RAREST OF RARE CASE
PETITIONER:BACHAN SINGH ETC. ETC.
Vs.
RESPONDENT:STATE OF PUNJAB ETC. ETC.
DATE OF JUDGMENT16/08/1982
BENCH:BHAGWATI, P.N.
CHANDRACHUD, Y.V. ((CJ)
SARKARIA, RANJIT SINGH
GUPTA, A.C.
UNTWALIA, N.L.
CITATION:
1982 AIR 1325 1983 SCR (1) 145
1982 SCC (3) 24 1982 SCALE (1)713
CITATOR INFO :
E 1983 SC1155 (3,4,5,6,8,9,12,13,23,27,28,29
RF 1989 SC 653 (17)
E&D 1989 SC1335 (10)
R 1989 SC2299 (2,3)
RF 1991 SC 345 (6,11)
ACT:
(A) Death Penalty, whether constitutionally valid ?- Right to live, whether the provisions of section 302, Penal Code, offends Article 19 of the Constitution-Distinction between "Public order" and "Law and Order"-Whether section 302, Penal Code, violates Article 21, the basic structure of the Constitution and Article 6(1) of the International Covenant on Civil and Political Rights as adopted by the General Assembly of the United Nations and reiterated in the Stockholm Declaration.
(B) Code of Criminal Procedure, 1973, section 354(3)-If section 302, Penal Code, is constitutional, whether the sentencing procedure provided in section 354(3) of the Code of Criminal Procedure, 1973 (Act II of 1974) is unconstitutional on the ground that it invests with unguided and untrammelled discretion and allows death sentence to be arbitrarily or freakishly imposed on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code with death or, in the alternative with imprisonment for life.
(C) Powers of the Supreme Court to lay down standards or norms restricting the area of imposition of death penalty to a narrow category of murders.
HEADNOTE:
Upholding the constitutionality of section 302, Penal Code, and section 354 (3) of the Code of Criminal Procedure Code. the Court.
HELD: Per majority.
Sarkaria, J. [On behalf of Chandrachud, C.J., A.C. Gupta, N.L. Untwalia, JJ. and on his own behalf].
The right to life is not one of the rights mentioned in Article 19 (1) of the Constitution and the six fundamental freedoms guaranteed under Article 19(1) are not absolute rights. The condition precedent for the applicability of Article 19 is that the activity which the impugned law prohibits and penalises, must be within the purview of and protection of Article 19 (1). [173 E, 174 A, B-C] State of Bombay v. R.M.D. Chamarbaugwala, [1957] SCR 874 @ 920; Fatechand Himmatlal and Ors. v. State of Maharashtra, [1977] 2 SCR 828 @ 840; A.K. Gopalan v. The State of Madras, [1950] 1 SCR 88, followed.
2. The Indian Penal Code, particularly those of its provisions which cannot be justified on the ground of unreasonableness with reference to any of the specified heads, such as "public order" in clauses (2), (3) and (4) is not a law imposing restrictions on any of the rights conferred by Article 19 (1). There are several offences under the Penal Code, such as, theft, cheating, ordinary assault, which do not violate or affect "public order", but only "law and order". These offences injure only specific individuals as distinguished from the public at large. It is now settled that "public order" means"even tempo of the life of the community". That being so, even all murders do not disturb or affect "public order". Some murders may be of purely private significance and the injury or harm resulting therefrom affects only specific individuals, and, consequently, such murders may not be covered by "public order" within the contemplation of clauses (2), (3) and (4) of Article 19. Such murders do not lead to public disorder but to disorder simpliciter. Yet, no rational being can say that punishment of such murderers is not in the general public interest. It may be noted that general public interest is not specified as a head in clauses (2) to (4) on which restriction on the rights mentioned in clause (i) of the Article may be justified. [181 D-H, 182 A-B]
The real distinction between the areas of "law and order" and "public order" lies not merely in the nature or quality of the act, but in the degree and extent. Violent crimes similar in nature, but committed in different contexts and circumstances might cause different reactions. A murder committed in given circumstances may cause only a slight tremor, the wave length of which does not extend beyond the parameters of law and order. Another murder committed in different context and circumstances may unleash a tidal wave of such intensity, gravity and magnitude, that its impact throws out of gear the even flow of life. Nonetheless, the fact remains that for such murders which do not affect "public order", even the provision for life imprisonment in section 302, Indian Penal Code, as an alternative punishment, would not be justifiable under clauses (2), (3) and (4) as a reasonable restriction in the interest of "public order". Such a construction must, therefore, be avoided. Thus construed, Article 19 will be attracted only to such laws, the provisions of which are capable of being tested under clauses (2) to (5) of Article 19. [182 B-E] R.S. Cooper v. Union of India, [1970] 3 SCR 530; Maneka Gandhi v. Union of India, [1978] 2 SCR 621; Dr. Ram Manohar Lohia's case, [1966]1 SCR 709; Hardhan Saha and Anr. v. State of West Bengal, [1975] 1 SCR 778@ 784, followed.
3. From the decided cases of the Supreme Court, it is clear that the test of direct and indirect effect was not scrapped. Indeed there is no dispute that the test of "pith and substance" of the subject-matter and of direct and of incidental effect of legislation is a very useful test to determine the question of legislative competence, i.e., in ascertaining whether an Act falls under one Entry while incidentally encroaching upon another Entry. Even for determining the validity of a legislation on the ground of infringement of fundamental rights, the subject matter and the object of the legislation are not altogether irrelevant. For instance, if the subject matter of the legislation directly covers any of the fundamental freedoms mentioned in Article 19 (1). It must pass the test of reasonableness under the relevant head in clauses (2) to (6) of that Article. If the legislation does not directly deal with any of the rights in Article 19 (1), that may not conclude the enquiry. It will have to be ascertained further whether by its direct and immediate operation, the impugned legislation abridges any of the rights enumerated in Article 19 (1). [189 B-D]
The mere fact that the impugned law incidentally, remotely or collaterally has the effect of abridging or abrogating those rights, will not satisfy the test. If the answer to the above queries be in the affirmative, the impugned law in order to be valid must pass the test of reasonableness under Article 19. But if the impact of the law on any of the rights under clause (1) of Article 19 is merely incidental, indirect, remote or collateral and is dependent upon factors which may or may not come into play, the anvil of Article 19 will not be available for judging its validity. [190 A-C]
R.C. Cooper v. Union of India, [1970] 3 SCR 530; Maneka Gandhi v. Union of India, [1978] 2 SCR 621; Subrahmanyam Chattiar's case, [1940] FCR 188; Ram Singh v. State of Delhi, [1951] SCR 451; Express Newspapers (P) Ltd. and Anr v. The Union of India & Ors., [1959] SCR 12; Minnesota Ex. Rel. Olson, [1930] 283 U.S. 697 @ 698; Sakal Papers (P) Ltd. and Ors. v. The Union of India, [1962] 3 SCR 842; Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr., [1966] 3 SCR 744; Bennett Coleman's case, AIR 1973 SC 106, referred to.
4. Section 299 defines "culpable homicide" and section 300 defines culpable homicide amounting to murder. Section 302 prescribes death or imprisonment for life as penalty for murder. It cannot, reasonably or rationally, be contended that any of the rights mentioned in Article 19 (1) of the Constitution confers the freedom to commit murder or, for the matter of that, the freedom to commit any offence whatsoever. Therefore, penal laws, that is to say laws which define offences and prescribe punishment for the commission of offences do not attract the application of Article 19 (1). It cannot be said that the object of the penal laws is generally such as not to involve any violation of the rights conferred by Article 19 (1) because after the decision of this Court in the Bank Nationalisation case the theory, that the object and form of the State action alone determine the extent of protection that may be claimed by an individual and that the effect of the State action on the fundamental right of the individual is irrelevant, stands discredited. But the point of the matter is that, in pith and substance, penal laws do not deal with the subject-matter of rights enshrined in Article 19 (1). That again is not enough for the purpose of deciding upon the applicability of Article 19, because even if a law does not, in its pith and substance, deal with any of the fundamental rights conferred by Article 19 (1), if the direct and inevitable effect of the law is such as to abridge or abrogate any of those rights, Article 19 (1) shall have to be attracted. It would then become necessary to test the validity of even a penal law on the touchstone of that Article. On this latter aspect of the matter, it is clear that the deprivation of freedom consequent upon an order of conviction and sentence is not a direct and inevitable consequence of the penal law but is merely incidental to the order of conviction and sentence which may or may not come into play, that is to say, which may or may not be passed. Section 302 of the Penal Code, therefore, does not have to stand the test of Article 19 (1) of the Constitution. [190 C-H, 191 A-B]
The onus of satisfying the requirements of Article 19, assuming that the Article applies. lies on the person challenging its validity. There is initial presumption in favour of the constitutionality of the state and the burden of rebutting that presumption is thrown on the party who challenges the constitutionality on the ground of Article 19. Behind the view that there is a presumption of constitutionality of a statute and the onus to rebut the same lies on those who challenge the legislation, is the rationale of judicial restraint, a recognition of the limits of judicial review, a respect for the boundaries of legislative and judicial functions, and the judicial responsibility to guard the trespass from one side or the other. The primary function of the courts is to interpret and apply the laws according to the will of those who made them and not to transgress into the legislative domain of policy-making. Even where the burden is on the State to show that the restriction imposed by the impugned statute is reasonable and in public interest, the extent and the manner of discharge of the burden necessarily depends on the subject-matter of the legislation, the nature of the inquiry, and the scope and limits of judicial review. [192 C-D, 193 A, C-D, 194 D-E] Saghir Ahmad v. State of Uttar Pradesh, [1955] 1 SCR 707; Khyerbari Tea Co. v. State of Assam & Ors., A.I.R. 1964 SC 925; B. Banerjee v. Anita Pan, [1975] 2 SCR 774 @ 787; Pathumma v. State of Kerala, [1978] 2 SCR 537; Dennis v. United States, 341 US 494, 525: 95 L.Ed. 1137: 71 S. Ct. 857; Gregg v. Georgia, 428 US 153: 49 L.Ed. 2nd 859; State of Madras v. V.G. Rao, [1952] SCR 597 @ 607; Jagmohan Singh v. State of U.P., [1973] 2 SCR 541, referred to.
5. Statistical attempts to assess the true penological value of capital punishment remain inconclusive. Firstly, statistics of deterred potential murderers are hard to obtain. Secondly, the approach adopted by the Abolitionists is over simplified at the cost of other relevant but imponderable factors, the appreciation of which is essential to assess the true penological value of capital punishment. The number of such factors is infinitude, their charactervariable, duration transient and abstract formulation difficult. Conditions change from country to country and time to time. Due to the inconsistancy of social conditions, it is not scientifically possible to assess with any degree of accuracy, as to whether the variation in the incidence of capital crime is attributable to the presence or absence of death penalty in the penal law of that country for such crimes. [215 E-H, 216 A]
6. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in section 302, Penal Code, on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners' argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelised through the people's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent Reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new sections 235 (2) and 354 (3) in that Code providing for pre-sentence hearing and sentencing procedure on conviction for murder another capital offences were before the Parliament and presumably considered by it when in 1972-73 it took up revision of the Code of 1898, and replaced it by the Code of Criminal Procedure, 1973, it cannot be said that the provision of death penalty as an alternative punishment for murder, in section 302, Penal Code, is unreasonable and not in public interest. Therefore, the impugned provision in section 302, violates neither the letter nor the ethos of Article 19. [221 B-H, 222 A]
7. (i) Neither the new interpretative dimensions given to Articles 19 and 21 by the Supreme Court in Maneka Gandhi, [1978] 2 SCR 621, and Charles Sobraj v. The Superintendent, Central Jail, Tihar, New Delhi, [1979] 1 SCR 512, nor the acceptance by India of the International Covenant on Civil and Political Rights, makes any change in the prevailing standards of decency and human dignity. The International Covenant does not outlaw capital punishment for murder altogether. [225 C-E]
(ii) In accordance with the interpretative principle indicated by the Supreme Court in Maneka's case, Article 21 will read as "No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law" or in its converse positive form as "A person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law." Article 21, thus, clearly brings out the implication, that the Founding Fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. In view of the constitutional provisions-Entries 1 and 2 in List III Concurrent List of Seventh Schedule Articles 72 (1) (c), 161 and 134-it cannot be said that death penalty under section 302, Penal Code, per se or because of its execution by hanging, constitutes an unreasonable, cruel or unusual punishment. By reason of the same constitutional postulates, it cannot be said that the framers of the Constitution considered death sentence for murder or the prescribed traditional mode of its execution as a degrading punishment which would defile "the dignity of the individual" within the contemplation of the Preamble to the Constitution. On parity of reasoning, it cannot be said that death penalty for the offence of murder violates the basic structure of the Constitution. [222 E-H, 223 A-B, F-H]
(iii) Clauses (1) and (2) of Article 6 of the International Covenant on Civil and Political Rights do not abolish or prohibit the imposition of death penalty in all circumstances. All that they require is that, firstly, death penalty shall not be arbitrarily inflicted; secondly, it shall be imposed only for most serious crimes in accordance with a law which shall not be an ex post facto legislation.
