# [1984] 1 S.C.R. 1 - **Citation:** [1984] 1 S.C.R. 1 - **Court:** Supreme Court of India - **Decided:** 1983-09-23 - **Case number:** Criminal Appeal No. 1357/82. 565. AND Writ Petition. Nos. 286, 345-48, 428, 429 of 1983 - **Bench:** Y.V. Chandrachud, R. s. PATHAK, Sabyasachi Mukharji - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1984-1-s-c-r-1-8432 - **Pages:** 63 ## Headnote Code of Criminal Procedure, 1973-S. {54(5)-Exbition of death sentence-Hanging by rope-Whether violative of Art. 21 ? Constitution of India, 1950-Art. 21-Execution of sentences lawfully imposed-Mandate of Art. 21 is that sentence shall not be executed in a cruel, barbarous or degradini manner. Constitution of India, 1950-Art. 21-Burden of proof-lf it ap/;ears that a person is beingdperived of his life or personal liberty, the burden is on the State to establish the constitutional validity of ilnpugned iaw. Judicial Review-To pronounce upon constitutionality of law· is not legislating even if su:ecuting the death sentence is barbarous, inhumt_1.n and degrading; that it is the constitutional obligation of the State to provide for a humane and dignified method for executing the death sentence. which does not involve torture of .iny kind; and that if the method ~rescrib7d by s. 354(5) 'does not meet this requirement, no death sentence can be executed since no other method for executing that sentencd is prescribed by or is permissible under the law. Counsel also referred to the judgment in Machhl Singh v. State of Punjab, [1983] 3 S.C.C. 470 and suggested that it virtually overrules Bachan Singh. I A B c D E G B A B c D '. F G H 2 SUPREME COURT REPORTS ( 1984) I s.c.Ji. • Counsel for respondents conteflded that a sentenee lawfully imposed by a court can and has to be ~xecuted, though by cau~ing the ieast pain and suffering and by avoiding torture or degradation of any kind; that the method prescribed bys. 354(5), Cr. P.C. for executing the death sentence is a humane and dignified method involving the least amoUnt of pain and cruelty; that no other method of executing 'the death sentence· is quiCker o'r less painful; and that Art. 21 does not postulate that no pain-- or suffering whatsover shall be caused in the execution_of a sentence Ia:-vfully imposed by a court, inciuding the sentence of death. Courisel further submitted that ullless on the face of it, the meth_od prescribed by for executing law a sentence is revolting to conscience, courts must surrender their discretion to legislative judgment when the challenge to the constitutionality of the law is based on consider.ltions which the court is not equipped to evaluate by manageable judicial standards, and contended ,that the court's evaluation of the method of hanging prescribed. by law shall have to be inevitably subjective, almost to the point "Of being legislative in charcter. which.must be avoided at aJI costs. Dismis~ing th~ petitions, . . ,, HELD: l. The·method prescribed bys. 354(5), Cr. P.C. for executing the ·death sentence does not violate the provision contaiiied in Art. 21 of the Constitution. [59 El (a) The material placed before the Court shows that hanging by rope ·•is not a cruel inode of executing the death sentence : the system consists of a mechanism which is easy to as~emble ; preliminaries to the act are qujck and simple and are free from anything th~t would u ## Text _Characters 0–39,931 of 157,855. This is a partial read: ask again with offset=39931 for what follows._ .. > ,, > DEENA@DEEN DAYAL ETC. ETC. v •. UNION OF INDIA AND OTHERS September 23, 1983 [Y.V. CHANDRACHUD, C.J., R. s. PATHAK AND SABYASACHI MUKHARJI, JJ.] Code of Criminal Procedure, 1973-S. {54(5)-Exbition of death sentence-Hanging by rope-Whether violative of Art. 21 ? Constitution of India, 1950-Art. 21-Execution of sentences lawfully imposed-Mandate of Art. 21 is that sentence shall not be executed in a cruel, barbarous or degradini manner. Constitution of India, 1950-Art. 21-Burden of proof-lf it ap/;ears that a person is beingdperived of his life or personal liberty, the burden is on the State to establish the constitutional validity of ilnpugned iaw. Judicial Review-To pronounce upon constitutionality of law· is not legislating even if su:ecuting the death sentence is barbarous, inhumt_1.n and degrading; that it is the constitutional obligation of the State to provide for a humane and dignified method for executing the death sentence. which does not involve torture of .iny kind; and that if the method ~rescrib7d by s. 354(5) 'does not meet this requirement, no death sentence can be executed since no other method for executing that sentencd is prescribed by or is permissible under the law. Counsel also referred to the judgment in Machhl Singh v. State of