject the preliminary objection raised by the learned
Solicitor General and proceed to examine the question raised by the
D
petitioners on its own merits, on the basis that the question is still
open to argument.
The petitioners, who have been sentenced to death for acts of
outrageous brutality, have presented their case with _an air of
injured innocence. Their claim is that no· matter what pain and
E
suffering they may have iiifiicted upon their viCtims and their
families, no pain or suffering whatsoever sh'all be caused to them
while executing the 'death sentence. It is urged on their behalf by
Shri R.K. Garg and the other learned counsel that ·even if it may be
' lawful to impose the death sentence in an exceptional class of cases, F
it is impermissible to execute that sentence even in those cases, since
it is inhuman and cruel to take human life under any · circumstances, _
even under a decree of a Court.· That is the fundamental premise /
of the petitioners' contention. 'Secondly it is urged 'that the method
prescribed by section 354(5) of the Code for executing the, death
sentence is inhuman, barb.arous and degrading and therefore that G
method cannot be employed for executing the death sentence. It
is the constitutional obligation of the _State to provide for a humane
and dignified mo,de of executing· the death sentence, which will not
_involve torture or cruelty of any kind. It is urged that if the State
fails to discharge that obligation, no death sentence cari be .executed, H
howsoever justifiably it may have been imposed. The Code of
Criminal Procedure prescribes only one. method of executing the
•
/
16 SUPREME COURT l\EPQRTS [ 1984] 1 s.c.R.
death sentence, namely, by hanging and if that method violates the •
A mandate of Articie·21, the sentence must remain unexecuted, since
the Court cannot substitute any other method of execution for the
only method prescribed and envisaged by law. Finally, it is argued
that the burden·is on the State to prove that the method of execu•.
tion of the death sentence prescribed by section 354(5) of the Code
B is a humane and civilized method and that it does not involve pain,
cruelty or degradation of any kind. This is so because, the burden
to establish that any particular act, challenged as unconstitutional,
is just and fair always lies on the State. 'l'herefore, it is not for the
petitioners to show that any other method of executing the death
sentence would be less painful, cruel or degrading. According to
c the petitioners, ·the State must fail if it does not discharge the
. burden which lies heavily upon it. The petitions cannot be dismissed
on the ground that the petiti,oners have .failed to establish that the
method prescribed by section 354(5) involves unnecessary pain,
torture or cruelty; or that other methods of executing the death
D sentence are either not cruel or painful or are less cruel and painful'
than the method prescribed by section 354(5) of the Code. These
arguments require careful consideration, uninfluenced by the
circumstance that the demand for civilized, huµiane and painless
treatment is made by those who have been found guilty of subject·
ing their victims to uncivilized and inhuman acts involving great
E torture and suffering. The retribution involved in the theory "Tooth
for tooth' and 'an eye for eye' has no p)ace in the scheme of civilized
jurisprudence and we cannot turn a deaf ear to the petitioners'
claim for justice on the ground that the ·enormity of their crimes
bs resulted in grave injustice to the victims of these crime. •
F We are 'concerned to ensure due complaince with constitutional
mandates, no matter the occasion. If it were not so, smugglers who
are detained undet the laws· of detention shall have to be denied
the protection of Article 22 of the Constitution on the ground that
they are guilty of acts which sabotage the economy of. the country.
Justice has to be done dispassionately in accordance with the
G constitutional attitudes whether it is a murderer or a smuggler who
asks for it. Law cannot demand its pound of flesh.
At one stage we were inclined to decide the main question_ t
H argued by the petitioners without considering the rival contentions
as to the burden of proof. , We thought that whether the burden lies
on the petitioners to show that the method prescribed by section
354(5) of the Code is constitutionally impermissible or whether the
;.
DEENA v. UNION ( Chandrachild, C.J.) !7
. '.
burden lie;; on the State to prove that the particular method is
permissible within the frame work of the Constitution, we should
pronounce upon the legality of that method on the basis of .the data
which has been placed before us by the· both sides. The question
of burden of proof ceases to have the same importance when the
entire evidence is before the Court, each· side having placed before /
it such material as it CQilSid.ers necessary to support its c:;ise. But B
then, the fact that parties have prod•1ced their respective data· before
the Court does not absol\'e the Court from considering the question
whether, on the basis of the entire material before it, the burden
can be said to have been discharged by the party on whom it lies.
Besides, counsel engaged themselves into quite some argument over
the question of burden of -proof and since that question is of c
importance and arises frequently, it is just as well that we decide it.
We propose to decide that question before adverting to the . other
contentions raised on behalf of the petitioners.
It is urged by Shri Jethmalani who appears on behalf of the
D
Gov~rnment ot Karnataka, as also on·behalf of the Bar Bou'ncil of
India who were allowed to intervene in these proceedings, that every
statute carries with. it a strong presumption of constitutionality and
a heavy burden lies upon those who challenge that statute to dis-
place that presumption. In support of this submission, the learned
counsel relies principally on the decision of a seven-Judge Bench of
this Court in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr('),
which, he says, was not noticed ·in Bachan Singh. The learned
Attorney-General (the Solicitor-General became th~ Attorney-
General du!ing the heari_ng of these petitions), also argued that the
decisions 'of this Court have almost uniformly taken the view that
F
the burden to displace tlie presumptio1 of constitutionality lies on
. the person who challenges the statute as unconstitutional.
Most of the important decisions which have a ·bearing on the
. question of burden of proof have been noticed in the majority and
minority judgments in Bachan Singh. Sarkaria, J., speaking for the G
majority, has.summed up the position thus:
"With regard to onus, no hard and fast rule of
universal application in all situations, can be deduced
from the decided cases. In some decisions such as
H
(I) [1971) 2 S.C.R. 711.
•
1& SIJl>REME COURT REPORTS (198 4] 1 S.C.R.
Saghir Ahmed v. State of Uttar Pradesh(') and Khyerbari
A Ted Co. v. State of Assam & Ors.(') 'it· was laid down
by this Court that if the writ petitioner suceeds in
showing that the impugned Jaw ex facie abridges
or transgresses the rights coming under any of the
sub·ciause of clause (!) of Article 19, the dn~s shifts
B 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 pe applicable to the case,
and, a_lso .to place material before the court in suppoi't
of that .contention. If .the State does nothing in that
respect,_it is not for the petitioner to ·prove negatively ·
c that it is not covered by any of the permissive clauses. ·
"A contrary trend, however, is discernible in the
recent decisions of this Court, which_ start with the
initial presumption in favour of the -constitutionality of
D the statute and throw the burden of rebutting that pre-
s.umption on the party who challenges its constitut\onality
on the ground of Art 19.'.'
As an instance.of the contrary trend, Sarkaria, J., has cited the ,-1,
E judgment of Krishna Iyen J., in B. Banerji v ._ Anita Pan('), which
reiterates the ratio in Ram Kris/ma. Dalmiil(') to the following
effect : ' -
...
_
" ... : .. there is always a presumption in favour of the •
·corisititutionality of an enactment and the burden is upon
him who attacks it to show that there has been a clear
transgression of the constitutional principles"; and
" ...... that it must be presumed that the legislature
'understands and correctly appreciates the need of its own
G
people, that its laws are directed to problems made mani-
fest by experience and that its discriminations are based
on adequate grounds." "
H (I) (!955] 1 S.C .R. 707.
(2) [l964] 5 S.C.R. 975.
(3) r1<i1s1 2 s.c.R. 774.
(4) (1959) s.c.R: 279.
DEENA v. UNION (Chandrachud, C.J.) 19
Referring to the judgment of this Court in R.M.D. Chamal'baug·
wala(') and to the first proposition [in Chapter III of Seervai's
Con~titutional Law (Page 54, 2nd Edition; page 118, 3rd Edition)
Krishna Iyer, J. obser'vsed: ·
'
.I
''We have to' remember the comity of the constitu-
H tional 'instrumentalities and· raise. the presumption tli~t B
'
• the legislature understands and appreciates the needs of
the people and is largely aware of the frontiers of and
limitations upon its power. Some Courts have gone -to
~ the extent .of holding that there is a presumption in
favour of constitutionality, a,nd a law will not be declar-
ed unconstitutional unless the case is so clear as to be
c
__,,)
· free from doubt; and to doubt the constitutionality of a
law is to resolve it in favour of its validity."
Sarkaria, J., has finally' referred tb the Seven-Judge Bench decision
D
.... of this Court in Pathumma v. Stale of Kera/a('); in while Fazal Ali,
J.; speaking for himself, Beg, C.J., Krishna Iyer and Jaswant Singh•
JJ\ declared the law in the following terms :
"It is obvious that the Legislature is in the best
position to understand and appreciate the needs of the E
people as enjoined by the Constitution to bring about
social reforms for the upliftment of the backward and
the weaker sections of the soCiety and for the improve-
ment of the lot of poor people;; The Court will, there-
fore, interfere in this process only when the statute is F
clearly violat_ive of the right· conferred ·on the citizen
under ParfJII of the ,Constitution or when the Act is
beyond the legislative competence of the legislature or
such other grounds. It is for this !eason that· the Co.urts
have recugnised that there is always a .:presumption in
a
favour of the constitutionality of statute and the onus· G
to prove its invalidity lies on '.the party which assails the
same: In the case of Mohd. Hanif Quareshi v. The
State _of Bihar('), while adverting to this aspect Das, C 1.,
H
(!) [1957] S.C.R. 874.
(2) [1978] 2 S.C.R. 547.
(3) [1959] S.C.R. 629.
20 SUPREME COURT REPORTS [1984] ls.c.R.
as he then was, speaking for · the Court observed as
follows;
. '
"The pronouncements of this Court further +
establish, amongst other things, that there is always
a presumption in favour of the constitutionality of
B an enactment and that the burden is upon him, who
attacks it, to show· that there has been a clear
'violation of the constitutional principles. The
Courts, it is ac.cepted, must ·.presume that the
Legislature understands and correctly appreciat~s
the needs of its own people, that its laws are (lirected
c to problems made manifest by experience and that
· its discriminations are based on adequate grounds."
As we have said at the outset; these decisions have been discussed ,
in the majority ,and minority'jundgments in Bachan Singh.
D
The . decision of a Bench.· of seven' Judges on which Shri
Jethlilalani has placed strong reliance is the one reported in Mildhu
· Limaye. The question· which arose ·for consideration in. that case
was whether the provisions of section 144 and Chapter VIII of the·
Code of Criminal Procedure, could be said to be in the interests of
E public order in so far as the right of freedom of speech and
expression, the right of assembly, and the right to form associations ·
and unions are concerned and in the interests of the gene~al public
in so.far as they curtailed the freedom of movement throughout the
territory of. India. The petitioners and the intcrveners therein •
invoked the American doctrine of preferred-position for the funda-
mental rights, particularly the right to freedom of speech and
expression. Hidayatullah, C.J., who spoke for six learned Judges
(Bhargava, J. di,ssenting on another point) 'reviewed the preferred•
position doctrine and co11cluded that it did not any longer have the
support of the Supreme Court of the United States and therefore.
G in America, ..,unreasonableness of the law has to he established".
The learned Chief Justice proceeded to say :
·'In this Court the preferred-position doctrine has
H never found ground although vague expressions such as
'the most cherished rights', 'the inviolable freedoms',
sometimes occur. But this is not to say that any· one
Fundamental Right is superior to the ot.her or that
2i
DBBNA v.. UNION (Chandrachud, C.J.)
.'
I Article I 9 contains a hierarchy. Pre-constitution laws
' ·are not to be regarded as WJconstitutional. We do not A
start with the presumption that, being ·a pre-constitution
law, the burden is upon the State to establish its validity.
,All existing laws are continued till this Court declares
them to be in conflict with a fundamental right and,
therefore, void. The bu.rden must be plac~~ on those B
who contend that a particular la\v has become void after
the coming·into force of the Constitution by reason of
Article 13(1) read with any of the guaranteed freedoms."
' .
These decisions on the question of burden of proof must be C
divided into two categories : those. which deal wi.th the violation of
the equality clause in Article 14 of the Constitution and those others
with deal with the violation o~ the guarantees contained' in Article .
19. The leading decision on the former category of cases is Ram
Krishna Dalmia .jn which· Das, C.J ., formulated six principles as
emerging out of an analysis of the cases under Article 14. The D
passage at page 297 of the Report in which these principles are set
out has become a classic and a part of it li'as already appeared. in
this judgment as a quotation extracted by Krishna Iyer; J., in
B. Bqnerji v Anita Pan. It may bear repetition to say that. accord-
ing to the learned Chief Justice, ''there is ~!ways a presumption in £
favour of the constitutionaiity of an· encatment and the burden· is
upon him who attacks it to show that there bas been a clear trans-
gression of the constitutional principles" 'and that, ''it must. be
presumed that the legislature understands and correctly appreciates
the noed of its own people, that. its laws are direrted to problem~
made manifest by experience and that its discriminations ·are based F
on adequate grounds." The concludil!g words of the second of
these two principles show that ,the said principle is limited in its
application to cases arising under Article 14. . The question of
discrimination arises under Article 14 and not under Article J9 of
·the Constitution. Any case, even a locus c!assicus, ' is an authority ,G
, for what it decides. It is. permissible to extend the ratio of a
decisLon to cases involving identical situations, factual and legal,
but care must be taken to see that this is not done_ mechanically,
that is, without a close examination of the rationale of the decision
' .. which is cited as a precedent. Human mind, trained even in the H
strict discipline of law, is not averse 'to taking the easy course of
relying on decisions which have, become famous and applying their
ratio to suposedly ideatical situations. In Ram Krishna Dalmia, · tl\e
SUPREME COURT REPORTS [1984} \ s.c.il.