Thus, the requirements of these clauses are substantially the same as the guarantees or prohibitions contained in Articles 20 and 21 of our Constitution. India's commitment, therefore, does not go beyond what is provided in the Constitution and the Indian Penal Code and the Criminal Procedure Code. The Penal Code prescribes death penalty as an alternative punishment only for heinous crimes which are not more than seven in number. Section 354 (3) of the Criminal Procedure Code, 1973 in keeping with the spirit of the International Covenant, has further restricted the area of death penalty. India's penal laws, including the impugned provisions and their application, are thus entirely in accord with its international commitment. [224 G-H, 225 A-C]
8. The procedure provided in Criminal Procedure Code for imposing capital punishment for murder and some other capital crimes under the Penal Code cannot, by any reckoning, be said to be unfair, unreasonable or unjust. Nor can it be said that this sentencing discretion, with which the Courts are invested, amounts to delegation of its power of legislation by Parliament. The impugned provisions do not violate Articles 14, 19 and 21 of the Constitution. [238 B, G-H, 239 A-B]
Section 235 (2) of the Code of Criminal Procedure makes not only explicit what according to the decision in Jagmohan's case was implicit in the scheme of the Code, but also bifurcates the trial by providing two hearings, one at the preconviction stage and another at the pre-sentence stage. And, section 354 (3) of the Code marks a significant shift in the legislative policy underlying the Code, 1898, as in force immediately before April 1, 1974, according to which both the alternative sentences of death or imprisonment for life provided for murder and for certain other capital offences under the Penal Code, were normal sentences. Now, according to this changed legislative policy which is patent on the face of section 354 (3), the normal punishment for murder and six other capital offences under the Penal Code is imprisonment for life (or imprisonment for a term of years) and death penalty is an exception. [229 F- G, A-B]
Although sub-section (2) of section 235 of the Code does not contain a specific provision as to evidence and provides only for hearing of the accused as to sentence, yet it is implicit in this provision that if a request is made in that behalf by either the prosecution or the accused, or by both, the Judge should give the party or parties concerned an opportunity of producing evidence or material relating to the various factors bearing on the question of sentence. [230 E-F] Jagmohan Singh v. State of U.P., [1973] 2 SCR 541, reiterated. Santa Singh v. State of Punjab, AIR 1973 SC 2385, referred to.
9. The expression "special reasons" in the context of section 354 (3) obviously means "exceptional reasons" founded on the exceptionally grave circumstances of the particular case relating to crime as well as criminal. Thus, the legislative policy now writ large and clear on the face of section 354 (3) is that on conviction of murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases. [236 C-D] Balwant Singh v. State of Punjab, [1976] 2 SCR 684, referred to.
10. Section 235 (2) of the Code provides for a
bifurcated trial and specifically gives the accused person a
right of pre-sentence hearing, at which stage, he can bring
on record material or evidence, which may not be strictly
relevant to or connected with the particular crime under
inquiry, but nevertheless have, consistently with the policy
underlined in section 354 (3), a bearing on the choice of
sentence. The present legislative policy discernible from
section 235(2) read with section 354(3) is that in fixing
the degree of punishment or making the choice of sentence
for various offences, including one under section 302, Penal
Code, the Court should not confine its consideration
"principally" or "merely" to the circumstances connected
with the particular crime, but also give due consideration
to the circumstances of the criminal. [237 C-E]
11. The Supreme Court should not venture to formulate
rigid standards in an area in which the Legislature so
warily treads. Only broad guidelines consistent with the
policy indicated by the Legislature can be laid down. But
this much can be said that in order to qualify for inclusion
in the category of "aggravating circumstances" which may
form the basis of "special reasons" in section 354(3),
circumstances found on the facts of a particular case, must
evidence aggravation of an abnormal or special degree. [243
E-F, 254 B-C]
Gurbakash Singh Sibbia and Ors. v. State of Punjab,
[1980] 3 SCR p. 383, applied.
Hyman and Anr. v. Rose, [1912] AC 623, referred to.
12. Sections 354 (3) and 235 (2) and other related
provisions of the Code of 1973 make it clear that for making
the choice of punishment or for ascertaining
the existence or absence of "special reasons" in that
context, the Court must pay due regard both to the crime and
the criminal. What is the relative weight to be given to the
aggravating and mitigating factors, depends on the facts and
circumstances of the particular case. More often than not,
these two aspects are so intertwined that it is difficult to
give a separate treatment to each of them. This is so
because "style is the man." In many cases, the extremely
cruel or beastly manner of the commission of murder is
itself a demonstrated index of the depraved character of the
perpetrator. That is why, it is not desirable to consider
the circumstances of the crime and the circumstances of the
criminal in two separate water-tight compartments. In a
sense, to kill is to be cruel and therefore all murders are
cruel. But such cruelty may vary in its degree of
culpability. And it is only when the culpability assumes the
proportion of extreme depravity that "special reasons" can
legitimately be said to exist.
[251 G-H, 252 A-C]
Rajendra Prasad v. State of U.P. [1979] 3 SCR p. 78,
Bishnu Deo Shaw v. State of West Bengal, [1979] 3 SCR p.
355, overruled.
13. There are numerous other circumstances justifying
the passing of the lighter sentence, as there are
countervailing circumstances of aggravation. "We cannot
obviously feed into a judicial computer all such situations
since they are astrological imponderables in an imperfect
and undulating society." Nonetheless, it cannot be over
emphasised that the scope and concept of mitigating factors
in the area of death penalty must receive a liberal and
expansive construction by the courts in accord with the
sentencing policy writ large in section 354 (3). Judges
should never be blood-thirsty. Hanging of murderers has
never been too good for them. Facts and figures, albeit
incomplete, furnished by the Union of India, show that in
the past, Courts have inflicted the extreme penalty with
extreme infrequency-a fact which attests to the caution and
compassion which they have always brought to bear on the
exercise of their sentencing discretion in so grave a
matter. It is, therefore, imperative to voice the concern
that Courts, aided by the broad illustrative guidelines
indicated by the Supreme Court, will discharge the onerous
function with evermore scrupulous care and humane concern,
directed along the highroad of legislative policy outlined
in section 354 (3), viz., that for persons convicted of
murder life imprisonment is the rule and death sentence an
exception. A real and abiding concern for the dignity of
human life postulates resistance to taking a life through
law's instrumentality. That ought Lot to be done save in the
rarest of rare cases when the alternative option is
unquestionably foreclosed. [255 E-H, 256 A-C]
Per Bhagwati J. (Dissenting)
1:1. Ordinarily, on the principle of stare decisis,
Judges would hold themselves bound by the view taken in an
earlier case and resist any attempt at reconsideration of
the same issue. But, for several weighty and given
considerations, the Court can depart from this precedential
rule in any particular case.
[258 A-B]
1:2. The rule of adherence to precedence is not a rigid
and inflexible rule of law, but it is a rule of practice
adopted by the Courts for the purpose of ensuring uniformity
and stability in the law. Otherwise there will be no
certainty and predictability in the law, leading to chaos
and confusion and in the process
destroying the rule of law, and increasing the labour of
judges. But this rule of adherence to precedents; though a
necessary tool "in the legal smithy," is only a useful
servant and can not be allowed to turn into a tyrannous
master. If the rule of stare decisis were followed blindly
and mechanically, it would dwarf and stultify the growth of
the law and affect its capacity to adjust itself to the
changing needs of the society. [258 B-C, D,E,F]
1:3 There are certain issues which transcend technical
considerations of stare decisis and if such an issue is
brought before the Court, it would be nothing short of
abdication of its constitutional duty for the Court to
refuse to consider such issue by taking refuge under the
doctrine of stare decisis. The Court may refuse to entertain
such an issue like the constitutional validity of death
penalty because it is satisfied that the previous decision
is correct but it cannot decline to consider it on the
ground that it is barred by the rule of adherence to
precedents. [259 E-G]
In the present case, there are two other supervening
circumstances which justify, may compel, re-consideration of
the decision in Jagmohan's case. The first is the
introduction of the new Code of Criminal Procedure in 1973,
which by section 354, sub-section (3) has made life sentence
the rule, in case of offences punishable with death or in
the alternative imprisonment for life and provided for
imposition of sentence of death only in exceptional cases
for special reasons. The second and the still more important
circumstance which has supervened since the decision in
Jagmohan's case is the new dimension of Articles 14 and 21
unfolded by the Supreme Court in Maneka Gandhi v. Union of
India (1978) 2 SCR 663. This new dimension of Articles 14
and 21 renders the death penalty provided in section 302 of
the Indian Penal Code read with section 354(3) of the Code
of Criminal Procedure vulnerable to attack on a ground not
available at the time when Jagmohan's case was decided.
Furthermore, since Jagmohan's case was decided, India has
ratified two international instruments on Human Rights and
particularly the International Covenant on civil and
political rights.
[259 G-H, 260 A-D]
Jagmohan v. State of U.P. A.I.R. 1973 SC 947, dissented
from.
State of Washington v. Dawson and Company 264 U.S. 646;
68 L. Edn. 219 dissenting judgment quoted with approval.
Maneka Gandhi v. Union of India, [1978] 2 SCR 663
applied.
2:1. The constitutional validity of the death penalty
provided as an alternative punishment in section 302 of the
Indian Penal Code read with section 354 sub-section (3) of
the Code of Criminal Procedure cannot be sustained. Death
penalty does not serve any social purpose or advance any
constitutional value and is totally arbitrary and
unreasonable so as be violative of Articles 14, 19, and 21
of the Constitution, [256 F, 257 E]
Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC
947. not followed.
2:2 The culture and ethos of the nation as gathered
from its history, its tradition and its literature would
clearly be relevant factors in adjudging the
constitutionality of death penalty and so would the ideals
and values embodied in the Constitution which lays down the
basic frame-work of the social and political structure of
the country, and which sets out the objectives and goals to
be pursued by the people in a common endeavour to secure
happiness and welfare of every member of the society. So
also standards or norms set by International organisations
and bodies have relevance in determining the constitutional
validity of death penalty and equally important in
construing and applying the equivocal formulae of the
Constitution would be the "wealth of non-legal learning and
experience that encircles and illuminates" the topic of
death penalty. [261 B-E]
2:3. The objective of the United Nations has been and
that is the standard set by the world body that capital
punishment should be abolished in all countries. This
normative standard set by the world body must be taken into
account in determining whether the death penalty can be
regarded as arbitrary, excessive and unreasonable so as to
be constitutionally invalid. [268 B-C]
2:4. The Constitution of India is a unique document. It
is not a mere pedantic legal text but it embodies certain
human values, cherished principles, and spiritual norms and
recognises and upholds the dignity of man. It accepts the
individual as the focal point of all development and regards
his material, moral and spiritual development as the chief
concern of its various provisions. It does not treat the
individual as a cog in the mighty all-powerful machine of
the State but places him at the centre of the constitutional
scheme and focuses on the fullest development of his
personality. The several provisions enacted in the
constitutions for the purpose of ensuring the dignity of the
individual and providing for his material, moral and
spiritual development would be meaningless and ineffectual
unless there is rule of law to invest them with life and
force.