Punjab, [1983] 3 S.C.C. 470 and suggested that it virtually overrules Bachan Singh. I A B c D E G B A B c D '. F G H 2 SUPREME COURT REPORTS ( 1984) I s.c.Ji. • Counsel for respondents conteflded that a sentenee lawfully imposed by a court can and has to be ~xecuted, though by cau~ing the ieast pain and suffering and by avoiding torture or degradation of any kind; that the method prescribed bys. 354(5), Cr. P.C. for executing the death sentence is a humane and dignified method involving the least amoUnt of pain and cruelty; that no other method of executing 'the death sentence· is quiCker o'r less painful; and that Art. 21 does not postulate that no pain-- or suffering whatsover shall be caused in the execution_of a sentence Ia:-vfully imposed by a court, inciuding the sentence of death. Courisel further submitted that ullless on the face of it, the meth_od prescribed by for executing law a sentence is revolting to conscience, courts must surrender their discretion to legislative judgment when the challenge to the constitutionality of the law is based on consider.ltions which the court is not equipped to evaluate by manageable judicial standards, and contended ,that the court's evaluation of the method of hanging prescribed. by law shall have to be inevitably subjective, almost to the point "Of being legislative in charcter. which.must be avoided at aJI costs. Dismis~ing th~ petitions, . . ,, HELD: l. The·method prescribed bys. 354(5), Cr. P.C. for executing the ·death sentence does not violate the provision contaiiied in Art. 21 of the Constitution. [59 El (a) The material placed before the Court shows that hanging by rope ·•is not a cruel inode of executing the death sentence : the system consists of a mechanism which is easy to as~emble ; preliminaries to the act are qujck and simple and are free from anything th~t would un,necessarily sharpen the poignancy of the prisoner's apprehension ; the chances of accident during the course of hanging can safely be excluded ; tti.e 1nethod is quick and certain and eliminates the possibility of a lingering death; unconsciousness supervenes almost instantaneously after the process is set in motion and death follows as a result of dislocation of the cervical vertebra:e. The system of hanging, as now used, aVoids to the' full extent th~ -chances of strangulation which results on account dr too short a drop or of decapHatioll which results on account of too lOng a drop. The mechanics of .the method of hanging have undergone significant improvemi:rlt over the years and hanging has been almost perfected into a science. The system iS"'conslstent with 1the obligation of the State to ensure that the process of executiori is con'ducted with decency and decorum without involving degra-;1.ation or brutality of any kind. At the moment of fin~l impact when life becomes extinct, some physical pain would be implicit in the very Process of the ebbing out of lif~. But, the act of _hanging causes the least pa1n imaginable on account of the fact that death supervenes instantaneously. The coD.clUsion that the system of hanging is as painless as is possible in the .circumstaiices, that it causes no greater pain than any other known method of executing the death sentence and that it involves\ no _barbarity, torture or degradation ·is based on reason, supported by expert evidence and the findings of modern medicine. [58 C-H, 59 A] Repqrt of the Royal Commission on Capital Punishment (U:R..), September, '1953; 35th Report" of the LAw Comn1ission of India on Capital PunishmC'nt, ' . ,( , ' v. " {.: 1 l ;. _,. .,.,_ > •·. ) DEENA V. UNION 3 Sepember ~O. 1967; George R. Scott: Hanging Through t~e. Ages (Torc~str~a,m Books, London); J ~V. Cecil Turner (Ed.). Kenny•s f)utlines of Criin{na! L~W, A 19th Ed., 1966; Harry Eln1er BarneS and Negley K. Teeters: New Horizons 'in Criminology, 3rd Ed., 1966; C!.N. Deparin1ent of Economic , and Sor:i~I A.Jill/rs : Capital Punishment, (New York, 1962); and Bachan Singh, [1983] I S.C.li:. J4S referred to. ~. (b) On the question 9f pain involved in a-punishment, thci concern of law has to be to ensure that .the various steps .which are attendent upon or incidental to the execution of any senience, more so the death sentence, do not constitute punishments by themselves. Humaneness is the hall-mark of -civilized Ja\vs. ]fa prisoner is sentenced to death. it is lawful to execut~. that punishment and that only. He· cannot be subjected to barbarity, humil"i~tion. torture or degradation before the e'xecution of that sentence, not ev:en as necessary steps in the execution of that sentence. The process 9f· :ti3nSins: does not inv_olve any of these direc~Iy, indirectly or incidentally. l5.9 ·~-J;>l. (c) Hanging by rope was the only method of executing the death sentence which was known to the Constituent Assembly and y~t it did not express any disapproval of that method, though it touched upon the ques~ion of death sentence while dealing with the President's power of pardon undet ·Art. 72(l)(c) of the Constitution. [58 BJ' . . ' \ ~---- (d) The system of hanging by rope -is. in operation in large parts of the civilized world and there is a responsible body of scientific and legal opinion which holds that hanging by rope is Dot a cruel mode of executing the n c D death sentence. 