Court was dealing with a challenge to section 3 of the Commissions \
A of Inqufry A.ct, J 952 and the notification issued by the Cent~al )
Government under that section appointing a Commission of Inquiry
to inquire into and report on the,affairs of' certain companies. The ,
. Act was chailenged on the ground that it conferred an arbitrary
power on the Government to issue notifications appointing Com-.
. missions of Inquiry, while the notification was challenged on' the
B groun'd that the petitioners and their companies were arbitrarily
singled out for the purpose of hostile and, discriminatory treatment
.
and subjected to a harassing and oppressive inquiry. ' The principles
'
enunciated by the learned Chief Justice on behalf of the Court have .r
to be understood in the context of'these facts, the context being that
c the case before the Court involved considerations limited and (
germane to the application of Articte 14. Apart from certain other
questions which are noi relevant for our purpose, the entire dis-
cusion of the facts and. la'w in that judgment revolves round the
provisions of the Article. Indeed, Article 14 is the king-pin of the
decision in Ram Krishna Da/mia. If is wrong to treat the principles
D enunciated by the learned Cb ief Justice as of universal application
and, in that. process, to apply them to i case~ arising 'under other
articles of the Constitution, particularly Articles/19 and 21.
The principle which undedies Article 14 is that equals must be
treated equally, that is to say, that "laws must operate equ~lly on
E all persons under like. circumstances(l)". Article 14, though
apparently absolute in its terms, permits the State to pass a law
which makes a classification,' so long as the clas~ification is based on
intelligible differentia having a real nexus with the object which is
sought to be achieved by the law. In the generality of c~ses under
Article 14, the challenge is based on the tillegation that the impunged
provision is ·discriminatiory since ·it singles out tl)e petitioner fot
hostile treatment, from amongst persons who, being ,situated •.'
similarly. belong to the same class as the petitioner. . It is plain
that in,matiers of this nature, the petitioner has to pi'ead and prove
,_ that there are others .who are situated similarly as him and that he
G is singled out and subjected to unfavourable treatment. ,' As observed
.by Shah J. in Western U.P. Electric Power and Supply Co.· Ltd. v.
State of U.P.(') :
"Article 14 of the Constitution ensures equality
B among equals : its aim is to, protect' persons similarly
(1) Seervai•s Constitutional Lnw of India, Third Edition, p. 296.
(2) [1969] 3 S.C.R. 865, 870, .
bEENAi~· UNION (Chandrachud, C.J.) 23 '
placed against discriminatory treatment. It dpes not
however operate· against rational classification. A person A·
/ setting. up a grievance of denial of equal treatment by
law must establish that between persons similarly circum-
stanced, some were treated to their prejudice and the
differential trearment had no reasonable relation to the
·object sought to be a~hieved by the la)V." B
'
Whether there~re other persons ~ho are situated . similarly as the
petitioner is a question of fact. 'And whether the petitioner is
subjected to hostile discrimination is also a question of fact. That
is why the burden to establish the existence of these facts rests· on
the petitioner. To cast the burden of pr~of in such cases on the
c
State iS'really to ask it to prove the negative that no other persons
· are situated similarly as the petitioner and that, the treatment meted '
out to the petitioner is not hostile.
D
Thus, there is a fundamental distinction between cases ansmg
under Article 14 and those which arise under Articles 19 and 21 of
the Constitution. In a challenge based on the violation of Articles
19 and 21~ the petitioner has und.oubtedly to plead that, for example,
his right to free speech and expression is violated or that he is
deprived of his right to life and personal liberty. But once he shows
that, which really is not a part of the "burden of proof", it is for.
the State to justify the impugned law or action by proving that, for
example, the deprivation of the petitioner's right to free speech and
expression is saved.by clause (2) of Article 19 since it is in the nature,
•
ofa reasonable restriction on that right in the interests of matters F
mentioned in clause (2), or that, the petitioner has been deprived
Of his life or personal liberty according to a just, fair and reasonable
procedure established by law. In cases, arising unqer Atticle 19, •
the burden is .never on the petitioner to prove 'that the restriction is
not reasonable or that :·the restrictfon is not in the interests . of
matters mentioned in clause (2). Likewise, in ~asse arising·under G
Article 21, the burden is never on the petitioner to prove· that. the
procedure ~prescribed by law which deprives him of his life or
personal liberty is unjust, unfair or unreasonable. That is why the
• ratio of cases which fall under the category of the decision in
Ram Krishna Dalmia must be restricted to those arising under H
Article 14 ·.and cannot be extended to cases arising under Article 19
or Article 21 of the Constitution. ·
24 SUPREME COURT REPORTS · (1984) 1 S.C.R.
· Saghir Ahmed v. The State of U.P. is a typical instance of a
A case arising under Article 19 of the Constitution. The u:P. Road
Transport Act, 1951 which was passed prior to the Frist A.menrnent
Amendment' to the Constitution which introduced clause (6) in
Article 19; was challenged in that case on the ground that it conflicted
with the fundamental right of the petitioner guaranteed under Article
8 19 (I) (g) of the Constitution. Dealing with the question of burden .
· ofproofMukherjea, J., who spoke for the Constitution Bench, stated
the position thus :
"With regard to the second point. also we do not
think that the learned ·Judges have approached the •
c question from the proper stand · point. . There is
undoubtedly a presumption in favour of the constitutiona-
lity of a ·legislation. But when the enactment on the
face or"it is found to violate a fundamental right guaran-
teed under Article 19 (1) (g) of the Constitution, it must
D be held to be invalid unless those who support the
legislation can bring it withill the purview of the exception
laid down in clause. (6) of the article. If the respondents '
do not place any .material before the Court to establish
that the legislation comes within the permissible limits of
clause (6)., it is surely not for the appellants to prove
E negatively that the legislation was not . reasonable and
, was not conducive to the welfare of the community."
I
(Page 726)
•
When the enactment on the face. of it is in violation of a
F fundamental right guaranteed by Article 19, the petitioner is abso-
lved even of that modicum of. an obligation to show that a right
guaranteed to him by Article 19 is violated. When th~ face of the
. law is not so clear, the petitioner. does have .to discharge the
obligation of proving the fact of deprivation. But, that only and
nothing more.
G
A similar question arose in Khyerbari Tea Co. Ltd. v. The
State 'of Assam, where the Assam Taxation (on Goods carried by
·road or on Inland Waterways) Act, 19.61 was challenged on the
.. ground that it placed unreasonable restrictions on the freedom cif
H treade guranteed by Article 301 and infringed the provision of Article
19 (I) (g) of the Constitution. The Act was npheld by a
Constitution Bench of this Court by a majority of 4 to. I,
DEENA v. UNION (Chandrachud, C.J.)
Gajendragadkar J., who spoke for the majority, relied on the decision
in Saghir Ahmed and s~id : A
"It is true that on several occasions, this Court· has
generally observed that a presumption of constitutionlity
arises where a statute is impeached as being unconsti-
tutional, but as has been held in the case of Saghir B
Ahmed in regard to the fundamental right under
Article 19 (I) (g), as soon as the invasion of the right
is proved, it is for the State to prove its case that tht;
impugned legislatibn falls within clause (6) of Article 19~
The position may·be dilferent wheu we are dealing with
Article 14, because under that Article the initial presump-
c
tion of constitutionality may have a larger sway inasmuch
as is may place the burden on the petitioner to show
that the impugned law denied equality before the law,
or equal protection of the laws.· We may in this connec-.
tion refer to the observations made by this Court in the D
case of Hamdard Dawakhana v. Union of India\').
Another principle which has to be borne in mind in
examining the constitutionality of a statute, it was obser-
ved, is that it must be assumed that the legislature
understands and appreciates the needs of the people and
E
the laws it ena~ts are directed to problems which are
made manifest by experience and that the elected
representatives assembled in a leJ;lislature enact laws which
they consider to be reasonable for tho purpose for which
they are enacted. Presumption is, therefore,'in favour of
• the constitutionality of an enactment. It is significant F
that all the decisions to which refernce is made in support
of this statement of the law are decisions under Article 14
of the Cons1itution. Mr. Setalvad has fairly 'conceded
that in view of the decision of this Court in the case of
Saghir Ahmed, it would not be open to him to contend
that even after the invasion of the. fundamental right of G
a citizen is proved under Article 19 (1) (g), the' onus
would not shift to the State. In our opinion, the said
decision is a. clear authority for the propositi~n that once
the invasion of the fundamental right under Article 19
(I) is proved, the State must justify its case under clause H
(I) [1960] 2 S.C.R. 671, 679:
~tJPRil!.IE COURT .REPoRTs [19841 l s.c.!t
(6) w~ich is in the na.ture of an exception to the main
A provisions i:ontained in Article 19 (!). The position with
regard to the onus would be the same in dealing with the
law passed under Art. 304(b). Jn fact, in .the case of
such a law, the position is' some what stronger in favour .
(of the citizen, because the very fact that a law is passed
•under Article 304(b} means clearly that it purports to
B restrict the freedom of trade. That being so, we think
that as soon as it is shown that the Act invades the right
of freedom of trade, it .is necessary to enquire whether the
State has'proved that the restrictions imposed by wa;x of
taxation are reasonable and in the public interest within
c the meaning of Article 304(b). This enqµiry would be of
a similar character·in regard to clause(6) of Article i9".
(pp 1003-4). (emR,hasis supplied).
.,
The observations made by Gajendragadkar J, in .regard to
D the position arising under Article 304(b) are apposite to cases under
article 21. Article 304(b) provides that, notwithstanding anything
in article 301 or article 303, the Legislature of a State may by law
"impose such rea<;onable restrictions on the freedom .of trade,
commerce or intercourse with or within that ·State as may be
required in the public interest". According to the learned Judge,
E in the case cif a law passed under 'Article' 304(b) the position on the
'question of burden of pro~f is somewhat stronger in favour of the
citizen, b.ecause the very fact that the law is passed under that
Erticle means clearly that, it ,purports to restrict the freedom of
trade, By analogy, the position is also somewhat stronger·in favour
F of the petitioners in cases. arising under Article ii, because the
\ very fact thiit, in defence, a la~ is relied upon as prescribing a pro-
cedure fcir depriving a· person of his life or personal liberty mearis
clearly that 'the law purports to deprive him of these rights.
Therefore, as soon as it ,is shown ,that the Act invades a right
guaranteed by Article 21, it is necessary to enquire whether the
G State has proved that the person has . been deprived of his life or
personal liberty a,ccording to procedure established by law, that is
to say, by a procedure ,which is just, fair and reasonable. -
( .
''
Another decision in the same category of cases is Mohd. Faruk
H v. State of Madhya Pradesh('), in which the State Government
(l) [ 19701 l S.C.R. 156.
' \
\
ntEN.~ "·' . UNioN (Chandr~clzud, CJ,) 21
>' ' ' - .
issued a notification cancel!fog the confirmation of ,the Muncipal-
bye-laws in so far'as they related to the permission to the slaughter· A .
ing of bulls and builocks. Dealing with • the· chalienge . of the
petitioner to the notification ,on •the ground that it· infringed ,his
fundamental right under Article 19(l)(g) of tile Constitution Shah,
J.,who spoke for the Constitution Bench, observed: · · \.
"When the 'validity of a law placing restriction upon
the exercise of fundamental rights in Art. 19(1) is
challenged, the onus of proving to the. satisfaction of the
Court that the restriction is reasonable )ies upon the
•:\..
:/ State. . . ; ... Imposition of restriction on the exercise o~ a
c
.
fundamental right m~y be in the form of control 'or pro· '
hibition, but when, the exercise .of a fundamental right
is prohibited, the burden of proving that a total ban on
the exercise of the right alone may ensure the maintenance
of the · general public, interest lies heavily . upon the
State~" (pp. 160-161) D
When, in a matter arising under Ar'tic!e 21; the 'pers.on aggrieved is
found to, have been totally deprived. of his personal liberty or }s :
being deprived of his right to life, burden of proving that the
procedure established by law for such · deprfvation is ·.just, fair and E
reaso~able lies heavily upon tbe State. , · •
/.
I.
· This' dicussion will be incomplete without a close examination
of the decisions
,
, of this" Court· in B. Banerjee
I
v.1 Anita
.