[268 C-D, G-H]
2:5. The rule of law permeates the entire fabric of the
Constitution and indeed forms one of its basic features. The
rule of law excludes arbitrariness; its postulate is
'intelligence without passion' and 'reason freed from
desire'. Wherever we find arbitrariness or unreasonableness
there is denial of the rule of law. "Law" in the context of
the rule of law, does not mean any law enacted by the
legislative authority, howsoever arbitrary or despotic it
may be. Otherwise even under a dictatorship it would be
possible to say that there is rule of law, because every law
made by the dictator howsoever arbitrary and unreasonable
has to be obeyed and every action has to be taken in
conformity with such law. In such a case too even where the
political set up is dictatorial, it is law that governs the
relationship between men and men and between men and the
State. But still it is not a rule of law as understood in
modern jurisprudence because in jurisprudential terms, the
law itself in such a case being an emanation from the
absolute will of the dictator, it is in effect and substance
the rule of man and not of law which prevails in such a
situation. What is a necessary element of the rule of law is
that the law must not be arbitrary and irrational and it
must satisfy the test of reason and the democratic form of
polity seeks to ensure this element by making the framers of
the law accountable to the people. [269 A-E]
2:6. The rule of law has much greater vitality under
our Constitution than it has in other countries like the
United Kingdom which has no constitutionally enacted
Fundamental Rights. The rule of law has really three basic
and fundamental assumptions; one is that law making must be
essentially in the hands of a democratically elected
legislature, subject of course to any power in the executive
in an emergent situation to promulgate ordinance effective
for a short duration while the legislation is not in session
as also to enact delegated legislation in accordance with
the guidelines laid down by the legislature; the other is
that, even in the hands of a democratically elected
legislature, there should not be unfettered legislative
power; and lastly there must be an independent judiciary to
protect the citizen against excesses of executive and
legislative power and we have in our country all these three
elements essential to the rule of law. It is plain and
indisputable that under our Constitution law cannot be
arbitrary or irrational and if it is, it would be clearly
invalid, whether under Article 14 or Article 19 or Article
21, whichever be applicable. [275 E-H. 276 A-B]
Minerva Mill's case [1981] 1 SCR 206; Maneka Gandhi's
case [1978] 2 SCR 621; Airport Authority of India's case
[1979] 3 SCR 1014; A.K. Gopalan's case [1950] 3 SCR 88; F.C.
Mullen's case [1981] 2 SCR 516 referred to.
2:7. The Constitution does not in so many terms
prohibit capital punishment. In fact, it recognises death
sentence as one of the penalties which may be imposed by
law. Apart from Article 21, Clause (C) of Article 72 also
recognises the possibility of a sentence of death being
imposed on a person convicted of an offence inasmuch as it
provides that the President shall have the power to suspend,
remit or commute the sentence of any person who is convicted
of an offence and sentenced to death. Therefore, the
imposition of death sentence for conviction of an offence is
not in all cases forbidden by the Constitution. But that
does not mean that the infliction of death penalty is
blessed by the Constitution or that it has the imprimatur or
seal of approval of the Constitution. The Constitution is
not a transient document but it is meant to endure for a
long time to come and during its life, situations may arise
where death penalty may be found to serve a social purpose
and its prescription may not be liable to be regarded as
arbitrary or unreasonable and therefore to meet such
situations, the Constitution had to make a provision and
this it did in Article 21 and clause (c) of Article 72 so
that, even where death penalty is prescribed by any law and
it is otherwise not unconstitutional, it must still comply
with the requirement of Article 21 and it would be subject
to the clemency power of the President under clause (c) of
Article 72. [276 D-H, 277 A-B]
2:8. From the legislative history of the relevant
provisions of the Indian Penal Code and the Code of Criminal
Procedure, it is clear that in our country there has been a
gradual shift against the imposition of death penalty. Life
sentence is now the rule and it is only in exceptional
cases, for special reasons, that death sentence can be
imposed. The legislature has however not indicated what are
the special reasons for which departure can be made from the
normal rule and death penalty may be inflicted. The
legislature has not given any guidance as to what are those
exceptional cases in which, deviating from the normal
rule, death sentence may be imposed. This is left entirely
to the unguided discretion of the court, a feature, which
has lethal consequences so far as the constitutionality of
death penalty is concerned. [277 C-D, 278 E-G]
Rajendra Prasad v. State of U.P. [1979] 3 S.C.R. 646,
referred to.
2:9. The problem of constitutional validity of death
penalty cannot be appreciated in its proper perspective
without an adequate understanding of the true nature of
death penalty and what it involves in terms of human anguish
and suffering. In the first place, death penalty is
irrevocable; it cannot be recalled. It extinguishes the
flame of life for ever and is plainly destructive of the
right to life, the most precious right of all, a right
without which enjoyment of no other rights is possible. If a
person is sentenced to imprisonment, even if it be for life,
and subsequently it is found that he was innocent and was
wrongly convicted, he can be set free. Of course, the
imprisonment that he has suffered till then cannot be undone
and the time he has spent in the prison cannot be given back
to him in specie but he can come back and be restored to
normal life with his honour vindicated, if he is found
innocent. But that is not possible where a person has been
wrongly convicted and sentenced to death and put out of
existence in pursuance of the sentence of death. In his
case, even if any mistake is subsequently discovered, it
will be too late, in every way and for every purpose it will
be too late, for he cannot be brought back to life. The
execution of the sentence of death in such a case makes
miscarriage of justice irrevocable. [281 F-H, 282 A-D]
2:10. Howsoever careful may be the procedural
safeguards, erected by the law before death penalty can be
imposed, it is impossible to eliminate the chance of
judicial error. No possible judicial safeguards can prevent
conviction of the innocent. It is indeed a very live
possibility and it is not at all unlikely that so long as
death penalty remains a constitutionaly valid alternative,
the Court or the State acting through the instrumentality of
the Court may have on its conscience the blood of an
innocent man. [283 D-E. G-H]
2:11. Judicial error in imposition of death penalty
would indeed be a crime beyond punishment. This is the
drastic nature of death penalty, terrifying in its
consequences, which has to be taken into account in
determining its constitutional validity. Death penalty is
barbaric and inhuman in its effect, mental and physical upon
the condemned man and is positively cruel. Its psychological
effect on the prisoner in the Death Row is disastrous. [284
E-F]
Furman v. Georgia 408 US 238; In Re Kemmler 136 US 436;
In Re Medley 134 US 160; quoted with approval.
2:12. Penological goals also do not justify the
imposition of death penalty for the offence of murder. The
prevailing standards of human decency are also incompatible
with death penalty. The standards of human decency with
reference to which the proportionality of the punishment to
the offence is required to be judged vary from society to
society depending on the cultural and spiritual
tradition of the society, its history and philosophy and its
sense of moral and ethical values. [302 A-B]
Moreover, it is difficult to see how death penalty can
be regarded as proportionate to the offence of murder when
legislatively it has been ordained that life sentence shall
be the rule and it is only in exceptional cases for special
reasons that death penalty may be imposed. It is obvious
from the provision enacted in section 354 (3) of the Code of
Criminal Procedure that death sentence is legislatively
regarded as disproportionate and excessive in most cases of
murder and it is only in exceptional cases that it can at
all be contended that death sentence is proportionate to the
offence of murder. But, then the legislature does not
indicate as to what are those exceptional cases in which
death sentence may be regarded as proportionate to the
offence and, therefore, reasonble and just. Death penalty
cannot be regarded as proportionate to the offence of
murder, merely because the murder is brutal, heinous or
shocking. The nature and magnitude of the offence or the
motive and purposes underlying it or the manner and extent
of its commission cannot have any relevance to the
proportionality of death penalty to the offence. [304 H, 305
A-D, 306 D-E]
2:13 The historical course through which death penalty
has passed in the last 150 years shows that the theory that
death penalty acts as a greater deterrent than life
imprisonment is wholly unfounded. Even the various studies
carried out clearly establish beyond doubt that death
penalty does not have any special deterrent effect which
life sentence does not possess and that in any event there
is no evidence at all to suggest that death penalty has any
such special deterrent effect. [316 A, 321 G-H]
2:14. Death penalty as provided under section 302 of
the Indian Penal Code read with section 354 sub-section (3)
of the Code of Criminal Procedure, 1973 does not sub-serve
any legitimate end of punishment, since by killing the
murderer it totally rejects the reformation purpose and it
has no additional deterrent effect which life sentence does
not possess and it is therefore not justified by the
deterrence theory of punishment. Though retribution or
denunciation is regarded by some as a proper end of
punishment, it cannot have any legitimate place in an
enlightened philosophy of punishment. Therefore, death
penalty has no rational penological purpose and it is
arbitrary and irrational and hence violative of Articles 14
and 21 of the Constitution.
[340 D-F]
2:15. On a plain reading of section 302 of the Indian
Penal Code which provides death penalty as alternative
punishment of murder it is clear that it leaves it entirely
to the discretion of the Court whether to impose death
sentence or to award only life imprisonment to an accused
convicted of the offence of murder. Section 302 does not lay
down any standards or principles to guide the discretion of
the Court in the matter of imposition of death penalty. The
critical choice between physical liquidation and life long
incarceration is left to the discretion of the Court and no
legislative light is shed as to how this
158
deadly discretion is to be exercised. The court is left free
to navigate in an unchartered sea without any compass or
directional guidance. [341 A-C]
2:16. Actually section 354 (3) of the Criminal
Procedure Code makes the exercise of discretion more
difficult and uncertain. It is left to the Judge to grope in
the dark for himself and in the exercise of his unguided and
unfettered discretion decide what reasons may be considered
as 'special reasons' justifying award of death penalty and
whether in a given case any such special reasons exist which
should persuade the Court to depart from the normal rule and
inflict death penalty on the accused. There being no
legislative policy or principle to guide the Court in
exercising its discretion in this delicate and sensitive
area of life and death, the exercise of discretion of the
Court is bound to vary from judge to judge. What may appear
as special reasons to one judge may not so appear to another
and the decision in a given case whether to impose the death
sentence or to let off the offender only with life
imprisonment would, to a large extent, depend upon who is
the judge called upon to make the decision. The reason for
his uncertainty in the sentencing process is two-fold.
Firstly, the nature of the sentencing process is such that
it involves a highly delicate task calling for skills and
talents very much different from those ordinarily expected
of lawyers. Even if considerations relevant to capital
sentencing were provided by the legislature, it would be a
difficult exercise for the judges to decide whether to
impose the death penalty or to award the life sentence. But
without any such guidelines given by the legislature, the
task of the judges becomes much more arbitrary and the
sentencing decision is bound to vary with each judge.
Secondly, when unguided discretion is conferred upon the
Court to choose between life and death, by providing a
totally vague and indefinite criterion of 'special reasons'
without laying down any principles or guidelines for
determining what should be considered to be 'special
reasons', the choice is bound to be influenced by the
subjective philosophy of the judge called upon to pass the
sentence and on his value system and social philosophy will
depend whether the accused shall live or die. No doubt the
judge will have to give 'special reasons' if he opts in
favour of inflicting the death penalty, but that does not
eliminate arbitrariness and caprice, firstly because there
being no guidelines provided by the legislature, the reasons
which may appeal to one judge as 'special reasons' may not
appeal to another, and secondly, because reasons can always
be found for a conclusion that the judge instinctively
wishes to reach and the judge can bona fide and
conscientiously find such reasons to be 'special reasons'.