57 H, SB A] E (e) Hanging as a mode of execution is not relentless in its severity. Judges ought not to ;lssume that they are endowed with a divine insight into the needs of a society; they should heed the warning that, as history amply proves, the judiciary is prone to nlisconceive the public gOod by confoundin& prjvate notions with constitutional requirements. [62 G~H:, 63 A] ' , (f) The <;ourt is n6t required to determine the merits and d~rμ.erits _of the alternative methods of- execution which are in vogue elsewhere because the Court cannot substitute any other method of exec.ution f0~ th~ methOd prescribed by law. However, an understanding of the process invo)ved_in, t}:le competing ·methods used for executing the death sentence is not altogether , pointless because if some other method has a real and definite advantage over the met ho~ of hanging, arbitrary rejection of that method by the. State may not answer the constitutional prescription. However, neither electrocution, QOr lethal" gas,· nor shooting, nor ev~n the lethal ,injection has any distinc~ or demonstrable advantage over the system of hanging. The general belief that death by electrocution is entirely painless is not fr_ee.from doubt. That apart,, · failure of electrical energy supplied by commercial undertakings has be.en considered ·in America as an impediment in the use of the electric chair. With frequent failures of electric power in our country, the electri(! chair will bec9me an instrument of torture. Lethal injection.is by and large an unttjed F G 'H ·A ·~ c -D :·G H SUPREME COURT REPORTS [1984] 1 S.C.R. method. The injection is required to be administered intravenously which is a delicate . and skilled operation. The Royal Commission on Capital Punishment (U.K.) was not satisfied that executions carried out by the . ·administration of lethal injections would bring about_ death more qlltckly, painlessly and decently in all cases. Shooting by a firi1:Jg squad, apart ftorn being unreliable, is an u'nCiviHsed method of extinguishing life. It is the favourite pastime of military regimes which trample upon human .rights with impunity. It is most reck~essly and wantonly used for liquidating opposition and smothering dissent in countries which do not respect the rule of law. Murders by shooting are becoming a serious menace to law and order. in our country. Shooting by the State in order to kill for executing the order -.of a court will unwittingly confer respectability on the 'shooting to kill' tactics which are alarmingly growing in proportion, The suggestion that a deathconvict may be put to sleep by a sleep-inducing injection before applyiog other methods such as electrocution or gas chamber, is not only impracticable but Would appear to involve coffip1ications and torture to an uncommon degree. [50 F·H, 57 E, 53 F, 54 n, 56 c, F, 55 G-H, 56 A-B, 56 G, 57 A) (g) Matters of policy are certainly for the_ legislature to consider and therefore, by what mode or method the death sentence should be executed, is .. fOr th'e legislature to d'ecide. But the function of the legislature ends with providing what it co~siders to be the best method of executing the death sentence. Where the function of the legislature !!nds, the function of the judiCiiir)l' begins. It is for the courts to decide upon the constitutionality of the method prescribed by the legislature for implen1enting or executing a sentence. -Whether that method conforms to the dictrtes Of the constitution is a matter not o'nly subject to judicial review but it constitutes a legitimate pa.rt of the judicial function. The question whether the particular method prescribed by law for eXccuting the death sentence is in consonance with the Constitution inevitably involves' a value judgment based upon a comparative evaluation of ;lternate methods for executing the. death sentence. But mOre than any such· comparative evaluation, the court's plain and primary duty is to examine whe· 'th.er, 'Cven if the method selected by the legislature is the least objectiOnable, it is still Open tq the objeCtion that it involves under torture, degradation or cruelty. The Court's task will end with pointing out why, if at all, the method at preseflt p'rovided by law is contrary to the mandate of the constitution. 