Pan and
Patlzumma. v. State.of Kera/a, which have been.referred to ,by
· Sarkaria,. J., in .Bachan' Singh as evidencing a. "contrary trend" F
according to which, even iii regard to cases under Article 19, there.
is an initial presumption in . favour of the constitutionality, of the ·.
statute and the burden. of rebutting that ·presumption lies on the · , ,
-. , ' ' ) I
person who asserts that the. statute is unconstitutional. · ln 1B. ·.
Banerjee, a three-Jtidge Bench of this Court had to consider the G
question whether sub;secti.Jn (3A) which was introduced fo' section ·
. 13 of the West Bengal·Premises Tenancy Act, 1956 was· violative oC ·
Article 19(1)(£) of the Constitution. By the newJy introduced sub· .
, section; the transf~ree of a. property cannot file an eviction suit
against his tenant for a_..period of three years' from· the date of ~;,H
transfer, on the grounds mentioned in Clauses (f} and (ff) of. section
13(1) of the Act.. We have already extracted the relevant passage
from the judgment of Krishna Iyer, J., who spoke for 'the ·Court in .
.;
28. SUPREME COURT REPORTS ---· ,,_ [1984] 1 s.c.i\.
that cas/ The learned Judge said that presumpiion had to be
A raised that the legislature understands and appreciates the needs· of .f
the people and that some. courts had gone to the extent of holding
that because of the_: presumption of constitutionality which . every '
statuto carries with it, the bw will not be decla.red unconstitutional
unless the case is so clear as. to . be, free from 1• doubt. · The learned
·n Judge added, citing Seervai, that "to doubt. the constitutionality. of ·
a law is to r!'solve it in favour of its validity".· With great respect,
the judgment in· B. Jlanerjee overlooks the binding· dec:sious in
Saghir Ahmed, Klzyerbari Tea Co. and Mohd. Faruk which are
directly in point. Not only are binding decisions not referred to hi
the judgment but, in suoport of the view propounded by the Court,
c Krishna Iyer, I., has cited the decision in Ram Krishna Dalmia which,
as we have stated earlier, must be limited in its application. to cases
arising under Article 14.ofthe Constitution. To apply mechanically
the decisions under Article 14 to case.s arising under Article 19 is to
ignore the signifi~ant distinction between the nature of th,e rights ' -
conferred by the two articles and their purport and content. B.
D
Banerjee cannot therefore be regarded as an authority .for ·the pro•
.· , .. po.sitiori contended ·for by tile learned Attorney-General. Evidently,
the landlord's contention that a beneficent provision, aimed at the
protection of tenants harassed by motivated transfers of propenies,
was unconstitutional evoked a stern response. That is understand-
able. But, in the process of highlighiing the need for. social welfare
·legislation in the area of landlord-tenant relationship, the distinction.
between Article ·J.4 . and Article 19· in so far .
as it bears npon the.·
question of.burden of proof failed to receive any ·attention. The
Bar too would seem not to have drawn. the attention of the Court·
to that distinction and to the judgments which we have discussed
F
a little earlier.
'
Pathumma is a seven-Judge Bench decision on the question
whether the restrictions impos.ed by the Kerala 'Agriculturists (Debt
G Relief) Act, 1970 ·violate Article ,19(1)(f) and Article 14. The
appellants therein chall~ng~d section 2'0 of the 'Act- particuiarly,
which -entitles· agricultural debtors to recover· propenies sold in
.!xecution of decrees passed against . them, Fazal Ali, J., .who spoke ·
four out of the seven learned .Judges, refers at the outset of the ·.
H judgment to. the "approach which a Court has to make and .the
principles by which it has to be guided in such. matters". ·. After
stating that the Courts must interpr_et the Constitution :
DEENA Y. UNION (Chandrachud, C.J.) 29
( "against the social setting of the country so as to
show a complete consciousness and deep awareness of the' A
growing r~quirements of t~e society, the increasing needs'
of the nation, the burning problems of the day and the
complex issnes facing the people which' the legislature in
its wisdom, through beneficial legislation, seeks to solve".
n
· the learned Judge observes that since that the legislature is in the
best position to understand and appreciate the needs of the people,
the Courts have recognised that there is "always" a presuption in
f~vour of constitutionality of a statuie and the onus to prove its
invalidity lies on the party which assails the same. In support . of
·~,
this proposition, the learned Judge .relied upon the decision of this c
Court in Mohd. HanifQuareshi v. The State of Bihar, in which Das,
C.J., restated the two propositions which were enunciated in Ram
Kr(shna Dalmia.
We find it difficult to read the observations made by Fazal D
Ali, J. on behalf of the four learned Judges as an authority on the
question of burden of proof in cases arising under. Article 19 of ihe
Constitution. It is true that section 20 of the Kerala Act of 1970
was challenged on the ground that it violates Article 19 (I) (f) but
it must be emphasised that it was aim challenged on the ground
E
-
that sub"sections (3) and (6) thereof were violative of Article 14.
The observations made by the learn~d Judge and the statement of
la,;. contained in his judgment would certainly apply to cases· arising
under Article 14, for reasons which we have already discussed. It is
reasonable to suppose that if, by the use of the, word "'always", it
was intended to lay down rules as to brird.en of proof in regard to
cases arising under Article 19 also, some reference would have ,been
made by the learned Judge to the .Constitution Bench decisions in
Saghir Ahmed, Khyerbari Tea Co. and Mohd. Faruk. The fact that·
these decisions have not been referred to supports the inference that
the obsei:vations made by the learned Judge at the ·outset of the
judgment are of a general nature, not intended to apply to cases G
arising under Article 19 of the Constitution. The Court, as we have
said, was also dealing with a challenge under Article 14 and the
weighty observations made by the learned Judge w0 uld apply to the
arguments arising under that provision.
·H
In support of the principles set out by him, Fazal Ali, J.;
relied upon the decision ofa Constitution Beach of this Court in
30 SUPREME COURT REPORTS (1984] 1 s.c.a.
Mohd, llanif Quareshi. In that case, laws passed by the States of
A Bihar, U.P. and· Madhya Pradesh, banning the slaughter of certain
animals were challenged by the peti.tioners on the ground that those
laws violated ·the fundamental rights guaranteed to them by Articles
14, 19 (I) and 25 of the Constitution. The Court, speaking through
Das, C.J., first disposed of the preliminary question· raised by
B Pandit Thakurdas Bhargav~ that since the impugned Acts were .·-'.,
passed in discharge of the obligation laid on the State by the
Directive Prinbple contained .in Article 48, no grievance could be.
made that those laws violated the fundamental rights conferred on
'the petitioners ·by Chapter Ill of the Constitution. The Court
rejected the preliminery obection and turned to.I.he second question
C' .as to whether the laws passed by the Legislatures of the three States
violated the provisions of Article 25(1) of the Constitution. After
rejecting that contention also, the Court took up for consideration
· -the argument of the petitioners as regards "the denial of the equal
protection of the law" to them. The petitioners' argument was that
D the impugned Acts prejudicially affected only the Muslim Kasa'is
who ·kill cattle but not others who kill goats and sheep and therefore
those Acts were violative of .Ariicle 14 of the Constitution. It is
while dealing with this contention that the learned Chief Justice
made observations which have been extracted by Baza! Ali, J. The
obsen,~tions made by the learned Chief Justice ~egarding the
E presumption of constitutionality and the burden being upon the
-
person who attacks it are specifically made in the context of Article
14 as in Ram Krishna Dalima. We are therefore of the opinion that
the principles stated .by Fazal An, J. 'on the question of burden of
proof ill Pathumma may apply to cases arising under Article '14 but
F not to those arisipg unde.r Articles 19 and 21 of the Constitution. In
fact, in Laxmi Khandsari v. State of U.P.,( 1) Fazal Ali, J., sitting with
Kaushal, J., said that "It is no doubt well-established" that when
a citizen complains of the violation of a fundamental right conferred
by Article 19; the onus is on the State to prove "by acceptable
G evidence, inevitable consequences or sufficient materials" that the
rest~iction -is rea.sonable.
\
Bhagwati, J., in ·his diesenting op1mon in Bachan. Singh has
·expres~ed the view that the observations made by 'Krishna Iyer,
J., in B. Banerjee andcby Fazal Ali, J., in Pathumma cannot apply
H to cases' arising under Articles 19. and 21 of the Constitlltion. We
respectfully agree with that view.
(1) [1981) 3 S.C.R. 92..
'
DEENA v. UNION (Chandrachud, C.J.) 31
-i °The seven-Judge Bench decision in Madhu · Limaye, on which
Shri Jethmalani •relies, invO!ved a challenge tol sectioq 144 and A
Chapter VIII of the Code, of Criminal Procedure on the ,ground
that those provisions violated clauses (a), (b), (c) and (d) of Article
!9 of the· Constitution. We have already extracted the passage
from ·the judgment delivered in that case by Hidayatullah, C.J.,
on which the learned counsel relies. ·That passage. shows that the D
Court was considering the argument advanced by the petitioners
that the preferred-position doctrine, which was said to be in vogue
in America, was appiicable in India. 'The argument was that,
according to that doctrine, any law restricting the freedom of speech
\
• and expression, religion or assembly must be taken on .its face to be
invalid till it was proved to be valid. Holding that the doctrine did C
not have the support of even the American Supreme Court any
longer and that the unreasonableness of the law had to' be esta-
blished; the learned Chief Justice observeJI : "We do not start with
the presumption that being a pre-constitution law, the burden is · upon'
the State to establish its validity,,. Therefore, according. to the D
learned Chief Justice, "the burden must be placed on those who
contend that the particular law has become void after coming into
force of the Constitution by reason of Article f3(1) read with any of
the guaranteed freedoms". (emphasis supplied in both the quotations).
These observations may at first blush seem to support. ~hri
Jethmalani's contention but, as we have stated earlier, it is wrong E
to extned the ob serva'tions malle in one context to an entirely diffe·
rent context. The question which was considered .in. Madhu Limaye
was whether certain provisions of the Code of Criminal Procedure,
. which is a pre-Constitution law, .are violative of. the Constitution.
The Contention was that tqe Code of Criminal Procedure is a pre: F
Constitution Law and therefore the State must ·justify the consti-
tutionality of that law. Th•t argument was reje~ted, with the observa-
tion that "we cannot start with the presumption that a pre-
Constitution,law is unconstitutional therefore the burden lies upon
the State to establish its validity". · The specific observation on the
question of butden to the effect that the burden .lies on ·those who G
challenge·the constitutionality of a law, is also made expressly in
regard to the provisions of Article 13 (!) of the Constitution which
. ...
.
provides that the ia ws which were in force before the commencement
of the Constitution shall, in so far as they are inconsistent with the
H ··
l provisions of Pact HI, be void to the·. extent of· Jmch inconsistency.
1 Shri Jethmalani is right that Madhu Li maye was not noticed in
32 SUPREME COURT REPORTS (198411 S.C.R.
Bachan Singh; but we are unable to accept his contention that th~
/ A decision is an authority for the proposition that the same rule of
burden. of proof must apply to all constitutional challenges,
whether under Article 14, 19 or 21 of the Constition. '
We must hark back to Bachan Singh .
,,;ith ·which
-.... we began the
B discussion of the question as regards the burden of proof. Sarkaria,
J. observed in the majority judgment that "with regard to the onus,
no hard and fast rule of utliversal application in all situ..tions could
be deduced from the decided cases". We have made a modest
attempt to show that cases arising under Article 14 are ~overned by
c a rule as to burden of proof which is different from the rule which
applies to cases arising under Articles 19 and 21 of the Constitution.
In that sense, it is true to say that there is no hard and f~st rule of
. universal application which can be applied alike to all situations.
We have also dealt wit1' the two decisions in B. Banerjee and
Pathumma which the Court had evidently in mind when it spoke of.
D a·' contrary trend" which was discernible in the later decisions of
the Court. After referring to the Indian· and the. American cases
bearing on the subject, the majority. recorded its conclusion by
saying that ''the State has discharged its burden" ·to establish that
death. penality serves a~ a deterrent, by producing the necessary data.
We are referring to this aspect of the decision in Bachan Singh in
E
-
order to show that the judgment of the majority proceeded on the
basis that the burden of proving the constitutionality of section 302 ·
was on the State and that the State had successfully discharged that
burden. Thus, Bachan Singh is an authority ·for proposition that
in cases arising under Article 21 of the Constitution, if it appears .
· that a person is being deprived of his life or has been deprived· of
F his personal liberty, the burden ·rests on the State to establish the·
constitutional validity of the imp~gned law.
That disposes of the question of burden of proof. In the light
. of thi~ disdussion, we must proceed to examine the question whether ·
the State has discharged the burden of' proving that the provisions
·of section 354(5) of the Code of Criminal Procedure are in confor-
mity with the mandate · of Article 21. Consistently with "ihe
conclusion which we have 'recorded on the question of burden of
H proof, we must hold that the burden does not lie on the petitioners
to prove that the procedure prescribed by the aforesaid provision /
for taking life is unjust, unfair or unreasonable. The impugn~d
statute, on the face of it, provides for a procedure for extinguishing
DEENA v. UNION ( Chandrachud, C.J.) 33
life. Therefore, not even the initial obligation to show the fact of
deprivatiqn of life or liberty rests on the petitioners. The State
must establish that the procedure prescribed by section 354(5) of the
Code for executing the death sentence ·is just, fair and reasonable.