It is now recognised on all hands that judicial conscience
is not a fixed conscience; it varies from judge to judge
depending upon his attitudes and approaches, his
predilections and prejudices, his habits of mind and thought
and in short all that goes with the expression "social
philosophy". Further, the various decisions in which special
reasons have been given singly and cumulatively indicate not
merely that there is an enormous potential of arbitrary
award of death penalty by the High Court and the Supreme
Court but that, in fact, death sentence have been awarded
arbitrarily and freakishly.
[341 G, E-H, 342 E-H.
343 A-B, 353 E-F]
2:17. But where the discretion granted to the Court is
to choose between life and death without any standards or
guide-lines provided by the legislature,
the death penalty does become arbitrary and unreasonable.
The death penalty is qualitatively different from a sentence
of imprisonment. Whether a sentence of imprisonment is for
two yeaes or five years or for life, it is qualitatively the
same, namely, a sentence of imprisonment, but the death
penalty is totally of different. It is irreversible; it is
beyond recall or reparation; it extinguishes life. It is the
choice between life and death which the court is required to
make and this is left to its sole discretion unaided and
unguided by any legislative yardstick to determine the
choice. [356 G-H. 357 A-B]
2:18. The only yardstick which may be said to have been
provided by the legislature is that life sentence shall be
the rule and it is only in exceptional cases for special
reasons that death penalty may be awarded, but it is no
where indicated by the legislature as to what should be
regarded as 'special reasons' justifying imposition of death
penalty. The awesome and fearful discretion whether to kill
a man or to let him live is vested in the Court and the
Court is called upon to exercise this discretion guided only
by its own perception of what may be regarded as 'special
reasons' without any light shed by the legislature. It is
difficult to appreciate how a law which confers such
unguided discretion on the Court without any standards or
guidelines on so vital an issue as the choice between life
and death can be regarded as constitutionally valid. [357B-
D]
2:19. Death penalty in its actual operation is
discriminatory, for it strikes mostly against the poor and
deprived sections of the community and the rich and the
affluent usually escape from its clutches. This circumstance
also adds to the arbitrary and capricious nature of the
death penalty and renders it unconstitutional as being
violative of Articles 14 and 21. [366G-H]
3:1. When a law is challenged on the ground that it
imposes restrictions on the freedom guaranteed by one or the
other sub-clause of clause (1) of Article 19 and the
restrictions are shown to exist by the petitioner, the
burden of estabilshing that the restrictions fall within any
of the permissive clauses (2) to (6) which may be
applicable, must rest upon the State. The State would have
to produce material for satisfying the Court that the
restrictions imposed by the impugned law fall with the
appropriate permissive clause from out of clauses (2) to (6)
of Article 19 Of course there may be cases where the nature
of the legislation and the restrictions imposed by it may be
such that the Court may, without more, even in the absence
of any positive material produced by the State, conclude
that the restrictions fall within the permissible category,
as for example, where a law is enacted by the legislature
for giving effect to one of the Directive Principles of
State Policy and prima facie, the restrictions imposed by it
do not appear to be arbitrary or excessive. Where such is
the position, the burden would again shift and it would be
for the petitioner to show that the restrictions are
arbitrary or excessive and go beyond what is required in
public interest. But once it is shown by the petitioner that
the impugned law imposes restrictions which infringe one or
the other sub-clause of clause (1) of Article 19, the burden
of showing that such restrictions are reasonable and fall
within the permissible category must be on the State and
this burden the State may discharge either by producing
socio economic data before the Court or on consideration of
the provisions in the impugned
law read in the light of the constitutional goals set out in
the Directive Principles of State Policy. The test to be
applied for the purpose of determining whether the
restrictions imposed by the impugned law are reasonable or
not cannot be cast in a rigid formula of universal
application. The nature of the right alleged to have been
infringed, the underlying purpose of the restrictions
imposed, the extent and urgency of the evil sought to be
remedied, the value of human life. the disproportion of the
imposition, the social philosophy of the Constitution and
the prevailing conditions at the time would all enter into
the judicial verdict. And in evaluating such elusive factors
and forming his own conception of what is reasonable in all
the circumstances of a given case, it is inevitable that the
social philosophy and the scale of values of the judge
participating in the decision would play a very important
part. [293 G-H, 294 A-G]
State of Madras v. V.J. Row [1952] SCR 597. Shagir
Ahmed v. State of U.P. [1955] 1 SCR 707 followed.
Khyerbari Tea Co. v. State of Assam [1964] 5 SCR 975;
B. Banerjee v. Anita Pan [1975] 2 SCR 774; Ram Krishna
Dalmia v. S.R. Tandolkar & Ors. [1959] SCR 279; State of
Bombay v. R.M.D. Chamarbaugwala [1957] SCR 874; Mohd. Hanif
v. State of Bihar [1959] SCR 629; discussed and
distinguished.
Pathumma v. State of Kerala [1978] 2 SCR 537 referred
to.
3:2. The position in regard to onus of proof in a case
where the challenge is under Article 21 is much clearer and
much more free from or doubt or debate than in a case where
the complaint is of violation of clause (1) of Article 19.
Wherever there is deprivation of life, i.e. not only
physical existence, but also use of any faculty or limb
through which life is enjoyed and basic human dignity, or of
any aspect of personal liberty, the burden must rest on the
State to establish by producing adequate material or
otherwise that the procedure prescribed for such deprivation
is not arbitrary but is reasonable, fair and just. Where
therefore a law authorises deprivation of the right to life,
the reasonableness, fairness and justness of the procedure
prescribed by it for such deprivation must be established by
the State. The burden must lie upon the State to show that
death penalty is not arbitrary and unreasonable and serves a
legitimate social purpose, despite the possibility of
judicial error in convicting and sentencing an innocent man
and the brutality and pain, mental as well as physical,
which death sentence invariably inflicts upon the condemned
prisoner. The State must place the necesary material on
record for the purpose of discharging this burden which lies
upon it and if it fails to show by presenting adequate
evidence before the Court or otherwise that death penalty is
not arbitrary and unreasonable and does serve a legitimate
social purpose, the imposition of death penalty under
section 302 of the Indian Penal Code read with section 354
sub-section (3) of the Code of Criminal Procedure would have
to be struck down as violative of the protection of Article
21. [295 A-C, 296 D-E]
3:3. There is a presumption in favour of the
constitutionality of a statute and the burden of showing
that it is arbitrary or discriminatory lies upon the
petitioner, because it must be presumed that the legislature
understands and
correctly appreciates the needs of its own people, that its
laws are directed to problems made manifest by experience
and that its discriminations are based on adequate grounds.
It would be a wise rule to adopt to presume the
constitutionality of a statute unless it is shown to be
invalid. But this rule is not a rigid inexorable rule
applicable at all times and in all situations. There may
conceivably be cases where having regard to the nature and
character of the legislation. the importance of the right
affected and the gravity the injury caused by it and the
moral and social issue involved in the determination, the
Court may refuse to proceed on the basis of presumption of
constitutionality and demand from the State justification of
the legislation with a view to establishing that it is not
arbitrary or discriminatory. [296 G-H, 298 C-E]
The burden rests on the State to establish by producing
material before the Court or authorities, that death penalty
has greater deterrent effect than life sentence in order to
justify its imposition under the law. If the State fails to
discharge this burden which rests upon it, the Court would
have to hold that death penalty has not been shown to have
greater deterrent effect and it does not therefore serve a
rational legislative purpose. [315 F-H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
273 of 1979.
Appeal by special leave from the Judgment and Order
dated the 14th August, 1978 of the Punjab & Haryana High
Court in Criminal Appeal No. 234 of 1978)
WRIT PETITIONS NOS. 564, 165, 179, 168, 434, 89, 754, 756 &
976 of 1979.
(Under Article 32 of the Constitution of India)
AND
Special Leave Petition (Criminal) No. 1732 of 1979
R.K. Jain, R.P. Singh, Shiv Kumar Sharma Suman, Kapoor
and Sukumar Sahu for the Petitioner in W.P. 564/79.
Dr. Y.S. Chitale, Mukul Mudgal and A.K. Ganguli for the
Petitioner in W.P. No. 165 of 1979.
Vimal Dave and Miss Kailash Mehta for the Petitioner in
W.P. 179 of 1979.
WP. Nos. 168 & 89 of 1979; Jail Petitions.
H.K. Puri, A.C. for the Appellant in Crl. Appeal.
S.S. Khanduja and Lalit Kumar Gupta for the Petitioner
in W.P. No. 434 of 1979.
L.N. Gupta for the Petitioner in S.L.P.
L.M. Singhvi and S.K. Jain for the Petitioner in WP.
754/79.
Harbans Singh for the Petitioner in W.P. 756/79
N.D. Garg for Mr. S.K. Bisaria and T.L. Garg for the
Petitioner in WP. 976 of 1979.
Soli J. Sorabjee, Sol. Genl. in WP. 564 & 165- U.R.
Lalit, in WP. 564; for U.O.I., R.N. Sachthey, for U.O.I.,
Gujarat, Haryana States, M.L. Shroff for Gujarat, Haryana &
Maharashtra, Miss A. Subhashini, and Mr. K.N. Bhatt, for
U.O.I. for Respondent No. 1 in WPs. 554, 179, R. 2 in WPs.
434 & 754, R.1 in WP. 165, R. 3 in WP. 756, R. 2 in WPs. 564
& 165. R in 168 & 89, RR 1 & 2 in WP. 756 and RR 1 and 3 in
WP. 754 of 1979.
D.P. Singh Chauhan, Addl. Advocate General, U.P. and
O.P. Rana for R. 2 in WP. 179.
R.S. Sodhi and Hardev Singh for R. 1 in WP. 434 &
Respondent in Crl. A. 273 of 1979.
R.S. Sodhi for Respondent No. 3 in WP. 434/79.
R.L. Kohli and R.C. Kohli for the compalinant in WP.
754/79.
D.P. Mukherjee for the Intervener No. 1.
Dr. LM Singhvi for the Intervener No. 2. Intervener No.
3 in person.
V.J. Francis for the intervener No. 4.
R.K. Garg and R.K. Jain for the intervener No. 5.
FOR THE ADVOCATES GENERAL:
1. Andhra Pradesh : P. Ramachandra Reddy, Advocate
General A.P. Rao and G.
Narayana
163
2. Gujarat : D.V. Patel, (Maharashtra)
3. Maharashtra : R.N. Sachthey, (Gujarat) M.N.
Shroff Gujarat & Maharashtra
4. Jammu & : Altaf Ahmed
Kashmir
5. Madhya : S.K. Gambhir
Pradesh
6. Punjab : R.S. Sodhi and Hardev Singh
7. Orissa : G.B. Patnaik, Advocate General
and R.K. Mehta
8. Tamil Nadu : A.V. Rangam
9. West Bengal : Sukumar Ghosh and G.S.
Chatterjee
The following Judgments were delivered:
SARKARIA, J. This reference to the Constitution Bench
raises a question in regard to the constitutional validity
of death penalty for murder provided in Section 302, Penal
Code, and the sentencing procedure embodied in sub-section
(3) of Section 354 of the Code of Criminal Procedure, 1973.
The reference has arisen in these circumstances:
Bachan Singh, appellant in Criminal Appeal No. 273 of
1979, was tried and convicted and sentenced to death under
Section 302, Indian Penal Code for the murders of Desa
Singh, Durga Bai and Veeran Bai by the Sessions Judge. The
High Court confirmed his death sentence and dismissed his
appeal.