'f~ pro!J.ounce upon the constitutionality of the law is not legislating, even if such prOnouncement involves the consideration of the evolving standards of the sockty. [35 A-C; E-FJ 2. (a) The contention that it is lnhun1an to kill under any circumstances and that Art. 21 imposes a total prohibition on the taking of human life has to be rejected. If the argument were to be accepted, the imposition of death sentence would bec~rne an e~ercise in futility. Indeed, if carried to its logical conclusion, the argument will make it ·impossible to execute any sentence whatsoever, particularly of i1nprisonment because of. every sentence of imprisonment necessarlly involves pain and suffering to a lesser or greater degree. A cOnstitution so carefully conceived as ours cannot be construed to ·produce suc;:h a st~rtling: result. Painl~ss punishment is a contradiction in ' ·\ • r • . ) > > DEENA v. UNION teri:nS. if it is ]awful to impose the sentence of death in appropriate cases. it would be lawful to execute that- sentence in an appropriate manner. .'.:fh• mandate of Art. 21 is not that the death sentence shall not be executed but that it shall not, be executed in a cruel, barbarous or degrading manner. When the sentence of death is constitutionally valid, not even the sophisticated sensitivities can justly demand th it those upon whon1, the extreme penalty of law is imposed because of the magnitude of their crime should not be mide to suffer the execution of that sentence, u~acco'mpanied b:Y torture or degradation of any kind. If the larger interests of the community as opposed to . .ihe interests of an individual require that a death sentence should be imposed in an exceptional class of cases, the san1e societal interests ·would justify the 1 execution of that sentence, though in strict conformity with the requirement! of Art. 21. [59 G, 60 C-D, 59 H, 60B F-G] (b) The argument that either death sentence is barbarous Or that •the method of hanging is cruel, ·inhuman or degrading cannot draw any sustenance from the Eighth Amendment Clause of the U.S. Constitution. The American Supreme Court has formulated a sophisticated definition of that clause which has a dynamic content Several concurring opinions show that, in America, capital punishment is not considered to be violative of the Eighth Amendment . What the Eighth Amendment prohibits is' 'something inhuman ~nd barbarous and something more than the mere extinguishment of life'', . Tf.e suffering necessarily invoJoved in the execution of death sentence is not banned by th!= Eighth Amend1neol though the cruel form of execution is. [62 F-G, 61 F, 62 D-EJ Kem1nler, 136 U.S. 436; O'Neil v. Vermont, 144 U,S. 323; Trop v. Dulle!, D 356 U.S. 86; and Louisiana v. Resweber, 329 U.S. 459; referred to. ··E 3. (a) There his to be finality to litigation, criminal as well as civil, if law is not to lose its credibility. No one of course 5an question that law is a dynamic science, the social utility of which consists in "its ability to keep abreast of the em~rging trends in social and scientific advance and its willin~ ness 'to readjust its postulates in order to accommodate those trends. But, that is not to say that judgments rendered by this Court. after a full debate should be rebonsidered every now' and then and their· authority doubted or diluted. That would be doing disservice ~o ~w sin~e certainty over a reasonably foreseeabfe period is the hall-mark of law. [ll F~J The question that, in.the circumstances mentioned in Bachan Singh, it ,is permissible to impose the sentenCe of death for the offence of murder must h• treated as concluded and not any longer open to argument.~ In Machhi Singh, , the learned Judges have hut formulated broad guidelines fo assist the Courts in deciding the vexed question as to whether the death sentence is at all ca~led for. Evidently. the judgment does not enlarge the scope of the rule in Bach(ln Singh by broa:dening·the narrow field of cases which call for the death sentence. The constraints of Bachan Singh deserve to be preserved but that means that it is only a rare degree of malevolence which invites and justifies the imposition of death sentence. [11 B-D] .G B ·-c 'li SUPREME CoUR'r Ji.EPORTs . it984l i s.c.Ii.. Bachan Singh v. State of Punjab [1983] 1 S.C.R. 145; and Mach/ii Singh - v; State of Punjab, [1983]; 3 S.C.C. 470 referred to . . (b)"Both the majority and the n1inority in Bachan Singh considered the Q.uestion of the validity of the death sentence from the procedural aspect also, Whh special reference to the method of hanging prescribed by law for executing the death sentence. Nevertheless, the ·question whether the particular mode : of