That burden includes the obligation to prove that ,the said procedure
is not !iarsh, cruel or degrading.
B
Has the State discharged this heavy onus? We have already
• set out the grounds on which the petitioners challeng~ the constitu-
tionality of section 354(5) of the Code of Criminal Procedure which
provides that "When any _person is sentenced to death, the sentence
shall direct that he be hanged by the neck )ill he . is dead". Stated
brietlly, the contention of the petitioners is that section 354(5) ofthe
c
Code is bad because :
1. It is impermissible to take human .life even under
the decree of a Court since it is inhuman to take life
under any circumstances ; D
2. By reason of the provision contained in Article 21,
it is impermissible to cause pain or suffering of any
kind whatsoever in the execution of any sentence, .
r
much more while executing a death sentence; E
- 3.
. 4.
The method of hanging prescribed by section 354 (5)
for executing the death sentence is barbarous,
inhuman and degrading; and
Jt is the constitutional obligation of the State to
F
provide for humane and dignified method for execut-
ing the death sentence, which does not involve
torture of any kind. If the method' prescribed by
section 354(5) does not meet this requirement, no
death sentence can be executed since, no other G
method for executing that sentence is presciibed by
or is permissiOle under the law.
These arguments are answered by the learned Attorney General
by contending that a sentence lawfully imposed by a Court can and H
has to be executed; though by causing the least pain and suffering
and by ~voiding toruture of degradation of any kind; that the
method prescribed by sectio11 354(5) for ei<ecu~in{l tbe \}eath s~nte11c~
34 SUPREME COURT REPORTS (1984] 1 S.C.R.
is a humane and dignified method which involves the least amount
of pain and. cr'!elty; that no other method . of executing the death
sentence is quicker or less painful; that Amcle 21 does not postulate
that no pain or suffering what sover shall be caused in the execution
of a sentence lawfully imposed by a Court, including tne sentence of
death; and that, since the method of llanging prescribed by section
8 154(5) does not suffer ·from any constitutional infirmity, the question
of the Court substituting that method by any other method does not
arise for consideration. •
While supporting these arguments. of the Attorney General,
Shri .Ram Jethmalani added th~t unless, on the face of it, the method
c - prescribed by a law for executipg a sentence is reyolting _to the
conscience, the Courts must surrender. their discretion to the
legislative judgment when the. challenge to ihe. constitutionality of
the law is based on considerations which the Court is not equipped
to evaluate by manageable judicial standards. According to the
D learned counsel, the Court's evaluation of the method of hanging
prescribed by law shall have to be inevitably subjective, almost to
the point of being legislative in character; which must be avoided
at all costs·. The legislature has recognised means at its command
for seif-education like the Law Commi.ssions, the. expression of
public opinion; the_ result of scientific investigations, the sociological
advance and; last but not the least, the unfettered freedom available ·
to the l~gislators to discuss matters of moment on the floor of the
House and to keep them under constant scrutiny. ''.Hands off .the
Hanging" is the sum and substance of Shri Jethmalani's argument.
New dimensions were added to these arguments by the other
learned counsel. For -example, Shri Salman Khurshid advocated
that instead of' putting out life fot ever by executing the death·
. &entence, persons sentenced to death should be deprived of their
eye sight by blinding them so that, Wand when they are •reformed,
they could be given back their sight by transplantation or by
G whatever method medicine may "discover for restoring the eye sight.
In the meanwhile, says counsel, justice shall have been done.
First, as to Shri Jethmalani's argument that we should leave
H to the legislative wisdom the question as to how . best the death·
0
Sentence should be executed and that we should ,not project our
subjective views into. the decision of that question. ·We find it
lmJ?OS.sible to accel't this ari,iument. Mat~ers of J?Olic.y are certainly
DEENA v. UNION (Chandrachud, C.J.) . 35
j for the· legislature to consider and therefore, by what mode or
';
method the death sentence should be executed, is for the legislature A
-to decide. As stated in Grega v. Geargia,(') in a democratic, society
legislatures, not Courts, ·are· constituted to respond to the moral
values of the people. But the function of the legislature ends with
providing what it considers to be the best method of executing the
geath sentence. Where the function of the Iegislaiure ends, the B
fonction of the judiciary begins. It is for the.· Courts to decide , upon
y'
the constitutionality of.the method prescribed by, the legislature for
implementing or executing a sentence. Whether that method
conforms to the diCtates of the Constitution is a 'matter not only
subject to judicial review but it constitutes a legatimate part of the
judicial function. As Judges; we cannot abdicate the obligation 'C
imposed upon us by the Constitution and throw our hands in despair
with the consolation that after all, the chosen· representatives of the
people have willed that hanging is the best method of executing 'the
death' sentence. We respect the judgment of the people's representa·
tives to the exent, but only to the extent, that as a matter' of policy
D
they considcre.d that the method of hanging provided by section
" 354(5) of the Code is the least objectionable method for .executing
·the. death sentence. But, what the policy judgment of the legislature
leaves· outstanding for the Court's consideration is the question
whether the particular method prescribed by law for executing the
death sentence is in consonance with the Constitution.· This latter E
question is manifestly for the Courts to decide. , The decision of that •
question inevitably involves a value judgment based upon a compara·
tive evaluation of alternate methods for executing the death sentence
but, more than any 'such comparat,ive evaluation, our plain and
primary duty is to exainine whether, even if the !Dethod selected by
the legislature is· the least objectionable, it is still open to the F
---.,_ objection that in involves undue torture, ·degradation and cruelty
as, for example, by causillg more pain thaii is strictly necessary· or
by bringing about a lingering death or because_the particular method
·is liable, frequently, to fail in its mechanism. Our task will end
with pointing out why, if at all, the method at present' provided by G
law is contrary to the mandate of the Constitution, even if it be less
objectionable than any other commonly ac<epted method _of execut-
ing the death sentence. We will not legislate by directing the sin'Ce,
if at all, the provision contained in section 354(5) is unconstitutional,
the death sentence imposed upon the petitioners shall be executed
(I) 49 L.Ed.2d, 859,
.36 SUPREME COURT REPORTS· (1984] 1 s.c:R.
by the method of electrocution or gas-chamber or lethal injection
or shooting or gillontine and the like. Nor can we direct, as convassed
by Shri Khurshid, that the petitioners be temporarily blinded. That
would be legislating. To pronounce upon the constitutionality of a Jaw
is not legislating, even if such pronouncement involves the conside-
ration of the evolving standards of the society. 'Cruelty' and
'torture' are not static concepts. That is why, the choppi°iig off of
B
limbs which was not considered cruel centuries ago or, is n.ot
considered cruel in some other parts of the world to-day, is impossi-
ble to conceive as a punishment by applying tile contemporary
.standards of the Indfa)l society. What might not have been regarded
as degrading or inhuman in days by gone may be revolting to the
c new sensitivities which emerge as civilization advances. The impact
and influence of the awareness of .such sensitivities on the decision
of the Jaw's validity is an inseparable constituent of the judicial
function.
This Court is not a third Chamber of the legislature. It has
'
• no such extra-territorial ambitions and it' does not .aspire to do the I '-fr
·job of 'out-riders', to use an expression Lord 'Devlin. His simply
the· highest Court of law and justice in a country ~overned by a
written Constitution, which, it is its primary and exclusive function
to interpret. The care which we must take is that while interpreting .
E the Jaws and the Constitution, we ought not to be swayed by passing.
passions or by populist sentiments. We mui\t do our duty by the
Constitution, unaffected by· extraneous considerations ·and guided ·
solely by the obligation to be fair and just, almost to a fault.
F The State seeks to discharge its burden by relying upon the
Reports of Commissions which are based on results of scientific
investigation into the mechanics of the· hanging process, the opinions
of text-book writers, the predelictions of sociologists, the proclivities
of reformers and, of course, juristic exposition of the C!>mplex issue
"to hang or not to bang". To some of these we must n:>w turn.
G
In the year 1949 the Government. of Umted · Kingdom
appointed a Commission to report upon the various facets of the
B
capital punishment. The Commissio_n submitted its report in
September 1953 after extensive research into the questions referred ..
to it and after interviewing experts, visiting jails and examining the
merits and demerits of hanging as a method for· executing the death
sentence. Chapter 13 Qf the Royal C\lmmis.sion's Report deals wit!\
DEENA v. UN101-1 (Clumdrachud, C.J.) 37
the "methods of execution". In paragraph 700 of that Chapter
the Commission records that it heard eviedence on the existing A
method of hanging from various witnesses, including Prison
Comlllissioners and Prison officials, one Mr. ·A. Pierepoint, "the
most experienced executioner in this· country", and under-sheriffs
responsible for execution in London and Lancashire. The Commis-
sion inspected execution chambers in England and Scotland and was B
given demonstrations of the procedure at an execution. They also
received evidence about executions in the United States by means
of electrocution and lethal gas. During their visit to the United
States, they took the opportunity of inspecting the electric chair in
two prisons. Lastly, they questioned medica\ witnesses about
possil)le new methods of execution. c
In paragraph 703 of the Report the Commission notes tha~
public opinion was disturbed by evidence that. the task of hanging
was sometimes bungled. In 1885 a condemned murderer bad to D
be reprieved after three unsuccessful attempts bad been made to
hang him. There were also other untoward occurrences :
Occasionally, a man might be given too short ·a drop and die slowly
/ of strangulation, or too long a drop and· be decapitated. A Com-
mittee was therefore appointed in U.K. in 1886 to report on the best
way of ensuring "that all executions may be carried out in a becom- E
ing manner without risk of failure or miscarriage in any respect" ..
- This Committee made recommendations about. the length of drop,
improvements in the apparatus and preliminary tests and precautions
.which were designed to ensure speedy and painless death by dislo-
cation of the vertebrae without decapitation. .The improved system
of. hanging now in vogue came into bei.1g as a result of the
recommendations of this Committee. The Home Offic.e informed
the Commission that "There is.no record during the present. century
of ani failure or mishap in connection With an execution, and, as
, now carried out, execution by hanging can be regarded as speedy and
certain";
G
In paragraph 704 of the Report, the Commission· says that ·it
was "on the score of h'umanity" that execution by hanging was
• defended by witness after witness. The Prison Officers held the
system o( hanging.to be as humane as circumstances permit, while H
the Prison Medical Officers said "We cannot conceive any other
method which ould he more humane, efficient of expeditious than
judicial banging The Prison Chaplains called it "simple, hamane
SUPREME couin REPORTS [1984) i s.c R,
and expeditions". ·The British Medical Association told the
A Commission that "hanging is probably as 'peedy and certain as- any.
other method could be adopted. The Royal Medico-Psychological
Association, after stating that the method of execution ought to be
"certain, humane,' simple, instantaneous a:nd expedit_ious", said :
"On the information JlVailable to the Association, the method of
B hanging fulfils these criteria more satisfactorily than any othor M
far proposed or in practice''. A knowledgeable witness told the
' Commission that the method of hanging was ."certain, painless,
simple; humane.and expeditious".
c - · In paragraph 705 of the Report, the Commission refers to the
ititere~ting development that the method of execution whose special
merii was originally thought to be that it was peculiarly degradilljl
and therefore deterrent, was defended before it on the ground that
it was uniquely humane. The reason for this surprising inversion .
is that·as a result of the recomm'endations made by the Committee
D which was appointed in 1886, "a method originally barbarous .........
.has been successfully humanised''. · '
In Paragraph 708, the Comll)ission proceeds to examine the
question whether there is any' seemly .and practicable method of -1.
executi'on which is as painless as hanging or even more speedy, or
-
which, even though it may have no advantage over hanging in those
respects, is free from the degrading associations of that method. If
capital punishment were being introduced for the first time, the
Commission considered it unlikely tliat hanging would be chosen as
a method for executing ,the death sentence. The Commission,
F however, found that no useful propose would be served by making
experiments unless the necessity was urgent or the utility .evident.
And this applied with spedal force to a subject which was highly.
charged emotionally and was exceptionally controversial.
G . ~ ,.
In paragraph 709; the Commission refers to five methods of
execution of the_ death sentence which were then in vogue in the ·
different parts of the world. Electrocution was in v.ogue in 23
States of U.S.A.; Guillotine in France and Belgium; Hangiug in
England, Scotland, the Commonwealth countries and 10 States of •
H Ai'·
U.S.A.; and lethal gas in 8 States of U.S.A. Shooting was in vogue
in the State of Utah in America which. allowed a choice between
hanging and shooting. · Besides, shooting was used in almost every
bllBNA v. UNION .(Chandrachud, C.J.) i9
)
,/ - country as a method of execution of persons sentenced to death fo}'.