Bachan Singh's appeal by special leave, came up for
hearing before a Bench of this Court (consisting of Sarkaria
and Kailasam, JJ.). The only question for consideration in
the appeal was, whether the facts found by the Courts below
would be "special reasons" for awarding the death sentence
as required under Section 354(3) of the Code of Criminal
Procedure 1973.
Shri H.K. Puri, appearing as Amicus Curiae on behalf of
the appellant, Bachan Singh, in Criminal Appeal No. 273 of
1979 contended that in view of the ratio of Rajendra Prasad v.
State of U.P.,(1) the Courts below were not competent to
impose the extreme penalty of death on the appellant. It was
submitted that neither the circumstance that the appellant
was previously convicted for murder and committed these
murder after he had served out the life sentence in the
earlier case, not the fact that these three murders were
extremely heinous and inhuman, constitutes a "special
reason" for imposing the death sentence within the meaning
of Section 354(3) of the Code of Criminal Procedure 1973.
Reliance for this argument was placed on Rajendra Prasad
(ibid) which according to the counsel, was on facts very
similar, if not identical, to that case.
Kailasam, J. was of opinion that the majority view in
Rajendra Prasad taken by V.R. Krishna Iyer, J, who spoke for
himself and D.A. Desai, J., was contrary to the judgment of
the Constitution Bench in Jagmohan Singh v. State of Uttar
Pradesh(2), inter alia, on these aspects:
(i) In Rajendra Prasad, V.R. Krishna Iyer, J. observed :
"The main focus of our judgment is on this
poignant gap in 'human rights jurisprudence' within the
limits of the Penal Code, impregnated by the
Constitution. To put it pithily, a world order voicing
the worth of the human person, a cultural legacy
charged with compassion, an interpretative liberation
from colonial callousness to life and liberty, a
concern for social justice as setting the sights of
individual justice, interest with the inherited text of
the Penal Code to yield the goals desiderated by the
Preamble and Articles 14, 19 and 21."
According to Kailasam, J., the challenge to the
award of the death sentence as violative of Articles
19, 14 and 21, was repelled by the Constitution Bench
in Jagmohan's case.
(ii) In Jagmohan's case, the Constitution Bench
held:
"The impossibility of laying down standards (in
the matter of sentencing) is at the very core of
criminal law as administered in India which invests the
judges with a
very wide discretion in the matter of fixing the degree
of punishment and that this discretion in the matter of
sentence in liable to be corrected by superior
Courts... The exercise of judicial discretion on well
recognised principles is, in the final analysis, the
safest possible safeguard for the accused."
In Rajendra Prasad, the majority decision characterised
the above observations in Jagmohan as: "incidental
observations without concentration on the sentencing
criteria", and said that they are not the ratio of the
decision, adding. "Judgments are not Bible for every line to
be venerated."
(iii) In Rajendra Prasad, the plurality observed:
"It is constitutionally permissible to swing a
criminal out of corporeal existence only if the
security of State and society, public order and the
interests of the general public compel that course as
provided in Article 19(2) to (6)."
This view again, according to Kailasam, J., is inconsistent
with the law laid down by the Constitution Bench in
Jagmohan, wherein it was held that deprivation of life is
constitutionally permissible if that is done according to
"procedure established by law".
(iv) In Rajendra Prasad, the majority has further
opined:
"The only correct approach is to read into Section
302. I.P.C. and Section 354(3) Cr. P.C., the human
rights and humane trends in the Constitution. So
examined, the rights to life and the fundamental
freedoms is deprived when he is hanged to death, his
dignity is defiled when his neck is noosed and
strangled."
Against the above, Kailasam, J. commented : 'The only
change after the Constitution Bench delivered its judgment
is the introduction of Section 354(3) which requires special
reasons to be given if the Court is to award the death
sentence. If without the restriction of stating sufficient
reasons death sentence could be constitutionally awarded
under the I.P.C. and Cr. P.C. as it stood before the
amendment, it is difficult to perceive how by requiring
special reasons to
be given the amended section would be unconstitutional
unless the "sentencing sector is made most restrictive and
least vagarious".
(v) In Rajendra Prasad, the majority has held that:
"Such extraordinary grounds alone constitutionally
qualify as special reasons as leave on option to the
Court but to execute the offender if State and society
are to survive. One stroke of murder hardly qualifies
for this drastic requirement, however, gruesome the
killing or pathetic the situation, unless the inherent
testimony coming from that act is irresistible that the
murderous appetite of the convict is too chronic and
deadly that ordered life in a given locality or society
or in prison itself would be gone if this man were now
or later to be at large. If he is an irredeemable, like
a bloodthirsty tiger, he has to quit his terrestrial
tenancy."
According to Kailasam, J., what is extracted above,
runs directly counter to and cannot be reconciled with the
following observations in Jagmohan's case:
"But some (murders) at least are diabolical in
conception and cruel in execution. In some others where
the victim is a person of high standing in the country,
society is liable to be recked to its very foundation.
Such murders cannot be simply wished away by finding
alibis in the social maladjustment of the murderer.
Prevalence of such crimes speaks, in the opinion of
many, for the inevitability of death penalty not only
by way of deterrence but as a token of emphatic
disapproval by the society A very responsible body (Law
Commission) has come to the conclusion after
considering all the relevant factors. On the
conclusions thus offered to us, it will be difficult to
hold that capital punishment as such is unreasonable or
not required in the public interest."
(vi) Kailasam, J. was further of the opinion that
it is equally beyond the functions of a Court to evolve
"working rules for imposition of death sentence bearing
the markings of enlightened flexibility and social
sensibility" or to make law "by cross-fertilisation
from sociology, history, cultural anthropology and
current national perils and developmental goals and,
above all, constitutional currents". This function, in
his view, belongs only to Parliament. The Court must
administer the law as it stands.
(vii) The learned Judge has further expressed that the
view taken by V.R. Krishna Iyer, J. in Rajendra Prasad
that " 'special reasons' necessary for imposing death
penalty must relate not to the crime as such, but to
the criminal" is not warranted by the law as it stands
today.
Without expressing his own opinion on the various
questions raised in that case including the one with regard
to the scope, amplification and application of Section 354
(3) of the Code of Criminal Procedure, 1974, Sarkaria, J.,
in agreement with Kailasam, J., directed the records of the
case to be submitted to the Hon'ble the Chief Justice, for
constituting a large Bench "to resolve the doubts,
difficulties and inconsistencies pointed out by Kailasam,
J."
In the meanwhile, several persons convicted of murders
and sentenced to death, filed writ petitions (namely, Writ
Petitions 564, 165, 179, 434, 89, 754, 756 and 976 of 1979)
under Article 32 of the Constitution directly challenging
the constitutional validity of the death penalty provided in
Section 302 of the Indian Penal Code for the offence of
murder, and the sentencing procedure provided in Section 354
(3) of the Code of Criminal Procedure, 1974. That is how,
the matter has now come up before this larger Bench of five
Judges.
At the outset, Shri R.K. Garg submitted with some
vehemance and persistence, that Jagmohan's case needs
reconsideration by a larger Bench if not by the Full Court.
Reconsideration of Jagmohan, according to the learned
counsel, is necessitated because of subsequent events and
changes in law. Firstly, it is pointed out that when
Jagmohan was decided in 1972, the then extant Code of
Criminal Procedure, 1898 left the choice between death and
life imprisonment as punishment for murder entirely to the
discretion of the Court. This position has since undergone a
complete change and under Section 354 (3) of the Code of
Criminal Procedure, 1973, death sentence has ceased to be
the normal penalty for murder. Secondly,
it is argued, the seven-Judge decision of this Court in
Maneka Gandhi v. Union of India(1) has given a new
interpretative dimension of the provisions of Articles 21,
19 and 14 and their inter-relationship, and according to
this new interpretation every law of punitive detention both
in its procedural and substantive aspects must pass the test
of all the three Articles. It is stressed that an argument
founded on this expansive interpretation of these Articles
was not available when Jagmohan was decided. Thirdly, it is
submitted that India has since acceded to the international
Covenant of Civil and Political Rights adopted by the
General Assembly of the United Nations, which came into
force in December 16, 1976. By virtue of this Covenant.
India and the other 47 countries who are a party to it,
stand committed to a policy for abolition of the 'death
penalty'.
Dr. L.M. Singhvi submitted that the question of death
penalty cannot be foreclosed for ever on the abstract
doctrine of stare decisis by a previous decision of this
Court. It is emphasised that the very nature of the problem
is such that it must be the subject of review from time to
time so as to be in tune with the evolving standards of
decency in a maturing society.
The learned Solicitor-General, Shri Soli Sorabji
opposed the request of Shri Garg for referring the matter to
a larger Bench because such a course would only mean
avoidable delay in disposal of the matter. At the same time,
the learned counsel made it clear that since the
constitutionality of the death penalty for murder was now
sought to be challenged on additional arguments based on
subsequent events and changes in law, he would have no
objection on the ground of stare decisis, to a fresh
consideration of the whole problem by this very Bench.
In view of the concession made by Shri Sorabji, we
proceeded to hear the counsel for the parties at length, and
to deal afresh with the constitutional questions concerning
death penalty raised in these writ petitions.
We have heard the arguments of Shri R.K. Garg.
appearing for the writ-petitioners in Writ Petition No.
564/79 for more than three weeks and also those of Dr. L.M.
Singhvi, Dr. Chitaley and
S/Shri Mukhoty, Dave and R.K. Jain, appearing for
interveners or for the other writ-petitioners.
We have also heard the arguments of Shri Soli Sorabji,
Solicitor-General, appearing for the Union of India and Shri
Patel appearing for the State of Maharashtra and the other
counsel appearing for the respondents.
The principal questions that fall to be considered in
this case are:
(I) Whether death penalty provided for the offence of
murder in Section 302, Penal Code is
unconstitutional.
(II) If the answer to the foregoing question be in the
negative, whether the sentencing procedure
provided in Section 354 (3) of the Code of
Criminal Procedure, 1973 (Act 2 of 1974) is
unconstitutional on the ground that it invests the
Court with unguided and untrammelled discretion
and allows death sentence to be arbitrarily or
freakishly imposed on a person found guilty of
murder or any other capital offence punishable
under the Indian Penal Code with death or, in the
alternative, with imprisonment for life.
We will first take up Question No. (I) relating to the
constitutional validity of Section 302, Penal Code.
Question No. (I):
Before dealing with the contentions canvassed, it will
be useful to have a short survey of the legislative history
of the provisions of the Penal Code which permit the
imposition of death penalty for certain offences.
The Indian Penal Code was drafted by the First Indian
Law Commission presided over by Mr. Macaulay. The draft
underwent further revision at the hands of well-known
jurists, like Sir Barnes Peacock, and was completed in 1850.
The Indian Penal Code was
passed by the then Legislature on October 6, 1860 and was
enacted as Act No XLV of 1860.
Section 53 of the Penal Code enumerates punishments to
which offenders are liable under the provisions of this
Code. Clause Firstly of the Section mentions 'Death' as one
of such punishments. Regarding 'death' as a punishment, the
authors of the Code say: "We are convinced that it ought to
be very sparingly inflicted, and we propose to employ it
only in cases where either murder or the highest offence
against the State has been committed." Accordingly, under
the Code, death is the punishment that must be awarded for
murder by a person under sentence of imprisonment for life
(Section 303). This apart, the Penal Code prescribes 'death'
as an alternative punishment to which the offenders may be
sentenced, for the following seven offences:
(1) Waging war against the Government of India. (s.