executing the death sentence prescribed by sec. 354(5) Cr. P.C., violates the provisions of Art. 21 of the Cl?nstitution was not directly and siJbstantcially in issue in Bachan Singh and it was not considered specifically by the m3jority as an independent issue. : It would not~ be proper to sidetrack that the question 3.nd "refuse' to examine it fully becaus~ of the incidental consideration which it. received in Bachan Singh. [14 D, H, 15 C·D] (c) The retribution involved in the theory 'tooth for tooth' a,nd 'an eye for 0eye' has no place in the scheme of civilized jurisprudence and the co.urt cannot turn a deaf ear to the petitioners' cl~im for justice on the ground that the ·enormity of their crimes has resulted in grave injustice to the victims of those crin1es. The c·ourt is concerned to ensure due compliance with constitutional mandates,·no matter the occasion. Justic~ has to be done disP3.ssionateiy in accordance with the constitutional attitudes whether it is a ;murCierer'or a smuggler wlio ~sks for it. Law cannot demand its pound of flesh. [16 E-GJ · Per Chandrachud, c:J. and -Pathak, J. (Sabyasachi Mukharji, J. reserving his opinion on the point) .. E ~ G 4. In cases arising under Art. 21 of the Constftution, if it appears that a person ls beiOg depdved of his life .'Or has been deprived of his Personal liberty, the burden rests on the State to establish the constitutional -validity -of the impugned law. [32 F] There is a fundamental distinction between cases ar1s1ng under. Art. 14 · 8nd those which arise und~r Arts. 19 and 21. Jn the generality of cases under 'Art. 14, the challenge is ba·sed on the allegation that the in1Pugned provision is 'discriminatory since it singles out the petitioner for hostile treatment from amongst persons who, being situatid similarly, belong to the same class as· the petitioner and the petitioner has to plead and prove that there are others who are ·situated sinlilarly as him and that he is singled out and subjected to · unfavourable ·treatment. Whether there are other persons who are situated ···Sirllitarly··aS the petitioner and whether he is subjected to hostile discrimination 1 arc ·questions of fact and ·the burden to establish the existence of these facts tests· on the petitioner. In a challenge based on the violation- of Art. 19 or ··Art:-21 the petitioner has undoubtedly to· plead that, for example his right tO free.speech and expression is violated or that he is deprived of hi~ right to , life·or personal liberty. But once he Shows that, which really is not a part of the ·burden of proof, it is for the State to justify the impugned law or action by proving that, fot example, the deprivatiOn of the petitioner•s right to free speech and expression is saVed by cl. (:i) _Or Art. 19 since it is in the " ' • .. • • DBENA v. tiNION Dature of a reasonable restriction on that ·right in the interests of matters mentioned in cl. (2), or that, the petitioner has been deprived of his life or personal liberty according to a just, fair and reasonable procedure established, by law. In cases arising under Art. 19, the burden is never on the petitioner to prove that the restriction is not reasonable or that the. restric~ tion is not in the interests of matt.ers mentioned in cl. (2). 'Likewise, in cases arising under· Art. 21, the burden is never on the petitioner to prove that the procedure prescribed by raw Which deprives him of his life or perSonal liberty is unjust, unfair or unreasonable. As soon as it is shown that the Act invades a right gaaran1teed by Art. 21 it is necessary to inquire whether the State has proved that the person has been deprived of his life or personal liberty according\to procedure established by law, that is to saY by ·a procedure which is first, fair and reasonable. [23 D·H] Any case, even a locus classicus is an authority for what it decides. It is permisuible to extend the ratio of a deci~ion to cases involving identical situations; factual and legal, but care must be take~ tO see that this is not done mechanically, that is without a close examination of the rational of the decision which is cited as a precedent. Human mind, trained even in the strict discipline of law, is not averse to taking the easy course of relying on decisions which have become famous and applying their ratio to supposedly idnetical situations. [21 G·H] Saghir Ahmed v. State of U.P., [1955] l S.C.R. 707; Khyerbari Tea Co, v. Slate of Assam, [1964] 5 S.C.R. 975; Western U.P. Electric Powef & Supply Co. Ltd. v. State ofU.P., [1969] 3 S.C.R: 865; Mohd. Faruk v. State of M.P., (1970] J S.C.R. 156; Laxmi Khandsari v. State of U.P., [1981] 3 S.C.R. 92; and A B c D Bachan Singh v. State of Punjab,,[!983] I S.C.R. 145; referred to. E ' Ram Krishna Dalmia