·I
· offences against the Military Code. A
Rejecting Guillotine and sho~ting as methods for executing
the death sentence for the reason thal the former produces mutilation
and the latter is inefficient, uncertairt and unacceptable as a standard
method of civil executions, the Com-mission examined the mechanics 8
of hanging in paragraphs 711to716.ofits Report. Paragraph .714,
which is relevant for our purpose, shows that· a valuable memo•
randum was submitted to the Commis$ion by t)le Coroner for the
Northeru District of London, at whose_ instance many post-mortem
examinations following upon hanging were made by the late Sir
Bernard Spilsbury, a distinguished_ man of medicine who had figured_ c
as a witness in many in,portan·t trials, and other liigbly _qualified
patholozists. The Coroner, Mr Bentley Purchase, bad access to the
records-of such post-morkm_examinations. The memorandum showed
that-the effective cause of death in 58 executions at two prisons was
"fracture dislocation of cervical vertebrae with laceration or D
crushing of the cord" and that any such dislocation causes immediate
unconsciousness, there being no -chance of later recovery of
consciousness since breathing is ho longer possible. The _beating of
the heart thereafter for any time upto 20 minutes is a purely
automatic function. In the words of the Corner : "I have no doubt
of1the efficac-\' and immediate _and 'painless fina,lity of the present
method of judicial execution".
After examining the mechanics of the methods of electrocution
and lethal gas in paragraphs 717-to 722, the Commission considers
the question as to whether electrocution or lethal gas was preferable F
to hanging on ~onsiderations of"humanity, cert"ainty and decency",
The Commission observes in paragraph 7l4 that the requirements
· of humanity arnessentially two : (!) that the preJiminaries to the acts
of execution should be as quick and as simple as possible, and free
from anything that unnecessarily sharpens the poignancy of the pri- G
soner's apprehension, and (2) that the act of execution should produce
immediate unconsciourness passing"quickly in into death. Paragraph
725 contains a comparative table showing the len_gth of time taken by·
the preliminaries in electrocution, lethal gas and hanging. On the basis
of that comparative analysis, the Commission records its conclusion
H
in paragraph 726 that, there was 'no room for doubt' that in the
matter of time taken by the preliminaries, hanging was superior to
.
4& t19s41 i s.c.R.
•
· either electrocution or lethal gas. In all the· three methods the
A prisoner had to be restrained in some way or the-other prior to the
execution but, in electrocution the execution is preceded by shaving
_and hand_cuffing while, in lethal gas the prisoner has to he stripped
of his clothes, except a pair of shorts, in order that pockets of gas
- may not persist in the clothes. In adaition, a stethoscope head_ has
B to be strapped to the chest under the lethal gas method.
On the question of "certainty", the Commission observes in
paragraph 729 of its Report that the equipment required for hangini:
is· simpler than _that which is required for electrocution. or execution
by lethal gas. The lethal chamber is a complicated piece of -
c mechanism while the electric chair depends for its efficacy upon the
supply of electricity which is usually taken from commercial sources.
In fact, in the_ United. States, executions by electrocutions were
occasionally delayed by failure of the power. The Commission·
recorded its conclusion by saying that·neither electrocution nor"Jethal
chamber had any advantage over hanging, in so far as the
.D requirement of "certainty" is concerned.
In paragraph 732, the Commission deals with the third aspect,
namely, "Decency" in execution of the death sentence. _It says that
while considering this aspect it had kept two things in mind: Firstly, ---'<, ,
E the obligation which obviously rests on every civilised State to
conduct its judicial executions with decorum, and, secondly, that
judicial execution should be performed without brutality, that it
should avoid gross physical violence and should not mutilate or dis-
tort the body. The Commission records its conclusion by s'aying
that in so far as the requirement of decency is concerned, _the other
F two methods have an advantage ·over hanging though, al) the three
methods were now .used with all the decency possible in the
circumstances.
The Commission records its final conclusion in paragraph 734
G of the Report by saying that after weighing all the factors carefully
and bearing in mind·that the onus of proof was on the advocates of
change, it could not recommend that either electrocution or gas
chamber should replace ·hanging as a method of judicial execution :
-In the matter _of humanity and certainty, the -advantage lay wi~h
H tl\e system of hanging; in regard to ode aspect of the requirement
of decency the other two methods were preferable. But, according
to the Commission, that advantage could not be regarded as enough
to turn the scale. -
bEENA v. UNION (ChandrachuJ, C.J.) 41
The counter-affidavit filed on behalf of the Government of
India by Shri P.S. Anauthanarayanan, Under Secretary, Ministry of A
Home Affairs, shows that the Director General of Health Services,
who -is the highest adviser to the Government of India in these and
allied matters, was consulted on the question whether the system of
hanging which is prevalent in India for executing the death sentence
should be changed. The D.G.H.S. advised as follows :-
B
"Subject :- Mode of ~nding the life of a convict
sentenced to death.
Continuation this Directorate u.o. No. 3!·204/55-
MI, dated the 10th April, 1956, on the above subject.' c
This Directorate has .consulted the . Administrative
Medical Officers, Chemical examiners, other criminologists
and experts, etc., on the subject and the views expressed
by them fall into the "followiug groups :-
D
(I) Those who consider the present method of hanging
being the best ... Number 15
,_ (2) Those favouring Electrocution .•. Number 17
E '
(3) Those favouring Medication, etc. ... Number 3
Even though electrocution has been advo'cated as a
desirable method by a considerable number of those
consulted, it is not a method without its drawbacks in
that death is stated in this case not to be . always instan· F
taneous or even painless and that this method involves
the setting up of a cllnsiderable mechanical outfit. From
the replies received from various sources; we also find
that those who can speak with the authority of experience
and knowledge have spoken with conviction regarding G
judicial hanging, properly carried out, as being the quic·
kest and least painful method. This is also the view of
the Serologist and Chemical Examiner .to the Government
of India, Calcutta and the majority view of the Central
Medico-Legal Advisory Committee. We are inclined to • H
agree with' this view and do not recommend any change
in the present method of execution by judicial banging in
the present state of scientifi~ knowledge.'·'
,.
SUPREME COURT-REPORTS (1984) i s.c.R.
Paragraph 16 of the counter-affidavit says that the D.G.H.S. held to
A the same view as recently as in February 1982.
The 35th Report of the Law Commission of India on Capital
Punishment, dated September 30, 1967 deals with "Execution of
Sentences" in Chapter XV. The Commission observes in paragraph·
B 1097 of the Report that though hanging continued to be the most
prevalent method for e~ecutlng the death sentence, the course of
events showed that it was being slowly abandoned. Thus, while in
1930, 17 States in U.S.A. used to employ that method, only 6
retained itin 1967. Again, while it was in force in Yugoslavia
before 1950, it was replaced by the firing squad in that year.
c
In paragraph 1098, the Law Commission deals briefly with the
Report ,of ,the Royal Commission of England while in paragraph
1099, it discusses the Report <'f the Canadian Committee on the
... D
same subject. It would appear from what the Law Commission· bas
stated in this paragraph that the Canadian Committee considered
•
four different l'.!letbods of execution, namely, hanging, electrocution,
gas-chamber and lethal injection. The last mentioned method was
believed to ensure instantaneous and painless death, ·but it could
only be accomplished by an intravenous injection requiring .skill and
the Canadian Committee•considered that it would not be reasonable
E to expect"a medical doctor to perform a task so re,pugnant to the
traditions of the medical profession: Moreover, an intravenous
could not be administered unless the condemned person was entirely
acquiescent., The Canadian Committee appears to have noted that
hangings in Canada were not conducted with the same degree of
F pr;cision as in U.K., as a result of which it was difficult ·to know
how the death was caused and whether the loss of consciousness
had supervened instantane~msly. Holding on the basis of the evidence
before it that hanging was regarded generally as an obsolete, if not
a oarbarous ;,ethod, the Commjttee recomme_nded that hanging
should be'replaced by electrocution.
G
In paragraphs 1101 to 1148 (pages 339 to 345), the Law
Commission of India extracts the views which were expressed before·
it as to the ideal method for executing tbe death sentence. Noting
in paragraph 1149 that there was a considerable body of opinion
which would like hanging to be replaced by something ''more
I human, and more painless", the Commission says in paragraph 1150
that to a certain extent the matter was one of medical opinion. · The
DEENA v. uNION (Chandrachud, c.i.) 43
general view expressed before the -Commission was that a method _
which is certain, humane quick and decent should be adopted Jor A
ex,ecuting the death sentence. The society _owed it to itself that the
agony at the exact point of execution should be kept to the minimum.
0
-· But the Commission felt that it was difficult to express any positive
opinion as to which of the three.methods-hanging, electrocution and·
- - gas-chamber-satisfied these tests most; particularly when electrocution _
B
,,. and gas-chamber were untried in India. In paragraph JISI, the
Commission records its conclusion by saying_: •
"We do not therefore recommend a change in the law
on this point."
c
In other words, the recommendation -of the Commission was that
death sentence should .be executed by ·the method of hanging
prescribed in_ section 354(5) of the Criminal Procedure. Code, since
there w<se no circumstances justifying its substitution by any 0ther
method and since, no other method was shown ·to be more D
v _ · satisfactory.
In Fel\ruary 1978, Dr. Hira Singh, Prison Adviser to the
Naiional_Institute of Social Defence, submitted his opm1on to the
Ministry of Home .Affairs, Qovcrnment of India, as follows :
E
"In ancient days the execution of death senience was
often attended by cruel forms of torture and -suffering
inflicted on the offender. With the passage of time,
howe_ver, the methods of execution have undergone
-various changes. The old practices such as beheading,
- ~ dr~wing, stoning, impaling, precipitation ~rom a height,
etc.; have been gradually replaced in· all civilised conn·
tries by new methods of· hanging, electrocution, gas
chamber and shooting.· These changes have. occured
mainly on the premise that death penalty means simply
G
the deprivation of life-and as such should be made as
quicker and less painful as possible. · The old methods
were considered inhuman.
· According to ,_the study on_ Capital Punishment
H
published by the United Nations in 1962, hanging remains
the most frequent method of execution in various conn·
. ·~ '
SUPREME COURT REI'ORTs [i984J i S.C.R.
A
tries including. the United Kingdom and generally ,\
throughout the Commonwealth. In the United States
it is no doubt losing ground in favour of electrocution
and lethal gas. The modern method of hanging differs
from its traditional form as it. involves an abrupt and
immediate severance of the cervical vertebrae. The whole
B process is carried out with· care and skill so as to avoid·
any bungling and untoward incident. The State Jail
·y
' Manuals contain eleborate instructions on the arrange·
mcnt · for. execution, inspection of gallows, testing of
equipment and the manner of execution." /
c The Prison Adviser thereafter sets out. guidelines contained in the
Model Prison Manual which have to be followed while executing
the death sentence by the method of hanging. In paragraph 3 of his
opinion he says that the chances of a mishap in the electrocution
process cannot be eliminated altogether and that in the United States,
D there have been occasions when the current failed to· reach the chair
when the switch was engageJ. After describing the procedur~
·which is adopted in the methods of electrocution, gas chamber and
shooting, he says that there are cases on record where execution·s by .
shooting were bungled by nervous firing squads. Dr. Hira Singh
concludes:
E'
"The question of introducing electric chair in place
of hanging as a mode of execution may be examined from
the administrative as well as •humanitarian view-points.
It is often argued that death by hanging takes lesser time .
.F to execute tban the other modes, though it may not be
invariably true. In any case electric chair has in no way
proved to be mo~e efficient in reducing pain or suffering
inflicted on the offender. In hanging the body is liable to
be disfigured but in electrocution also the leg is some-
times slightly burnt. Above all electrocution involves
G much costlier equipment and operational preciseness than
hanging. In view cif such considerations there seems to be
no particular. advantage in switching over to the electric
chair in the execution of death sentence even if such a
system may outwardly look to be more sophisticated."
H
,:rhe opinion of the Prison Adviser is at Annexure V to the
counter-affidavit of Shri P.S. Ananthanarayanan.
DEENA v. UNION (Chandrachud; C.J.) 45
We had allowed one Dr. Chandrakant of the All India Institute
of Medical Sciences, New Delhi, (o intervene in these proceedings. A
' We may, with some -advantage, refer to his written submissions.
·'
Dr. Chandrakant did his M.B.B.S. in 1970 and was in the Army
Medical Corps for a period of five years. He holds a Diploma in
Oto·rhino-Laryngology and the degree of M.D. in Forensic Medicine
\
- and Toxicology. It appears that he has also done a three-year
degree course of LL.B. from the Allahabad University. He is
B
presently working as a Lecturer in the Department of Fprensic
Medicine of the Institute, .in which capacity he is required to
conduct Medico-legal autopsies. He claims that he has conducted
approximately llOO medico-legal autopsies uptil now. According to
• him, hanging is the best method for executing the death sentence c
since by that method,. death ensues instantaneouly due to a com-
bination of shock, asphyxia and crushing .of Spinal Medulla. He says
that there are misconceived notions about judicial hanging due to
improvised and faulty mechanism of the process involved, in suicidal
hangings and due to Jack of knowledge of the anatomical structure
of the neck and human body, Dr. Chandrakant describes the human
D
anatomy and says that in hanging, whenever there is injury to
Medulla, to Pons or Medulla oblongata, all tbe three vital centres
called as "Tripod of life" are affected which causes instantaneous
death: Dr. Chandrakant has given a brief description of about 15
different methods which have been followed at one time or the other E
for ~xecuting the death sentence.