121)
(2) Abetting mutiny actually committed. (s. 132)
(3) Giving or fabricating false evidence upon which an
innocent person suffers death. (s. 194)
(4) Murder which may be punished with death or life
imprisonment. (s. 302)
(5) Abetment of suicide of a minor or insane, or
intoxicated person. (s. 305)
(6) Dacoity accompanied with murder. (s. 396)
(7) Attempt to murder by a person under sentence of
imprisonment for life if hurt is caused. (s. 307)
In the instant cases, the impugned provision of the
Indian Penal Code is Section 302 which says: "Whoever
commits murder shall be punished with death, or imprisonment
for life, and also be liable to fine." The related
provisions are contained in Sections 299 and 300. Section
299 defines 'culpable homicide'. Section 300 defines
'murder'. Its material part runs as follows:
"Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused
is done with the intention of causing death, or
Secondly-If it is done with the intention of causing
such bodily injury as the offender knows to be likely to
cause death of the person to whom the harm is caused, or
Thirdly-If it is done with the intention of causing
bodily injury to any person and the bodily injury intended
to be inflicted is sufficient in the ordinary course of
nature to cause death, or
Fourthly-If the person committing the act knows that it
is so imminently dangerous that it must, in all probability,
cause death, or such bodily injury as is likely to cause
death, and commits, such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid."
The first contention of Shri Garg is that the provision
of death penalty in Section 302, Penal Code offends Article
19 of the Constitution. It is submitted that the right to
live is basic to the enjoyment of all the six freedoms
guaranteed in clauses (a) to (e) and (g) of Article 19 (1)
of the Constitution and death penalty puts an end to all
these freedoms: that since death penalty serves no social
purpose and its value as a deterrent remains unproven and it
defiles the dignity of the individual so solemnly vouchsafed
in the Preamble of the Constitution, its imposition must be
regarded as an 'unreasonable restriction' amounting to total
prohibition, on the six freedoms guaranteed in Article 19
(1).
Article 19, as in force today, reads as under:
"19 (1). All citizens shall have the right-
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of
India;
(e) to reside and settle in any part of the
territory of India;
(f) .....................;
(g) to practice any profession, or to carry on
any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect
the operation of any existing law, or prevent the State
from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interests of
the sovereignty and integrity of India, the security of
the State, friendly relations with foreign States,
public order, decency or morality, or in relation to
contempt of court, defamation or incitement to an
offence.
(3) Nothing in sub-clause (b) of the said clause shall
affect the operation of any existing law in so far as
it imposes, or prevent the State from making any law
imposing, in the interests of the sovereignty and
integrity of India or public order, reasonable
restrictions on the exercise of the right conferred by
the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall
affect the operation of any existing law in so far as
it imposes, or prevent the State from making any law
imposing, in the interests of the sovereignty and
integrity of India or public order or morality,
reasonable restrictions on the exercise of the right
conferred by the said sub-clause.
(5) Nothing in sub-clauses (d) and (e) of the said clause
shall affect the operation of any existing law in so
far as it imposes, or prevents the State from making
any law imposing, reasonable restrictions on the
exercise of any of the rights conferred by the said
sub-clauses either in the interests of the general
public or for the protection of the interests of any
Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said clause shall
affect the operation of any existing law in so far as
it imposes, or prevents the State from making any law
imposing, in the interests of the general public,
reasonable restrictions on the exercise of the right
con ferred by the said sub-clause, and in particular,
nothing in the said sub-clause, shall affect the
operation of any existing law in so far as it relates
to, or prevent the State from making any law relating
to,-
(i) the professional or technical qualifications
necessary for practising any profession or
carrying on any occupation, trade or business, or
(ii) the carying on by the State, or by a corporation
owned or controlled by the State, of any trade,
business, industry or service, whether to the
exclusion, complete or partial, of citizens or
otherwise."
It will be seen that the first part of the Article
declares the rights in clause (1) comprising of six sub-
clauses namely, (a) to (e) and (g). The second part of the
Article in its five clauses (2) to (6) specifies the limits
upto which the abridgement of the rights declared in one or
more of the sub-clauses of clause (1), may be permitted.
Broadly speaking, Article 19 is intended to protect the
rights to the freedoms specifically enumerated in the six
sub-clauses of clause (1) against State action, other than
in the legitimate exercise of its power to regulate these
rights in the public interest relating to heads specified in
clauses (2) to (6). The six fundamental freedoms guaranteed
under Article 19 (1) are not absolute rights. Firstly, they
are subject to inherent restraints stemming from the
reciprocal obligation of one member of a civil society to so
use his rights as not to infringe or injure similar rights
of another. This is on the principle sic utere tuo ut
alienum non laedas. Secondly, under clauses (2) to (6) these
rights have been expressly made subject to the power of the
State to impose reasonable restrictions, which may even
extend to prohibition, on the exercise of those rights.
The power, if properly exercised, is itself a safeguard
of the freedoms guaranteed in clause (1). The conferment of
this power is founded on the fundamental truth that
uncontrolled liberty entirely freed from restraint,
degenerates into a licence, leading to anarchy and chaos;
that libertine pursuit of liberty, absolutely free, and free
for all, may mean liberticide for all. "Liberty has,
therefore," as Justice Patanjali Sastri put it, "to be limited in order to
be effectively possessed."
It is important to note that whereas Article 21
expressly deals with the right to life and personal liberty,
Article 19 does not. The right to life is not one of the
rights mentioned in Article 19 (1).
The first point under Question (1) to be considered is
whether Article 19 is at all applicable for judging the
validity of the impugned provision in Section 302, Penal
Code.
As rightly pointed out by Shri Soli Sorabji, the
condition precedent for the applicability of Article 19 is
that the activity which the impugned law prohibits and
penalises, must be within the purview and protection of
Article 19 (1). Thus considered, can any one say that he has
a legal right or fundamental freedom under Article 19 (1) to
practise the profession of a hired assassin or to form
associations or unions or engage in a conspiracy with the
object of committing murders or dacoities. The argument that
the provisions of the Penal Code, prescribing death sentence
as an alternative penalty for murder have to be tested on
the ground of Article 19, appears to proceed on the fallacy
that the freedoms guaranteed by Article 19 (1) are absolute
freedoms and they cannot be curtailed by law imposing
reasonable restrictions, which may amount to total
prohibition. Such an argument was advanced before the
Constitution Bench in The State of Bombay v. R.M.D.
Chamarbaugwala.(1) In that case the constitutional validity
of certain provisions of the Bombay Lotteries and Prize
Competition Control Act, 1952, as amended by Bombay Act No.
XXX of 1952, was challenged on the ground, inter alia, that
it infringes the fundamental rights of the promoters of such
competitions under Article 19 (1) (g), to carry on their
trade or business and that the restrictions imposed by the
said Act cannot possibly be supported as reasonable
restrictions in the interest of the general public
permissible under Article 19 (b). It was contended that the
words "trade" or "business" or "commerce" in sub-clause (g)
of Article 19 (a) should be read in their widest amplitude
as any activity which is undertaken or carried on with a
view to earning profit since there is nothing in Article 19
(1) (g) which may qualify or cut down the meaning of the
critical words; that there is no justification for excluding
from the meaning of those words activities which may be looked upon with
disfavour by the State or the Court as injurious to public
morality or public interest. Speaking for the Constitution
Bench, S.R. Das, C.J. repelled this contention, in these
terms:
"On this argument it will follow that criminal
activities undertaken and carried on with a view to
earning profit will be protected as fundamental rights
until they are restricted by law. Thus there will be a
guaranteed right to carry on a business of hiring out
goondas to commit assault or even murder, or house-
breaking, or selling obscene pictures, of trafficking
in women and so on until the law curbs or stops such
activities. This appears to us to be completely
unrealistic and incongruous. We have no doubt that
there are certain activities which can under no
circumstance be regarded as trade or business or
commerce although the usual forms and instruments are
employed therein. To exclude those activities from the
meaning of those words is not to cut down their meaning
at all but to say only that they are not within the
true meaning of those words."
This approach to the problem still holds the field. The
observations in Chamarbaugwala, extracted above, were
recently quoted with approval by V.R. Krishna Iyer., J.,
while delivering the judgment of the Bench in Fatehchand
Himmatlal & Ors. v. State of Maharashtra(1).
In A.K. Gopalan v. The State of Madras (2), all the six
learned Judges constituting the Bench held that punitive
detention or imprisonment awarded as punishment after
conviction for an offence under the Indian Penal Code is
outside the scope of Article 19, although this conclusion
was reached by them by adopting more or less different
approaches to the problem.
It was contended on behalf of A.K. Gopalan that since
the preventive detention order results in the detention of
the detenu in a cell, his rights specified in clauses (a) to
(e) and (g) of Article 19 (1) have been infringed.
Kania, C J. rejected this argument, inter alia, on
these grounds:
(i) Argument would have been equally applicable to a
case of punitive detention, and its acceptance
would lead to absurd results. "In spite of the
saving clauses (2) to (6), permitting abridgement
of the rights connected with each other, punitive
detention under several sections of the Penal
Code, e.g. for theft, cheating, forgery and even
ordinary assault, will be illegal, (because the
reasonable restrictions in the interest of "public
order" mentioned in clauses (2) to (4) of the
Article would not cover these offences and many
other crimes under the Penal Code which injure
specific individuals and do not affect the
community or the public at large). Unless such
conclusion necessarily follows from the article,
it is obvious that such construction should be
avoided. In my opinion, such result is clearly not
the outcome of the Constitution."
(The underlined words within brackets supplied.)
(At page 100 of the Report)
(ii) Judged by the test of direct and indirect effect
on the rights referred to in article 19 (1), the
Penal Code is not a law imposing restrictions on
these rights. The test is that "the legislation to
be examined must be directly in respect of one of
the rights mentioned in the sub-clauses. If there
is a legislation directly attempting to control a
citizen's freedom of speech or expression or his
right to assemble peaceably and without arms,
etc., the question whether that legislation is
saved by the relevant saving clause of Article 19
will arise. If, however, the legislation is not
directly in respect of any of these subjects, but
as a result of the operation of other legislation,
for instance, for punitive or preventive
detention, his right under any of these sub-
clauses is abridged, the question of the
application of Article 19 does not arise. The true
approach is only to consider the directness of the
legislation and not what will be the result of the
detention otherwise valid, on the mode of the
detenu's life." (Pages 100-101).
(iii)"The contents and subject-matter of articles 19
and 21 are thus not the same..." (Page 105).
"Article 19 (5) cannot apply to a substantive law
depriving a citizen of personal liberty." "Article
19 (1) does not purport to cover all aspects of
liberty or of personal liberty. Personal liberty
would primarily mean liberty of the physical body.
The rights given under article 19 (1) do not
directly come under that description. In that
Article only certain phases of liberty are dealt
with". (Page 106) "In my opinion therefore,
Article 19 should be read as a separate complete
Article". (Page 107).
Patanjali Sastri, J., also, opined "that lawful
deprivation of personal liberty on conviction and sentence
for committing a crime, or by a lawful order of preventive
detention is "not within the purview of Article 19 at all,
but is dealt with by the succeeding Articles 20 and 21."
(Page 192). In tune with Kania, C.J., the learned Judge
observed: "A construction which would bring within Article
19 imprisonment in punishment of a crime committed or in
prevention of a crime threatened would, as it seems to me,
make a reductio ad absurdum of that provision. If
imprisonment were to be regarded as a 'restriction' of the
right mentioned in article 19 (1) (d), it would equally be a
restriction on the rights mentioned by the other sub-clauses
of clause (1), with the result that all penal laws providing
for imprisonment as a mode of punishment would have to run
the gauntlet of clauses (2) to (6) before their validity
could be accepted. For instance, the law which imprisons for
theft would on that view, fall to be justified under clause
(2) as a law sanctioning restriction of freedom of speech
and expression." (Page 192).
"Article 19 confers the rights therein specified only
on the citizens of India, while article 21 extends the
protection of life and personal liberty to all persons
citizens and non-citizens alike. Thus, the two Articles do
not operate in a coterminous field." (Page 193).