v. Justice S.R .. Tendolkar, [1959] S.C.R, 279; M),hd, HaniJ Quareshi v. State of Bihar; tl959] S.C.R. 629; Madhu Limaye v. Sub· Divisional Magistrate, (19711 2 S.C.R. 711; and Pa1hu1nma v. State of Kera/a, [1978] 2 S.C.R. 547; explained and distinguished . B Baneriji v. Anita Pan, [1975] 2 S.C.R. ·114; decided per incurium. Jn the instant case the impugned statute, on the face of it, provides for a procedure for extinguishing life. Therefore, not even th·e initial obligation to show the fact of dep;ivatiori of life or liberty rests on the petiti.oners. The State mu~t establish that the procedure prescribed by s. 354(5), Cr .. P. C. for executing the death sentence is just, fair and reasonable. [33 A-Bl Per Sabyasachi M.ukharji, J . <.· As soon as it is shown that a Statute or Act in question invades a right guaranteed by Art. 21, it is necessary to enquire whether the State has proved that the prisoner has been depriv~d of his life or personal liberty according to procedure established by law. However, at present I would not express mY .F ,G A B c D E F G H SUPREME COURT REPORTS [i984J 1 s.cJL opinion whether in all such cases, the State has a fufther initial burden -to prove that procedure established by law isjust, fair and reasonable. [63 E-~] -~ ' ORIGINAL JURISDICTION: Writ' Petitions Nos. 503, 516, 532,, 1 534, 535, 537, 538-39, 541-42, 543-45, '553, 554, 555, 565, 574, 586, J. 556-57, 592-94, 604-06, 676, 600, 533, 1414 and 1423 of 1983. (Under article 32 of the Constifotion of India) WITH Special Leave Petition (Criminal) No. 196 of 1983. . Froin the Jndgment and Order dated the 6th December_, 1982 of the Allahabad High Court in Criminal Appeal No. 1357/82. 565. AND Writ Petition. Nos. 286, 345-48, 428, 429 of 1983. • (Under article 32 of the constitution @f India) . Advocates For The Petitioners N.M. Ghatate and Mr. S. V. Deshpande - in WP. 503. 1 R.G. Kohli, A.G.-:- in WPs. 5\6 and 586. R.K. Garg, R. Sathish· and V.K. Pandita, -: in WPs, 534 and · A.N. Bardaiyar and B.B. Sinha - in WP. 535. A.K. Srivastava, A.G. - in WP. 537, O.P. Verma '-- in WPs. 538-539. Mrs. K. Hingarani - in WPs. 541-42. · B.S. Varshney and G.L. Sahu - in WPs. 543-45. L.K. Gupta - in WP. 553. Raju Ramachandran - in WP. 555. .. -~\ >· .. a. I ' \ \ • • \ / 600. bEilNA v. UNION · Miss Kai/ash Mehta and Mrs. Naresh Bakshi - in WPs. 5652 Arun Madan, A.C. - in WPs. 556·557. V.D. Khanna - in WPs. 604-06. S.N. Mehta, A.C. - in WP. 676. Anil Kumar Gupta and Brij Bhushan - in WP. 533. D.K. Garg - in .WP. 1414, 1697-98 and 286. Aruneshwar Gupta in -,- WP. 1423. S.K. Mehta, P.N. Puri and M.K. Dua - in S.L.P. No. 196/83. Solmon Khutshid and L.R. Singh - in WPs. 345-48. Miss Lalita Kohli, A.C. - in WP. 429. Petitioner in Person - in WP. 532. Nemo in WPs. WPs. 534, 574, 529-94 and 428. Advocates For the Respondents : 1 K. Parasaran Soliciter General, for State of Maharashtra and U.O.I. K.G. Bhagat Additional Soliciter General, N.C. Talukdar, Anil Dev. Singh, C. V. Subba Rao and. Miss A. Subhashini M.N. Shorff for State of Maharashtra. A. V. Rangam for State of Tamil Nadu. Swaraj Kaushal for State of Karnatka. Harbans Singh and D.D. Sharma for State of Punjab. R.N. Poddar for State of Haryana. Da/veer Bhandari for State of U.P. B.B. Singh for State of Bihar. A B c D E F G H A B c D E G H r 'to . SUPRllME COURT REPORTS · iI984l i s.c.R. . Ram Jethmalani for State of Karnatka and for interveners. Miss Rani Jethmalani iind Shrikant Bhat, in WP. Nos. 532, 534 and 535 of 1983. Chandrakant Lecturer in the Department of Forensic Medicine, · Aii India Institute of Medical Sciences, intervenor-in person iri WP. No .. 503. . The Judgment of the Court ,wa·s deliver:d by CHANDARCHUD, C.J. : . In this batch of Writ Petitions, the petitioners were sentenced to death for the offence of murder under section 302 of the Penal Code. They have nothing in common . except that they committed murders and have been sentenced to death. The sentence-of.death imp~sed u.pon them' has become final in the sense that the Special .Leave Petitions, Appeals, Review Petitions and Mercy Petitions filed by them have been dismissed, some of these more than once: The.main question which has been.raised by the petitioners in these writ petitions relates to the validity of the mode of execution of the death sentence. \ Section 354(5) of the Code of Criminal Procedure provides that: ' When any pers~n is sentenced to death, the -sentence shall° direct that he be hanged J;>y the neck till he is dead. The petitioners challenge the constitutional validity of this provmon on the ground that hanging a convict by rope is a cruel and barbarous metho.d of executing a death sentence, which is violative of Article 21 of the Constitution That article provides that : No person shall be deprived of his life or personal liberty except according to procedure established by law. The validity of death sentence which Section 302 prescribes for the offence of murder was upheld by this Court in Bachan Singh.