-
'
In a book called "Hanging through the ages (History of Capital
Punishment)" by George R. Scott (Torchstream Books, London), the
entire history of the technique of hanging has been traced. The
au.thor says at page 211 that the· introduction of an improved
F
technique of hanging has served to expedite the process of hanging,
giving less pain to the prisoner and that, "the long drop" and . other
improvements have achieved a great deal though, despite everything
that has been done, accidents are inevitable.
. '
G
In "Kenny's Outlines of Criminal Law," (19th Ed. 1966) edited
by J.W. Cecil Turner, it is stated at page 618; foot-note· 5 that :
"Hanging does not operate now through suffocat;on, but by a 'long
drop', inventented bl Prof. Haughton of Dublin; which dislocates
the vertebrae and is calculated to produce an instantaneous and
H
painless deati\,"
46 SUPREME, COURT REPORi'S (1984] I s C.R.
In "New HoriZons in Criminology'' by Harry Elmer Barnes
A. and Negley K. Teeters (3rd Ed. 1966), it is stated : "Society has
resorted to many difierent methods in executing criminal and other
, allegedly dangerous persons. Drpwrting, ·stoning to death, burning
at the state and beheading have all been used in the past. Of all.
the modern methods of administering the death penalty, banging bas
been the most widely used. We· read of hangings in -the earliest
B historic literatutre and throughout the world even today it is. still the
most widely used.,,
In a publication called 'Capital Punishment' under the auspices
of the United Nations, Department of Econon;iic and Social Affairs,
c New York, 1962, it is stated in paragraph 57 ·of _the chapter called
'The Execution' that in earlier times, ~great variety of methods of
' execution was known to the law, the carrying out of a sentence of
death being sometimes attended by 'cruel forms of turture intended
in certain cases to aggravate the suffering. The publication says :
D . ·'On grounds 'of humanity and of the respect due to' the human
persqn the modern law has in general dropped these practi.ces. The
death penalty means nowadays, simply the deprivation of life. The
differ:ences which today exist regarding' the method• of carrying out
·the death sentence are attributable to the •efforts made to render
E death quicker and less painful". The same paragraph mentions· that I
hanging has generally been abandoned in · the United States.
.Acco~ding to the issue of 'Time' magazine dated January, 24, 1983,
F
only four States of America still prestribe hanging as a method for
executing the death sentence. Paragraph 59 of U.N. publication
says that "Hanging remains the most frequent method ,in use". It
lists over 25 countries of the world in which the method of hanging
is used for executing the d~atb sentence.
-
'
In so far as the judicial exposition of this subject is .concerned,
attention inay be· drawn to the latest· decision_ of this Court in
Bachan Singh in which the majority said that under the successive
G Criminal Procedure Codes which have been iii force in India for
aboot IOO·ye~rs, the sentence of death is to be carried out by the
method of hanging. The fou-nding fathers of the Constitution, some
of 'whom were distinguished jurists (in 'the proper sense of that
term), cannot be assumed to be ignorant of the provision contained·
in section 354(5) of the Code. And, ~espite the fact that. the death
~entence bas to T?e carried out by the mode prescribed in that
DEENA v. UNION J_Chandrachud, C.J.) 47
section, they recognised the existence and validity of that sentence.
The majority accepted the proposition that by reason of the pro- A
vision contained in Article 21; no person can be deprived of his life
· or personal liberty except in-accordance with fair, just and reason-
able procedure established_ by law. Applying that postulate, it
observed that the framers of the Constitution did not consider that
either the death sentence or the traditional mode of its execution
prescribed by section 3S4(5) of the Code was a degrading punish-
ment which would defile the dignity of. the individual within the
contemplation of the Constitution. These observations are signi-
ficant with the caveat that the question as regards the validity . of
sectio~ 354(5) of the Code was not directly in ·issue in Bachan Singh.
c
This then is the data on which reliance is or can be placed by
the Union ofhdia for discharging the burden which rests upon it
for proving that the method of hanging prescribed by section 354(5)
of the Code does not violate the guarantee contained in Article 21
of the Constitution, D
Though it must be conceded that the various learned counsel
for the petitioners led.by S~ri R.K. Garg and Dr. N.M. Ghatate have
argued ther respective cases with great fervour, industry and tenacity,
the writ petitions furnish no data. or reasons whatsoever as to why ·
E
the method of the hanging is violative of Article 21. Mostly, the
prayer clauses of petitions simply contain a request that the. system
of hanging should be declared to be violative of Articles 14, 19 and 21
of the Constitution. Articles 14 and 19 were hardly even mentioned·
,. in the arguments on the main point and, rightly so. The arguments
advanced in regard to the violation of Article 21 went far beyond F
the scope of the averments in the writ petitions but that is not
--- "'' unprecedented in this Court. Moreover~ in a matter involving the
question of life and death, technicalities cannot be allowed to defeat
., justjce. We could have asked the petitioners ~o - amend their
petitions but rather than doing so, we decided to bear a full-dressed
argument on the validity of section 354(5) of the Code, regardless of G
the paucity of pleadings, especially since the writ petitions do not
involve any challenge under Article 14 of the Constittuion. We have
. beard the petitioners' counsel at length on every conceivable aspect
of the question involved in these petitions. We have proceeded to
H
this judgment, on a careful consideration of the diverse submissions
m11de befqre us,
48 SUPREME COURT REPORTS (1984) I S.C.R.
\
Dr. Ghatate, who began the arguments on behalf of the
A· petitioners, contended that the method of hanging involves pain,
degradation and suffering wherefor that method ~iolates Article
21 and cannot be used ,for executing the death sentence.
In support of this argument, he drew our attention to certain
passages in the dissenting judgment of Bhagwati, J,, in Bachan Singh.
B At ·pa$e 285 of the Report, the learned Judge has extracted a
passage from a decision of the California Supreme Court in. which
it is said that, "Penologists and medical experts agree that the
process of carrying. out a verdict of death is often so. degrading and
brutalizing to the h_!lman spirit as to. constitute psychological
torture", In the absence of citation, we are unable to trace the
c decision or to see the context in which the California Supreme Court
made the particular observation. Vfe do not know who these
".Penologists and medical experts" are and where they have expres-
sed agreed opinions attributed to them. It is not even clear whether
the California Court was dealing wi~h the validity of death p~nalty
or with the methods of executing that penalfy and, if the latter,
D
whether it h.as condemned every method of the execution and not
the method of hanging only. The purport of the passage seems to
indicate that the questioh under inquiry was that death sentence is
a 'cruel unusual punishment', As we. have shown, the expert
evidence before the Royal Commission of U.K. was quite to the
E contrary, especially in regard to the ·improved technique of hanging
which.came into operation after the recommendations of the Com-
mittee appointed in 1886 were implemented.
Ai page 287 of the Report Bhagwati, J., has made certain
F observations which also Dr, Ghatate Iias pressed into service. We
have already extracted those observations while dealing with the
preliminary objection of· the _learned Solicitor General. The sum
and substance of the particlur passage is that "hanging is undobtedly
accompanied by intense physical torture and pain", In support of
G this conclusion, the learned Judge quotes Warden Duffy of San
Quentin, a high security prison in U.S.A., who had described with
particularity the procedure which obtains at the hangings of prisoners,
After extracting· a statement of Warden Duffy at page 288, the
learned Judge says: "If the drop is too short, there will be a slow.
and agonising death by strangulation. On the other hand, if the drop
H is too lo'ng, the head will be torn off. In ,England centuries of prac-
tice have produced a detailed chart relating a man's weight and physi-
cal condition to the proper length of drop,, but even there mistakes
'
DEENA v. UNION (Chandrachud, C.J.) 49 1
have been made." Our difficulty again is the absence of citation of
the descriptive hassage which appears ·at page 288 of the Report. A
We do not know where, and in which year, Warden Duffy gave the
particular description of the hanging process. The process described
by him is apparently similar to the one which is now regarded as
outmoded and is no longe> in use.· Besides, Warden Duffy was a
stern opponent of the capital punishment. In a series of articles
.. ~
under the caption "San Quentin is my Home" which appeared in the
B
Saturday Evening Post, March 25 - May 13, 1950, he denounced the
capital sentence by· pointing oui, inter alia, how every known
method of executing that sentence is fraught with pain and suffering.
We will have occasion to call attention to what he has to say about
the Gas Chamber too. But evidence before us 'hows that the c
mechanics of the method of hanging has undergone significant
improvement over the years and if the expression is not inapt in
the context, hanging has been almost perfected into a science. The
-l
chances of a mishap are minimal now though, the chances of an
accident can never be elimi_nated totally, If that could be done, the
D
word "accident" will not appear in the dictionary of wise men. In
regard to th·' improvements effected in the method of hanging, we
will only draw attention to the findings of the Royal Commission
and the opinion expressed by other experts to which we have already
referred.
E
Finally, Dr. Ghatate relies upon an account given in 1927 by
a Surgeon who witnessed a double execution, which has been extract•
~d in the judgment of Bhagwati, J., at page 288 of the Report. It
appears from. the Surgeon's account that 'one of the supposed
corpses' gave a gasp which the Surgeon was, very naturally, horrified F
to bear. Two bodies not completely dead were then raised to the
scaffold again. In his account the Surgeon has ·stated that though
\ dislocation of.the neck is the ideal aimed at ill hanging, that bad
proved rather an exception in his own post-mortem findings which
, showed that in the majority of instances, the cause of death was
·strangulation and asphyxia. Relying on this account Bhagwati, l, G
conclude1 : "These passages clearly establish beyond doubt that the
execution of sentence of death by hanging does involve intense
physical pain and suffering, tnough it may be regarded by some as
more humane than electrocution or application of lethal gas." With
great respect, our difficulty is the same as in regard to the two earlier H
passages extracted by the learned Judge, one from the California
Supreme Co.urt jud~ment and the other frol,ll Warden Duffy. W~
50 SUPREME COURT REPORTS (1984] I s.c.R.
do not know who the Surgon is' and from where the quotation is
extracted. Besides, as we have ~.epeatedly said, there has been
)1 significant improvement in the mechanism of hanging. Old ex-
.periences are not to be discarded out of hand but they cannot te
applied to new situations without a critical examination of their
. relevance to th·ose situations. Otherwise, technical sciences, parti-
8 . cular the medical science, shall .have made their .remarkable advance
.in vain. ···~
We have given our anious and respectful consideration to the
. passages extracted and the observations made by our learned Brother
. Bhagwati. The fact that these are cpntained in a majority judgment
c· . is no justification for ignoring them. In a ma tier as socially sensi-
. tive as this, it is improper to overlopk ·the opposing point of. view,
whether it is expressed in a minority judgment or elsewere.
Bhagwati, J., says in the last passage extracted by us from his
D judgment that the method of hanging is perhaps regarded by some
as more humane than electrocution or the application of lethal gas ...
.Dr. Ghatate has his own point of view. He contends that electro:
. cution is the quickest and the simplest method of executing the death
sentence, in whtch there is no scope for failure of the apparatus. He
has two alternative submissions to make : One, falling electrocution,
E administration of lethal injection should be adopted as a method for
·executing the death sentence and, two, failing lethal-injection, shoot-
. ing by a firing squad should be resorted t!J. We assume that the
learned counsel has obtained his client's instructions on the use of
..these alternative methods, particularly shooting.
F
Truly, we are not concerned to determine the merits and
demerits of these alternative methods ·of execution .which are can-
vassed by the learned counsel and some of which are in vogue in
some other parts bf the world. If the method° prescribed by section
354 (5) of the Code is violative of Article 21. the matter must rest
.G/. there because. as contended by Dr. Ghatate himself, the Court
cannot substitute any other method of execution for the method
prescribed by law and which alone is permissible under the law.