"(Personal liberty) was used in Article 21 as a sense
which excludes the freedoms dealt in Article 19 ....."
Rejecting the argument of the Attorney General, the
learned Judge held that clauses (4) to (7) of Article 22 do
not form a complete Code and that "the language of Article 21 is perfectly
general and covers deprivation of personal liberty or
incarceration, both for punitive and preventive reasons."
(Page 207).
Mahajan, J., however, adopted a different approach. In
his judgment, "an examination of the provisions of Article
22 clearly suggests that the intention was to make it self-
contained as regards the law of preventive detention and
that the validity of a law on the subject of preventive
detention cannot be examined or controlled either by the
provisions of Article 21 or by the provisions of Article
19(5)." (Page 229).
Mukerjee, J. explained the relative scope of the
Articles in this group, thus: "To me it seems that Article
19 of the Constitution gives a list of individual liberties
and prescribes in the various clauses the restraints that
may be placed upon them by law so that they may not conflict
with public welfare or general morality. On the other hand,
Articles 20, 21 and 22 are primarily concerned with penal
enactments or other laws under which personal safety or
liberty of persons could be taken away in the interests of
the society and they set down the limits within which the
State control should be exercised. In my opinion, the group
of articles 20 to 22 embody the entire protection guaranteed
by the Constitution in relation to deprivation of life and
personal liberty both with regard to substantive as well as
to procedural law." (Page 255).
"The only proper way of avoiding these anomalies is to
interpret the two provisions (articles 19 and 21) as
applying to different subjects. It is also unnecessary to
enter into a discussion on the question...as to whether
article 22 by itself is a self-contained Code with regard to
the law of Preventive Detention." (Page 257).
S.R. Das, J., also, rejected the argument that the
whole of the Indian Penal Code is a law imposing reasonable
restriction on the rights conferred by Article 19 (1), with
these observations (at Page 303) :
"To say that every crime undermines the security
of the State and, therefore, every section of the
Indian Penal Code, irrespective of whether it has any
reference to speech or expression, is a law within the
meaning of this clause is wholly unconvincing and
betrays only a vain and forlorn
attempt to find an explanation for meeting the argument
that any conviction by a Court of law must necessarily
infringe article 19 (1) (a). There can be no getting
away from the fact that a detention as a result of a
conviction impairs the freedom of speech for beyond
what is permissible under clause (2) of article 19.
Likewise, a detention on lawful conviction impairs each
of the other personal rights mentioned in sub-clauses
(3) to (6). The argument that every section of the
Indian Penal Code irrespective of whether it has any
reference to any of the rights referred to in sub-
clauses (b) to (e) and (g) is a law imposing reasonable
restriction on those several rights has not even the
merit of plausibility. There can be no doubt that a
detention as a result of lawful conviction must
necessarily impair the fundamental personal rights
guaranteed by article 19 (1) far beyond what is
permissible under clauses (2) to (6) of that article
and yet nobody can think of questioning the validity of
the detention or of the section of the Indian Penal
Code under which the sentence was passed."
(ii) Das, J. then gave an additional reason as to why
validity of punitive detention or of the sections of
the Penal Code under which the sentence was passed,
cannot be challenged on the ground of article 19, thus
:
"Because the freedom of his person having been
lawfully taken away, the convict ceases to be entitled
to exercise .. any of the .. rights protected by clause
(1) of article 19."
(iii) The learned Judge also held that "article 19
protects some of the important attributes of personal
liberty as independent rights and the expression
'personal liberty' has been used in article 21 as a
compendious term including within its meaning all the
varieties of rights which go to make up the personal
liberties of men." (Page 299).
Fazal Ali, J. dissented from the majority. In his
opinion: "It cannot be said that articles 19, 20, 21 and 22
do not to some extent overlap each other. The case of a
person who is convicted of an offence will come under article 20 and 21 and also under article 22 so far as his arrest and detention in custody
before trial are concerned. Preventive detention, which is
dealt with in article 22, also amounts to deprivation of
personal liberty which is referred to in article 19 (1)
(d)." (Page 148).
Fazal Ali, J. held that since preventive detention,
unlike punitive detention, directly infringes the right
under Article 19(1)(d), it must pass the test of clause (5).
According to the learned Judge, only those laws are required
to be tested on the anvil of Article 19 which directly
restrict any of the rights guaranteed in Article 19(1).
Applying this test (of direct and indirect effect) to the
provisions of the Indian Penal Code, the learned Judge
pointed out that the Code "does not primarily or necessarily
impose restrictions on the freedom of movement, and it is
not correct to say that it is a law imposing restrictions on
the right to move freely. Its primary object is to punish
crime and not to restrict movement. The punishment may
consist in imprisonment or a pecuniary penalty. If it
consists in a pecuniary penalty, it obviously involves no
restriction on movement, but if it consists in imprisonment,
there is a restriction on movement. This restraint is
imposed not under a law imposing restrictions on movement
but under a law defining crime and making it punishable. The
punishment is correlated with the violation of some other
person's right and not with the right of movement possessed
by the offender himself. In my opinion, therefore, the
Indian Penal Code does not come within the ambit of the
words "law imposing restriction on the right to move
freely."
(Pages 145-146).
In applying the above test, which was the same as
adopted by Kania, C.J., Fazal Ali, J. reached a conclusion
contrary to that reached by the Chief Justice, on the
following reasoning ;
"Punitive detention is however essentially
different from preventive detention. A person is
punitively detained only after trial for committing a
crime and after his guilt has been established in a
competent court of justice. A person so convicted can
take his case to the State High Court and sometimes
bring it to this Court also; and he can in the course
of the proceedings connected with his trial take all
pleas available to him including the plea of want of
jurisdiction of the Court of trial and the invalidity
of the law under which he has been prosecuted. The final judgment
in the criminal trial will thus constitute a serious
obstacle in his way if he chooses to assert even after
his conviction that his right under article 19(1)(d)
has been violated. But a person who is preventively
detained has not to face such an obstacle whatever
other obstacle may be in his way."
(Page 146)
We have copiously extracted from the judgments in A.K.
Gopalan's case, to show that all the propositions
propounded, arguments and reasons employed or approaches
adopted by the learned Judges in that case, in reaching the
conclusion that the Indian Penal Code, particularly those of
its provisions which do not have a direct impact on the
rights conferred by Article 19(1), is not a law imposing
restrictions on those rights, have not been overruled or
rendered bad by the subsequent pronouncements of this Court
in Bank Nationalizaton(1) case or in Maneka Gandhi's case.
For instance, the proposition laid down by Kania, C.J.,
Fazal Ali, Patanjali Sastri, and S.R. Das, J.J. that the
Indian Penal Code particularly those of its provisions which
cannot be justified on the ground on reasonableness with
reference to any of the specified heads, such as "public
order" in clauses (2), (3) and (4), is not a law imposing
restrictions on any of the rights conferred by Article
19(1), still holds the field. Indeed, the reasoning,
explicit, or implicit in the judgments of Kania, C.J.,
Patanjali Sastri and S.R. Das JJ. that such a construction
which treats every section of the Indian Penal Code as a law
imposing 'restriction' on the rights in Article 19(1), will
lead to absurdity is unassailable. There are several
offences under the Penal Code, such as theft, cheating,
ordinary assault, which do not violate or effect 'public
order,' 'but only law and order'. These offences injure only
specific individuals as distinguished from the public at
large. It is by now settled that 'public order' means 'even
tempo of the life of the community.' That being so, even all
murders do not disturb or affect 'public order'. Some
murders may be of purely private significance and the injury
or harm resulting therefrom affects only specific
individuals and, consequently, such murders may not be
covered by "public order" within the contemplation of
clauses (2), (3) and (4) of article 19. Such murders do not
lead to public disorder but to disorder simpliciter. Yet, no
rational being can say
(1) [1970] 3 SCR 530.
that punishment of such murders is not in the general public
interest. It may be noted that general public interest is
not specified as a head in clauses (2) to (4) on which
restriction on the rights mentioned in clause (1) of the
Article may be justified.
It is true, as was pointed out by Hidayatullah, J. (as
he then was) in Dr. Ram Manohar Lohia's(1) case, and in
several other decisions that followed it, that the real
distinction between the areas of 'law and order' and 'public
order' lies not merely in the nature or quality of the act,
but in the degree and extent. Violent crimes similar in
nature, but committed in different contexts and
circumstances might cause different reactions. A murder
committed in given circumstances may cause only a slight
tremor, the wave length of which does not extent beyond the
parameters of law and order. Another murder committed in
different context and circumstances may unleash a tidal wave
of such intensity, gravity and magnitude, that its impact
throws out of gear the even flow of life. Nonetheless the
fact remains that for such murders which do not affect
"public order", even the provision for life imprisonment in
Section 302, Indian Penal Code, as as alternative
punishment, would not be justifiable under clauses (2), (3)
and (4) as a reasonable restriction in the interest of
'Public Order'. Such a construction must, therefore, be
avoided. Thus construed, Article 19 will be attracted only
to such laws, the provisions of which are capable of being
tested under clauses (2) to (5) of Article 19.
This proposition was recently (1975) reiterated in
Hardhan Saha & Anr. v. State of West Bengal(2). In accord
with this line of reasoning in A.K. Gopalan's case, a
Constitution Bench of this Court in Hardhan Saha's case
restated the principle for the applicability of Article 19
by drawing a distinction between a law of preventive
detention and a law providing punishment for commission of
crimes, thus :
"Constitution has conferred rights under Article
19 and also adopted preventive detention to prevent the
greater evil of elements imperilling the security, the
safety of a State and the welfare of the nation. It is
not possible to think that a person who is detained
will yet be free to move
(1) [1966] 1 S.C.R. 709.
(2) [1975] 1 S.C.R. 778 at p. 784.
183
for assemble or form association or unions or have the
right to reside in any part of India or have the
freedom of speech or expression. Suppose a person is
convicted of an offence of cheating and prosecuted (and
imprisoned) after trial, it is not open to say that the
imprisonment should be tested with reference to Article
19 for its reasonableness. A law which attracts Article
19 therefore must be such as is capable of being tested
to be reasonable under clauses (2) to 5 of Article 19."
(emphasis and parenthesis supplied.)
The last sentence which has been underlined by us,
appears to lend implicit approval to the rule of
construction adopted by the majority of the learned Judges
in A.K. Gopalan's case, whereby they excluded from the
purview of Article 19 certain provisions of the Indian Penal
Code providing punishment for certain offences which could
not be tested on the specific grounds-embodied in clauses
(2) to (5) of that Article. This proposition enunciated in
A.K. Gopalan's case is only a product of the application of
the basic canon that a construction which would lead to
absurdity, should be eschewed.
In R.C. Cooper v. Union of India (popularly known as
Bank Nationalization case), the majority adopted the two-
fold test for determining as to when a law violated
fundamental rights, namely: "(1) It is not the object of the
authority making the law impairing the right of a citizen,
nor the form of action that determines the protection he can
claim. (2) It is the effect of the law and of the action
upon the right which attract the jurisdiction of the Court
to grant relief. The direct operation of the act upon the
rights forms the real test."
In Maneka Gandhi v. Union of India (ibid), Bhagwati, J.
explained the scope of the same test by saying that a law or
and order made thereunder will be hit by article 19, if the
direct and inevitable consequence of such law or order is to
abridge or take away any one or more of the freedoms
guaranteed by Article 19(1). If the effect and operation of
the statute by itself, upon a person's fundamental rights is
remote or dependent upon "factors which may or may not come
into play", then such statute is not ultra-vires on the
ground of its being violative of that fundamental right.
Bhagwati J. described this proposition as "the doctrine of
intended and real effect" while Chandrachud, J. (as he then
was) called it "the test of proximate effect and operation
of the statute."