(') (1) [19831 1 S.C.R. 145: ( \ . -nEENA v. UNION (Chandrachud,C.J.) Ii The ratio of that decision is that the normal sentence for murder iS .)ife impr.isonment and that the sentence of death can be. imposed in a very iexceptional class of cases, described in that judgment as the 'rarest of rare cases'. Which kind of cases would precisely fall within that category is in the very nature of things difficult to define and even to describe. Bu~, all the same, a . studied attempt was made by this Court in Machhi Singh( 1) to identify, though not to· crystalize, the area of those rarest of rare cases in which death sentence can justifiably be ·imposed. Shri Garg's criticism of that judg" J)'.1ent that it virtually overrules Bachan Singh and' Jagmohan Singh(') is wide off the mark. In Machhi Singh, the learhed J~dges have but , formulated. broad guidelines to assist the Courts in deciding the vexed question as to whether the death sente.nce is at all called for. Evidently, the judgment does not enlarge the scope of the rule in Bachan Singh by broadening the narrow field of cases which call for the death sentence. · · But, Machhi Singh is by the way. · The validity of the death sentence for the offence of murder having b.een upheld by this· Collrt after a careful and prolonged discussion, there is no . justification for reopening that question, though such a suggestion ,was made half-heartedly before us, towards the conclusiqn of the arguments. 'The question that, in the .circumstances mentioned in Bachan Si11gh, . it is permissible to impose the sentence of death must be treated . as .concluded and not.any longer open to argument. There has to be, finality to litigation, criminal as much as civil, if law is not to lose its _credibility. No one .of course can question that law is a dynamic science, the social utility of which consists in its ability to keep abrea.st of the emerging trends in soda! and scientific advance and its willingness to readjust its ·postulates in order to accommodate those trends. Life is not static. The purpose of law is to serve the needs of life. Therefore law cannot be static. But, that is not to s1y th>t J udgme»ts rendered by this Court .after a full debate should be reconsidered every now and then· their authority doubted or diluted. That would be doing disservice to law since certainty over a reasonably foreseeable period is the hallmark of law. The learned Solicitor General · has. raised a preliminary objection to these Writ Petitions on .. the ground that the question. (I) [1983] 3 S.C.C. 470. (2) [1973] 2 S.C.R. 541. B c D E F G H A B c D E, F G H 12 ' SUPREME coiill.T REI'ORTS (1984) l s.c.R. 'which is sought to be argued by the petitioners is concluded by the judgmeut rendered by a Constitution Bench of this Court in Bachan Singh. It is tirged that since the question is not res integra, it is not open to the petitioners to raise it, nor· indeed. any reason. or justification for this.Court to eutertain it. Learned counsel for the petitioners, led by Shri R.K. Garg, answer this objection by contending that the only question which arose in Bachan Singh was whether it is constitutionally permissible to prescribe the sentence of death. · It is urged on behalf of the petitioners that the question as regards the validity of sec)ion 354(5) of the Code of Criminal Procedure .was neither argued in Bachan Singh n.or considered by the Court. The objection taken by the learned Solicitor General is not 'without substance but for reasons which we will presently indicate, we do not propose to accept it. At page . 196 of the Report in· Bachan Singh,(') the main arguments of the 'Abolitionists' which were, "substantially adopted" by counsel for the petitioners therein are reproduced in clauses (a) (b) and (c). Under Clause (c), the argument is reproduced thus : "Exe,cution by whatever means and for whatever offence is cruel, inhman and degrading punishment", by which is obviously meant 'execution of death sentence'. The argument mentioned in clause (a) to the effect that the death penalty is unconstitutiOnal because it is irreversible is considered at pages 196 and 197 of the Report. The arugment mentioned in clause (b) as to whether death penalty serves any penological purpose at all is considered at page 197. Though the arugments mentioned in clauses (a) and (b) at page 196 of the Report have been specifically considered under separate heads as stated above, the argument mentioned in clause (c) at page 196 relating to the execution of