However, an understanding of the process involved in the competing
methods used for executing the death sentence and their comparative
H assessment is not altogether pointless. If it can be demonstrated
clearly that some other method bas a real and definite · advantage
over the method of hanging, the question will naturally arise as to
why the State dqes not adopt that 1Uethod. An· arbitarary rejectio11'
t
DEENA v. UNION (Chandrachud, C.J.) 51
.) of a method proved to be simpler, quicker and more humane· than
. .t hanging may not answer the constitutional prercription . A
The ,Royal Commission• mentions in paragraph 717 of its
Report that during their visit to America, they inspected the electric
chairs in the Sing Sing Prison, New York and the District of
Columbia Jail, Washington, and that they received evidence about
> •
the use of the electric ·chair in other States. The Commission has
B
given the following account of the method of electrocution based
primarily on the information obtained by them iri Washington :
"The execution takes place at 10 a.m. At midninght
on the preceding l\ightthe condemned man is taken from c
the condemned cell block to a cell adjoining the electro-
cution chamber. About 5.30 a.ni., the top of his head
and the calf of one leg are shaved to afford direct contact •
with the electrodes. (The prisoner is usually handcuffed
during this operation to prevent him from seizing the
razor.) At 7.1 S a.m., the death warrant-is read to him and D
about 10 O'clock he is taken to the electrocution
chamber......... Three officers ·strap the condemned
man to the chair, tying him. around the waist, legs
and wrists. A mask is placed over his face and
the electrodes are attached to his head and legs. As E
soon as this operation is completed (about two minutes
-·
. "
after he has left the cell,) the singal is given and the
switch is pulled by the electrician; the current is left on
· for two minajes, during which there is alternation of two
or more different voltages. When it is switched off, the
body slumps forw'!rd in the chair. The prisoner does not P.
make any sound when the current is turned on, and
unconsciousness is apparently instantaneous. He is not,
however, pronounced dead for some minutes at'ter th~
c1ment is disconnected. The leg is sometimes slightly
burned, but the body is uot otherwise marked or G
mutilated.''
In paragraph 718, the Commission says :
• ''No case of mishap was recoraed in Washington, R -
but it seems that in some other States there have been
occasions when the current failed. to reach the chair when
\he switch was en&aged. Some St.ates install an emergency
52 SUPREME COURT REPORTS (1984) 1 s.c.it.
generator in order t~at an executi0n may not be delayed
by. failure of the commercial."
Lest it be thought that the Report · of the Royal Commission,
having been given 30 years back, the dekription .of the process of
electrocution contained therein may not apply to the modern
conditions, we may draw attention to the cover story on the death '
B penalty which appeanend in the issue of 'Time' magazine, dated J~n.
24, 1983. The v.:rite-up. which is predominantly in favour of
abolition of the death sentence, contains a vivid description of the
methods of electrocution, gas chamber and lethal injection which arc
used in some of the States in America. The cover story, "An Eye
c for an eye", gives the fol) owing description of electrocution at page
12 of the issue:
"The chair is bolted to the floor near the back of a
12 ft. by 18ft. room. You sit on a seat of cracked rubber
secured by rows of copper tacks. Your ankles are
D strapped into half-moon-shaped foot cuffs lined with can-
vas. A 2-ln-wide greasy leather belt with 28 buckle holes
and worn· grooves where it has been pulled very tight
many times is secured·around your waist just above the
hips. A cool metal cone encircles your ·head. You are ,
now only moments away from death.
E
But you still have a few seconds left. Time becomes
stretched to tlle outermost limits. To your right you see
the mahogany floor divider that separates four brown
church-type pews from the rest of the room. They look
odd in this beige Zen-like chamber.. There is another
F . door at the back through which the witnesses arrive and
sit In the pews. You stare up at two groups of fluores-
cont lights on the ceiling. They are on. The paint on the
ceiling I~ peeling. '!"
G· . You fit in neat and snug. Behind the chair's back
leg on your right is a cable wrapped in gray tape.. It
will sluice the electrical current to three other wires :
two going to each of your feet, and the third to the cone •
H on top of your head. The room ~is very quiet. During
yonr brief walk here, you looked over shoulder and saw
early morning light creeping over the Berkshire Hj!J~.
TJ:ien into this silent t<,>mb.
bEENA v. UNION (Chandrachud, C.J.) 53
! The air vent above your head in the ceiling begins to
\
hum. This means the executioner has turned on the fan A
to suck up the smell of burning flesh. There is ·little time
left. On your right you can see the waist-high, one-way
mirror in the wall. Behind the mirror is ·t)le executioner,
standing before a gray marble control pannel with gauges,
switches and a foot-long lever of wood and metal at hip
le\lel. B·
The executioner will pull this lever four times.
Each time 2,000 volts ·will course through your body,
making your eyeballs first bulge, then burst, and than
broiling your brains ... "
c
• Electrocution was first introduced in the New York State prison at
Auburn on August 6, 1890. The initial victim was one William
Kemmler whose challenge to the validity of the method of electro- D
. cution as a cruel and unusual punishment was rejected by the U.S.
Supreme Court.( 1) Though this method is now advocated as a
humanitarian move, in reality, its original introduction appears to
have been the result of. the effort of an electrical company to market
its products.(').
E
- Though it is generally believed that death by electrocution is
entirely painless, a distinguished French scientist, L.G.V. Rota, dis-
putes this contention. Labelling this method of executing the
death sentence as a form of torture, Rota contends that a condemned
victim may be alive for several minutes after the current has passed
through h\s body without a physician being certain· whether death
has actually occurred or not. He adds taat some persons have
greater physiological resistance to the electric current than others,
and that, no matter how weak the person, death cannot supervene
instantly. Another attack on the pain of' death in electrocution was· G
made by Nicola. Tesla, the electricai wizard.(') The opposite view is
(I) 136 U.S. 436.
(2) So stated by Nicola Tesla in the New York World, November, 17, H
1929.
(3) See "New Horizons in Criminology'', by Harry Barnes & Negley.
Teeters (3rd Ed. 1966, pp. 308-309).
SUPREME COURT REPORTs [i984J i s.c.R.,
expressed by Robert G. Elliott in 'Agent of Death' (New York : '~·
A, Duttqn, · 1940), Rebert Elliott; one-time executioner for several ,/
~eastern States, who officiated at 387 executions maintains that
electrocution is painless. ..,..
\
Power seldom fails in countries like. America, U.S.S.R., and
Japan. Even then, the failure of electrical energey supplied by .I
B
commercial undertakings has been considered in America as an
impediment in the use of the electric chair. With frequent failures •
,..
of electrical' power in our country, the· electric chair will become
an·instrument of torture. One·can well imagine the consequences of .
. the use of the electric chair in )he city of Cal cu ta or, for the matter
c of that, in the capital City of Delhi. For technical reasons, even
the Supreme Court complex is not spared from frequent load-shedding
during working hours. Lawyers, litigants and Judges have now
trained themselves to suffer the inconvenience arising from failure
of electricity. But, it would be most unfair to expect a prisoner
condemned to death to get into the electric chair twice or thrice, . for
D ·the reason that the electric current failed during the process of
electrocution. It is, not our intention to blame anyone for the -
power crisis becaµse it would seem thatit is partly due to natural
causes and is not man-made. But facts are facts and facts must he
faced.
E
·-
Execution by lethal gas is discussed by the Royal Commission
in paragraphs 719 to 722 of its Report. The Commission says in
paragraph 719 that they did not inspect any lethal gas chamber
during their visit to America, but they were .supplied with written
evidence about execution by lethal gas. They also bad the advantage\
of hearing .evidence from one Mr. Philip Allen, th,e then Deputy
Chairman of the Prison Commission and of receiving a report from
the English' Neurologist, Dr. Macdonald Critchley, both of whom had
inspected the lethal chamber at St. Quentin Prison, California, of
which the famous Clinton Duffy was a · warden. In paragraph 720
G ·of the Report, the Royal Commission says : "The lethal chamber
is very elaborate in:comparison with the apparatus needed for other
methods of execution. It is expensive to install and requires a
complicated series of operations to produce the gas and to dispose
of it afterwards". The description of't.he gas-chamber method given •
'H by ·the Royal Commission is like this :
The 'chamber is reqnired to be hermetically sealed to .
prevent leakage of cyanide gas, the doors leading to the ·
hEENA v. UNION (Chandrachud, CJ.) 55
chamber are required to be connected with an electrically
controlled panel, the prisoner's arms, legs and abdomen A
are tied to the chair with leather ·straps, a 'pound of
sodium cyanide pellets is placed in a trap in the seat of
the chair and three pints of sulphuric acid and six pints of
water mixed in a lead. container are placed 'in a position
\
.. to receive the cyanide pellets. A rubber hose is connected
to the head of a stethoscope which is strapped to the
prisoner's chest. The entire clothing of the prisoner is
B
removed except for shorts. Finally, a leather mask
covers the prisoner's face. After the prisioner is pronoun·
ced dead, Amonia gas is forced into the chamber untill
the indicators within the chamber sho~ that all cyanide c
gas has been neutralised. The Amonia gas is then removed
by a specially constructed exhaust fan.
paragraph 721 of the Royal Commission's Report shows that the
length of time taken by this method of execution is about · 45
D
minutes .. In paragraph 722 the Commission says that \vhen this
method was first employed, it was thought that the ·gas had a suffo·
eating effect which would cause acute distress, if not actual pain,
before the prisoner became unconscious. Ac9ording to the Commis·
sion, it seems to be now generally agreed that unconsciousness ensues
/
very rapidly in the gas chamber method.
-- Clinton Duffy, warden of San Quentin Prison,. California; says
that the operation of the gas chamber execution includes '"funnels,
rubber gloves, graduates, towels soap, pliers, scissors, fuses and a
mop : in , addition, sodium cyanide eggs, sulphuric acid, distilled li'
water, and amonia".(')
/
Coming to the method of shooting by a firing squad, we
have already extracted an opinion which shows that there are chances
of bungling in that method. But a more serious objection to wWch
G
this method is open is thaf it is the favourite· past-time of military
regimes which trample upon human rights with impunity. They
shoot their citizens for sport. Shooting' is an uncivilised method of
•
(1) From his series of articles, San, Quentin Is My Home'\ Saturday
Evening Fost, March 25-May 13, 1950. This series was later
p~blished in book ·rorm as The San Quentin Story (New York);
Doubleday, 1950.
56 SUPREME COURT REPoRTS fliJ84J l s.C.R.
extinguishing life and it is enough to say in order to reject in that ~--
the particular method is most recklessly and want only used for
liquidating opposition and smoth-ering dis.sent in countries which do
not respect the rule of law. Lastly, murders by shooting are becom-
ing a serious.menace to law and order in our country. Shooting by
the State in order to kill for executing the order of a Cou-rt of law
8 will unwittingly confer respectability on the 'shoot to kill, tactics
which ~re a_larmingly growing in proportion.
What remains now to consider is the system of lethal injection.
The Royal Commission· has discussed that method in paragraphs
735 to 749 of its Report. Lethal injection is by and large an untried
c method. But that is not its most serious defect. The injection is
'y
required to be administered intravenously, which is a delicate and
skilled operation. The Prison Medical Officers who were interviewed
by the Royal Commission doubted _whether the system of lethal
injection was more humane than hanging (See paragraph 739 of the
D Report). The Btitish ]'y[edical Association told the Commission _that
no medical practitioner should be asked to take part in bringing
a
about the death of convicted murderer and that the Association
would be most strongly opposed to any proposal to introduce ·a'
method of execution which would require the ser~ices of a medical
practitioner, ei!her in carrying out the actual process of killing or in - ~-
E instructing others in the technique of that process. The Commission
expressep its conclusion in paragraph 749 by saying that it could
not recommend that, in the present circumstances, lethal injection
should be substituted for hanging since they were not satisfied that
executions carried out by the administration of lethal injections
F would bring about death more quickly, l'ainlessly and decently in
all cases,. The Commission, however, recommended, unanimously
and emr hatica!ly, that the question should be periodically examined,
especially in the light of the progress made in the science of
anaesthetics.
G
We may lastly refer to the affidavit filed by o·ne Dr. N.P. Singh
who was allowed to intervene on behalf of the National Association
of Critical Care Medicine (India), New Delhi. ·He says in his affida·
vit that society has come to realise that death by hanging is not a
merciful and pleasant way of putting a patient to a terminal end :
H
"As members of the medical profession and the Association, we feel
that a patient may be put to sleep by any ' sleep inducing injection
(barbiturates) and subsequently, the above mentioned electrocution·
DEENA v. UNION (Chandrachud, C.J.) 57
and gas chamber methods may be applied as the 'patient's sense
would have been dulled by the drug injection". This system certainly A
has the merit of naivete and novelty but, on the face of it, the system
is impracticable and would appear to involve complications and
torture to an uncommon degree. We may in this behalf draw
attention to an article "The Death Penalty : Moral argument and
capricious par~tice" bi;,Andrew. Rutherford, a senior Lecturer ·in B
Law at the Southampton University, which appeared in . 'The
Listener' of July 7, 1983, published by~ the British Broadcasting
Corporation. In that article, the writer refers to an incident to tll.e
effect that in 1982 December, a prisoner was put to death in Texas
by means of an injection of sodium pentothpl. The incident led the
American Medical Association to declare : ''The use of a ·lethal injec- c
tion as a means of terminating the life of a' convict is not the
practice of medicine". The writer proceeds to say that there is not
likely to .be any great enthusiam for the method of electrocution as
well, since in April 1983, it took three 30-seconds shots of 1,900
volts before a man in Alabama was pronounced dead. D
It is clear from this narrative that neither electrocution, nor
lethal gas, nor shooting, nor even the·lethal injection bas any distinct
or demonstrable advantage over the system of hanging. Therefore,
it is impossible to record the conclusion with any degree of certainty
·E
that the method of hanging should be replaced by any of these •
methods.