The question is, whether R.C. Cooper & Maneka Gandhi
have given a complete go-by to the 'test of direct and
indirect effect, sometimes described as form and object
test' or 'pith and substance rule', which was adopted by
Kania, C.J. and Fazal Ali, J. in A.K. Gopalan's case. In our
opinion, the answer to this question cannot be in the
affirmative. In the first place, there is nothing much in
the name. As Varadachariar, J. put it in Subrahmanyan
Chettiar's(1) case, such rules of interpretation were
evolved only as a matter of reasonableness and common sense
and out of the necessity of satisfactorily solving conflicts
from the inevitable overlapping of subjects in any
distribution of powers. By the same yardstick of common
sense, the 'pith and substance rule' was applied to resolve
the question of the constitutionality of a law assailed on
the ground of its being violative of a fundamental right.
Secondly, a survey of the decisions of this Court since
A.K. Gopalan, shows that the criterion of directness which
is the essence of the test of direct and indirect effect,
has never been totally abandoned. Only the mode of its
application has been modified and its scope amplified by
judicial activism to maintain its efficacy for solving new
constitutional problems in tune with evolving concepts of
rights and obligations in a strident democracy.
The test of direct and indirect effect adopted in A.K.
Gopalan was approved by the Full Court in Ram Singh v. State
of Delhi.(2) Therein, Patanjali Sastri, J. quoted with
approval the passages (i) and (ii) (which we have extracted
earlier) from the judgment of Kania, C. J. Although Mahajan
and Bose, JJ. differed on the merits, there was no dissent
on this point among all the learned Judges.
The first decision, which, though purporting to follow
Kania, C. J's. enunciation in A.K. Gopalan, imperceptibly
added another dimension to the test of directness, was
Express Newspapers (Private) Ltd. & Anr. v. The Union of
India & Ors.(3) In that case, the cons-
(1) [1940] FCR 188.
(2) [1951] SCR 451.
(3) [1959] SCR 12.
titutional validity of the Working Journalists (Conditions
of Service) and Miscellaneous Provisions Act, 1955, and the
legality of the decision of the Wage Board, constituted
thereunder, were challenged. The impugned Act, which had for
its object the regulation of the conditions of service of
working journalists and other persons employed in newspaper
establishments, provided, inter alia, for the payment of
gratuity to a working journalist who had been in continuous
service for a certain period. It also regulated hours of
work and leave and provided for retrenchment compensation.
Section 9 (1) laid down the principles that the Wage Board
was to follow in fixing the rates of wages of working
journalists.
One of the contentions of the petitioners in that case
was that impugned Act violated their fundamental rights
under Articles 19 (1) (a), 19 (1) (g), 14 and 32 of the
Constitution and that the decision of the Wage Board fixing
the rates and scales of wages which imposed too heavy a
financial burden on the industry and spelled its total ruin,
was illegal and void. It was contended by the learned
Attorney General in that case that since the impugned
legislation was not a direct legislation on the subject of
freedom of speech and expression. Art. 19 (1)(a) would have
no application, the test being not the effect or result of
legislation but its subject-matter. In support of his
contention, he relied upon the observations on this point of
Kania, C. J. in A. K. Gopalan. It was further urged that the
object of the impugned Act was only to regulate certain
conditions of service of working journalists and other
persons employed in the newspaper establishments and not to
take away or abridge the freedom of speech or expression
enjoyed by the petitioners and, therefore, the impugned Act
could not come within the prohibition of Article 19 (1) (a)
read with Article 32 of the Constitution.
On the other hand, the petitioners took their stand on
a passage in the decision of the Supreme Court of United
States in Minnesota Ex Rel. Olson,(1) which was as under :
"With respect to these contentions it is enough to
say that in passing upon constitutional questions the
Court has regard to substance and not to mere matters
of form, and that, in accordance with familiar
principles, the statute must be tested by its operation
and effect."
(1) [1930] 283 US 697 at p. 708.
It was further submitted that in all such cases, the Court
has to look behind the names, forms and appearances to
discover the true character and nature of the legislation.
Thus considered, proceeded the argument, the Act by laying a
direct and preferential burden on the press, would tend to
curtail the circulation, narrow the scope of dissemination
of information and fetter the petitioners' freedom to choose
the means of exercising their rights of free speech (which
includes the freedom of the press). It was further submitted
that those newspaper employers who were marginally situated
may not be able to bear the strain and have to disappear
after closing down their establishments.
N.H. Bhagwati, J. who delivered the unanimous Judgment
of the Constitution Bench, after noting that the object of
the impugned legislation is to provide for the amelioration
of the conditions of the workmen in the newspaper industry,
overruled this contention of the employers, thus:
"That, however would be a consequence which would
be extraneous and not within the contemplation of the
legislature. It could therefore hardly be urged that
the possible effect of the impact of these measures in
conceivable cases would vitiate the legislation as
such. All the consequences which have been visualized
in the behalf by the petitioners, viz., the tendency to
curtail circulation and thereby narrow the scope of
dissemination of information, fetters on the
petitioners' freedom to choose the means of exercising
the right, likelihood of the independence of the press
being undermined by having to seek government aid; the
imposition of penalty on the petitioners' right to
choose the instruments for exercising the freedom or
compelling them to seek alternative media, etc., would
be remote and depend upon various factors which may or
may not come into play. Unless these were the direct or
inevitable consequences of the measures enacted in the
impugned Act, it would not be possible to strike down
the legislation as having that effect and operation."
(emphasis added)
The learned Judge further observed that the impugned Act
could be "legitimately characterised as a measure which
affects the press", but its "intention or the proximate
effect and operation" was not such as would take away or
abridge the right of freedom of speech and
expression guaranteed in Article 19 (1) (a), therefore, it
could not be held invalid on that ground. The impugned
decision of the Wage Board, however, was held to be ultra
vires the Act and contrary to the principles of natural
justice.
It may be observed at this place that the manner in
which the test of direct and indirect effect was applied by
N.H. Bhagwati, J., was not very different from the mode in
which Fazal Ali, J. applied it to punitive detention as
punishment after conviction for an offence under the Indian
Penal Code. N.H. Bhagwati, J., did not discard the test
adopted by Kania, C.J., in A.K. Gopalan, in its entirety; he
merely extended the application of the criterion of
directness to the operation and effect of the impugned
legislation.
Again, in Sakal Papers (P) Ltd. & Ors. v. The Union of
India(1) this Court, while considering the constitutional
validity of the Newspaper (Price and Page) Act, 1956 and
Daily Newspaper (Price and Page) Order, 1960, held that the
"direct and immediate" effect of the impugned Order would be
to restrain a newspaper from publishing any number of pages
for carrying its news and views, which it has a fundamental
right under Article 19 (1) (a) and, therefore, the Order was
violative of the right of the newspapers guaranteed by
Article 19 (1) (a), and as such, invalid. In this case,
also, the emphasis had shifted from the object and subject-
matter of the impugned State action to its direct and
immediate effect.
In Naresh Shridhar Mirajkar & Ors. v. State of
Maharashtra & Anr.,(2) an order prohibiting the publication
of the evidence of a witness in a defamation case, passed by
a learned Judge (Tarkunde, J.) of the Bombay High Court, was
impugned on the ground that it violated the petitioners'
right to free speech and expression guaranteed by Article 19
(1) (a). Gajendragadkar, C.J., (Wanchoo, Mudholkar, Sikri
and Ramaswami, JJ., concurring) repelled this contention
with these illuminating observations:
"The argument that the impugned order affects the
fundamental rights of the petitioners under Article 19
(1), is based on a complete misconception about the
true nature and
(1) [1962] 3 SCR 842.
(2) [1966] 3 SCR 744.
character of judicial process and of judicial
decisions. When a Judge deals with matters brought
before him for his adjudication, he first decides
questions of fact on which the parties are at issue,
and then applies the relevant law to the said facts.
Whether the findings of fact recorded by the Judge are
right or wrong, and whether the conclusion of law drawn
by him suffers from any infirmity, can be considered
and decided if the party aggrieved by the decision of
the Judge takes the matter up before the appellate
Court. But it is singularly inappropriate to assume
that a judicial decision pronounced by a Judge of
competent jurisdiction in or in relation to matter
brought before him for adjudication can affect the
fundamental rights of the citizens under Article 19
(1). What the judicial decision purports to do is to
decide the controversy between the parties brought
before the court and nothing more. If this basic and
essential aspect of the judicial process is borne in
mind, it would be plain that the judicial verdict
pronounced by court in or in relation to a matter
brought before it for its decision cannot be said to
affect the fundamental rights of citizens under Article
19 (1)."
"It is well-settled that in examining the validity of
legislation, it is legitimate to consider whether the
impugned legislation is a legislation directly in respect of
the subject covered by any particular article of the
Constitution, or touches the said article only incidentally
or indirectly'.'
"If the test of direct effect and object which is
sometimes described as the pith and substance test, is thus
applied in considering the validity of legislation, it would
not be inappropriate to apply the same test to judicial
decisions like the one with which we are concerned in the
present proceedings. As we have already indicated, the
impugned order was directly concerned with giving such
protection to the witness as was thought to be necessary in
order to obtain true evidence in the case with a view to do
justice between the parties. If, incidentally, as a result
of this-order, the petitioners were not able to report what
they heard in court, that cannot be said to make the
impugned order invalid under Article 19 (1) (a)."
We have already mentioned briefly how the test of
directness was developed and reached its culmination in Bank
Nationalization's case and Maneka Gandhi's case.
From the above conspectus, it is clear that the test of
direct and indirect effect was not scrapped. Indeed, there
is no dispute that the test of 'pith and substance' of the
subject-matter and of direct and of incidental effect of
legislation is a very useful test to determine the question
of legislative competence i.e., in ascertaining whether an
Act falls under one Entry while incidentally encroaching
upon another Entry. Even for determining the validity of a
legislation on the ground of infringement of fundamental
rights, the subject-matter and the object of the legislation
are not altogether irrelevant. For instance, if the subject-
matter of the legilation directly covers any of the
fundamental freedoms mentioned in Article 19 (1), it must
pass the test of reasonableness under the relevant head in
clauses (2) to (6) of that Article. If the legislation does
not directly deal with any of the rights in Article 19 (1),
that may not conclude the enquiry. It will have to be
ascertained further whether by its direct and immediate
operation, the impugned legislation abridges any of the
rights enumerated in Article 19 (1).
In Bennett Coleman,(1) Mathew, J. in his dissenting
judgment referred with approval to the test as expounded in
Express Newspapers. He further observed that "the 'pith and
substance' test, though not strictly appropriate, must serve
a useful purpose in the process of deciding whether the
provisions in question which work some interference with the
freedom of speech, are essentially regulatory in character".
From a survey of the cases noticed above, a
comprehensive test which can be formulated, may be re-
stated as under:
Does the impugned law, in its pith and substance,
whatever may be its form and object, deal with any of
the fundamental rights conferred by Article 19 (1)? If
it does, does it abridge or abrogate any of those
rights? And even if it does not, in its pith and
substance, deal with any of the fundamental rights
conferred by Article 19(1), is the
Direct and inevitable effect of the impugned law such
as to abridge or abrogate any of those rights?
The mere fact that the impugned law incidentally, remotely
or collaterally has the effect of abridging or abrogating
those rights, will not satisfy the test. If the answer to
the above queries be in the affirmative, the impugned law in
order to be valid, must pass the test of reasonableness
under Article 19. But if the impact of the law on any of the
rights under clause (1) of Article 19 is merely incidental,
indirect, remote or collateral and is dependent upon factors
which may or may not come into play, the anvil of Article 19
will not be available for judging its validity.
(FOR FULL TEXT OF THE JUDGEMENT SEE THE ATTACHED FILE)