But, for due compliance with the mandate of Article 21, it is
not enough (o find that none of the other methods of execution · has
a real advantage over the method of hanging. The other methods F
may have some of 'the vices of being impracticable, complicated,
slow and uncertain. That is only one side of the picture because,
the circumstance that the other methods are not feasible does not
establish of its own force that the method. of hanging is free from
blame. The weakness of defence cannot establish the plaintiff'> case.
In other words, though hanging• may not suffer in comparison with G
the other methods, what we must determine is whether, hanging as a
method of executing the death sentence, considered in isolation, that
is to say, without comparison with the other methods, offends against
the cannons of Article 21.
There is a responsible body of scientific and legal opm10n
which we have discussed, which holds the view that hanging by rope
. SUPROO COURT REPORTS (1984] l s.C,Jl .
·is not a cruel mode of executing the death sentence. That system is in
A operation in large parts of the civilised world. That was the only
method of executing the death sentence which was known to the
Constituent Assembly and yet it did not express any disapproval' of
that method, though it touched upon the question of death sentence
while dealing with the Pr.esident's power of pardon under Article
72 (I) (c) of the Constitution.
B
Having given our most anxious consideration to the central
point-of inquiry, we have come to the conclusion that, on the basis
'
of the material to which we have referred extensively, the State has ·
discharged the heavy burden which lies upon it to prove that the
c method of hanging prescribed ·by section 354(5) of the Code of
Criminal Procedure does not violate the guarantee contained in
Article 21 of the Constitution. The material before us shows that
the system of hanging which is now in vogue consists of a mechanism
which is easy to assemble. · The preliminaries to the act of hanging
D are quick and simple and they are free from anything that would
unnecessarily sharpen the poignancy of the prisoner's apprebension.
The chanc.es of an accident during the course of hanging can safely
be exc.luded. The method is a quick and certain means of executing
the extreme penalty of law. It eliminates the possibility of a lingering
death. Unconsciousness supervenes almost instantaneously after
E the process is set in motion and the death of the prisoner follows·
as a result of the dislocation of the cervical vertebrae. The system
of hanging, as no •v nsed, avoids to the full extent the chances of
strangulation which remits on account of too short a drop or of
decapitation which results on account of too long a drop. The
F system is consisient with the obligation of the State to ensure that
the process of executio1!' is conducted with decency and decorum
without involving degradation of brutality of any kind.
At the~moment of final impact when life becomes extinct, some
G physical pain Would be implicit in the very process of the ebbing out
of life. B.ut, the act of hanging causes the least pain imaginable
on account of the fact that death supervenes instantaneously.
'Imaginable', because in the very nature of things, there are no
survivors who can give first· hand e~idence. of the pain involved .in
the execution of a death sentence. Dead men tell no tales.. The
B question' as regards tile factor of pain has therefore to be judged on
the bais of scientific .investigations and by applying the test of
reason. Tho conclusion that the system· of· banging is as painless ~
DEENA v. UNION (Chandrachud, C.I.)
·as is possible in the circumstances, that it causes no greater pain
than any other known.method ·of executing the death sentence and A
that it involves no barbarity, torture or degradation is based on
reason, supported by expert evidence and "the ·findings of modern
medicine.
\. On the question of pain involved in a punishment, the concern B
of law _has to be to ensure that the various steps which ·are
attendant upon or incidental to the execution of any sentence, more
so the death sentence, do not constitiite punishments by themselves.
If a prisoner is sentenced to death, it is lawful to execute that punish-
ment and that only. Hecannot be subjected to humiliaiion, torture
or degradation before the execution of that sentence, not even as. c
necessary steps in the execution of that sentence. That would
' -
amount to inflicting a punishment on the prisoner which does n@t
have the authority of law. Humaneness is the hall-mark of civilised
laws. Therefore, torture, brutality, barbarity, humiliation and
·degradation of any kind is ·impermissible in the execution of any
D
sentence. Tb~ process of hanging does not any of these, directly,
indirectly or inciden~ally.
Accordingly, we hold that the method prescribed· by section
354(5) of the Code of Criminal Procedure for executing the death
sentence does not violate the provision contained in Article 21 of E
the Constitutign.
... There is one point which still remajns to be consider~d and
. that is the point made by· Shri R.K. Garg. He contends that it is
inhuman to kill under any circumstances, even under a judgment of F
a Court and, therefore, no death sentence can be executed · at all by
means fair or foul.· , The fact that the method prescribed by law for
executing the death sentence is humane makes. no difference for,
according to him, Article 21 imposes a total -prohibition on the
taking of human life, which would include the execution of death . G
sentence. · It is impossible t6 ·accept this co!'ltentfon. The argument,
in truth and substance, is aimed :rt.the validity of the death sentence
itself and, indeed, much of what Shri Garg said is directed at ,
showing the invalidity of section 302 of the' Penal Code rather than
the invalidity of section 354(5) of the Code of Criminal Procedure. H
We are unable to appreciate how it is unlawful, in the abstract and
in the absolute, to execute a lawful order. If it is lawful to impose
the sentence of death in appropriate cases, it would be lawful to
SUPREME cotrn.t REPORTS ii984J i s.c.tl.
~ .
execute that sentence in an appropriate manner. Article 21, undoub-
A tedly, has as much relevance on the passing of a sentence, as on the
· manner of ~xecuting it. Therefore, a two·fold consideration has to
be kept in min!! in the area of sentencing. Substantively; the sentence
has to meet the constitutional prescription contained, especially, in
Articles 14 and 21. Procedurally, the method by which the sentence
is required by law to be executed has to meet the mandate of
B Article 21. The mandate of Article ·21 is not that the death sen·
tence shall nbt be executed but that it shall not be executed in a
cruel, barbarous or degrading manner,
If we were to accept the argument of Shri Garg, the imposition
c of death sentence_would become an exercise in futility : pass the
sentence of death if you may but, it . .shall not be executed in any
manner, under any circumstances. A Constitution so carefully
conceived as ours cannot be construed to produce such a startling
result. Indeed, the argument, if carried to its logical conclusion will
D make it impossible to execute any sentence whatsoever, particularly
of imprisonment, because every sentence of imprisonment necessarily
involves pain and suffering to a lesser or greater degree. Painless
punishment is a contradiction in terms. ·
The constraints of Bachan Singh deserve to be preserved but - - '\
E that means that it is only a rare degree of malevolence which invites
and justifies the imposition of•death sentence. . Granting ihaJ the
.
sentence of death is constitutionally valid, not even
. the sophisticated
sensitivites can justly demand that those upon whom the extreme
F ·-
penalty of law is imposed because of the magnitude of their crime,
should not be made to suffer the execution \
of that sentence,
unaccompained by torture or degradation of any kind.. If the larger
interests of the community as opposed to the interests of an inividual
require that the death sentence should be imposed in an exceptional
class of cases, the same societal interests would justify the execution
of that sentence,.though.in strict conformity with the requirements
G of Article 21.
Though Article 21 was the focal point of this case, almost
everyone of the learned counsel appearing on behalf of the petitioners
drew inspiration from· the Eighth Amendment to the United States.
H Constitution: which provides that "Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and · unusual
punishments inflicted".
DEENA V. UNION (Chandrachud, C.J.) 61
The prohibition against cruel and unusual· punishment dates
back to the Magna Carta though it found recognition in the English A·
Law by its adoption in the English Declaration of Rights in 1688.
The purpose of this enactment was to check the barbarous puni_sh,
ments which were common during the regime of the Stuarts, like·
pillory, disemboweling, decapitation and drawing and quartering,
As a result of. the English reform movement which was started in the
\ B
seventeenth century by the Eurpean humanists, these punishments
gradually fell into disrepute. The fundamental principal underlying the
prohibition against cruel and unusual punishments was incorporated
-~ into the Bill of Rights in 17'91.
'
The early development ·of Jaw in America shows that the c
prohibition against cruel and unusual punishments concerned itself
with unusual· cruelty only, the emphasis being upon "unnecessary
· cruelty and pain''. In Kemmler, death by electrocution was held
not necessarily cruel. In O'Neil v. Vermont(') Justice Field, in his
dissenting opinion, enlarged the concept of unusual ·punishment to
D
cover penalities "which shock the sense of justice". In Trap v. Dulles(')
a sharply divi_ded Court held that divesture of citizenship was consti-
tutionally forbidden. Chief Justice Warren, speaking for three
Justices, observed _that the content of the Eighth Amendment was
) not static and that it "must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society". E
According to the learned Chief Justice, the Eighth Amendment whose
"basic concept is nothing less than the dignity of man", ensures
"the principle of civilized treatment". After the decision in .Trap,
the American Supreme Court has formulated a sophisticated defini,
tion of the Eighth Amendment ~lause in a series of important cases
called the "18 Key cases''. A resume of those cases caa be found F
in 'Substantive Criminal Law'' by Prof. M. Chenf Bassiouni (Ed.
1978, p,>. 44-45). It shows that even a second electrocution after
the failure of the first attempt, provided it is not an intentional
effort to inflict unnecessary suffering, was held not violative of the
Eighth Amendment (Louisiana v. Resweber(•). It was, observed in G
that case that :.
"the cruelty against which the ·constitution protects
a convicted man is cruelty inherent in• the method of
H
(I) [1892] 144 U.S. 323, 339-340.
(2) [1958] 356 U.S. 86, 101, 124-127,
(1) [1949] 329 {)".S. 45~.
62 SUPREME COURT REPORTS (1984) I S.C.R.
punishment, not the necessary suffering involved in any ··
A method employed to extinguish life humanely, No one
can deny that soi:ne suffering and anguish is bound to
result to the condemned man at the time of execution of
his death sentence. But it is not wholly inappropriate to
observe that having had the opportunity to avoid that
B suffering and anguish, he chose the path of risking it in
favour of earning some other benefit. His minimal
suffering is real, but so we believe was the suffering of
his victims and even so will be the suffering of the victims
of those other criminals who believe that they can commit
crimes of great atrocity with .relative impugnity".
c
It is this 'relative impunity' which attracts the rule in Bachan Singh.
Though the Eighth Amendm~nt has th~s a dynamic content
which has been evolved over the years as public moral perceptions
1) changed from time to time, several concurring opinion show
that in America, capital punishment is not' considered to be
violative of the Eighth Amendment('). In the words of Chief
Justice Earl Warren, "the death penalty has been employed
throughout our history, and, in a day which it is still widely
E accepted, it cannot be said to violate the constitutional concept
of cruelty", , What the Eiglith . Am1mdment prohibits is "some•
thing inhuman and barbaro\ls aii.a something more than the mere
extinguishmeht of life". The suffering necessarily involved in the
execution of death sentence is not banned by the Eighth Amendment
though the cruel form of execution is.
F
No sustenance can therefore be derived from the Eighth
Amendment to thellrgument that either ·the death sentence or the
method of executing that s~ntence by hanging is violative of Article
21 on the .ground. that· 'death sentence is barbarous or that the
G method of hanging is cruel, inhuman or degrading. Hanging as a
mode of execution is not relentless in its severity. As Judges we
ought not to assume that we are endowed with a divine insight into
the needs of a society. Or(the contrary, we should heed the warning
given by Justice Frankfurter : "As ·history amply proves, the judi-
H
,.. (1) :Death Penalties' ...!Jy Raoul -Berger (Aarvaid l!niversity Press, Ed.
1982, p. 112).
r
DEENA v. UNION (Sabyasachi Mukharji, J. 63
' ciary is prone to misconceive the public good by confounding private
{ notio.ns with constitutional requirements( 1)" • A
. For these r"easons the challenge to the constitutionality of
section 354(5) of the Code of Criminal Procedure fails and the writ
petitions are dismissed. Orders whereby the executions ·of death.
sentence were s.tayed are hereby vacated except in W,P. (Crl.) No. B
' .
_.,.
503 of 1983 which will b~ listed on 27th September, 1983, for being
heard on merits. SLP (Crl.) No. 196 of 1983 is dismissed.
SABYASABH! MUKHARJI, J. I respectfully agree with the
conclusions of my learned brother, the Chief Justice. I would like,·
however, to state that in the judgment, my learned brother haa c
observed:~
"Therefore, as soon as it is shown that the Act
invades a right guaranteed by Article 21, it is necessary
to enquire whether the ·state has proved that the person
has been deprived of his life or personal liberty . according
D
to procedure established by law, that is to say, a· by
procedure which is just, fair and reasonable."
I respectfully agree that as soon as it is shown th.at a Statute or
Act in question invades a right guaranteed by Article 21, it is E
necessary to enquire whether the State has proved that the person
has been deprived of his. life or personal liberty acco!dingto procedure
...
'
established by law. I, howe\·er, respectfully at present WO).lld not
express my opinion whether in all such cases, the State has a further
initial burden to prove that the procedure established by law· rs just,
fair and reas.onable. With this observation, I respectfully agree with
F
all the other conclusions and· observations made by my brother,
the learned Chief Justice:
H.L.C. Petitions dismissed.
.G
H
(I) [1949) 335 U.S. 538, 55~, Americll!l [fas~ & Door Co.'s case.
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