death sentence has not been considered under a separate head. The discussion of the, argument whether death penalty serves any penological purpose, is concluded at the end of the third line on page 222. Th~ heading "Regarding (c)" should have appeared in the Report after the said third line and before the fresh paragraph which beings thus : "We will· now consider the issue whether the impugned limb of the provision.in section 302, Penal Code, contravenes Article 21 of the Constitution". That this should have been •o is clear from the fact ·that after considering the particular argument at pages 222 and 223, Justice Sarkaria who spoke for the majority concludes : 'I • > DEENA v. UNION (Chandrachud, C.J.) "Under the successive Criminal Procedure Code which have been in force for about 100 years, a sentence of death is to be carried out by hanging. In view of the , afore'said constitutional postulates, by no stretch of imagination can it be said that the death penalty under Section 302; Penal Code, either per se or because of its execution by hanging, constitutes an unreasonable, cruel or unusual punishment. By reason of the same constitutional postulates, it cannot be said that the framers of the Constitutiou considered death sentence for murder or the prescribed traditional mode of its execution as. a degrading punishment which Would defile ''the dignity of the individual" within the contemplation of the Preamble to the Constitution". Bhagwati, J., who dissented from the majority considerded the question of the constitutional validity of the death. sentence, both from the substantive and the procedural points of view. At page 286, the learned Judge says that "the worst time for most of the condemned prisoners would be the last few hours when all certainty is gone and the moment of death is known", After extracting quotation from Dostoyevsky and Canns which bear upon the execution of death sentence, the learned Judge observes : "There can be no stronger words to describe the ·utter depravity and i.nhumanity of death sentence". After making this observation Bhagwati, J., proceeds ' thus : · "The physical pain and suffering which the execution of the sentence of death involves is also no le$s cruel and inhuman. In India, the method of execution followed is haQging by the rope. Electrocution or application of lethal gas has not yet taken its place as in some of the western countries. It is therefore with reference to execution by hanging that I must consider whether the sentence of death is barbaric and inhuman as entailing physical pain and agony. It is no doubt true that the ·Royal Commission on Capital Punishment 1949-53 found that hanging is the most humane method of execution and so also in Ichikawa v. Japan, the Japanese Supreme Court held that execution by 'hanging does not correspond to ·cruel punishment' inhibited by Article 36 of the Japanese Coi;istitution. But whether amongst all the ' B c D E F G ,H ' A B c 0 E / 14 SUPREME COURT REPORTS (1984) 1 S.C.R. methods of execution, hanging is the most humane or in view of the Japanese Supreme~Court, hanaging is not cruel punishment within the menaing of Article 36, one 'thing is clear that hanging is undoubtedly accompained by ii'ltense physical torture and pain.'' (emphasis ours). Thereafter, the learned Judge refers to the description of the' method of hanging given by warden Duffy of San Quentin, a high security prison in America and the description given in 1927 by a surgeon who witnesses a double execution and records his conclusion by saying that ,the passages extracted by him established beyond doubt that "the execution of sentence of death by hanging does involve intense physicial -pain and suffering, through it may be regarded by some-as more humane than electrocution or applicatitm of lethal gas." This discussion will .show. that both the majority and the , minority in Bachan Singh cons.idered the question of the validity of '. • the death sentence from the procedural aspect also, with special reference to the method of hanging prescribed by law for executing the death sentence. While upholding the validity of death sentence; the majority did not overlook and, in fact, took into consideration the cirmustance that the mode prescribed by 'the Criminal Procedure Code. for executing the dea.th sentence is hanging. On~the other hand, while striking down the validity of death sentence Bhagwati, J., was influenced by the consideration that the mode of hanging prescribed by law for executing the .death sentence was itself cruel and bar)Jarous. F Though this k 'the true position, the reason why we are not inclined to uphold the preliminary objection ·taken by the learned Solicitor-General is that the , question as regards the consti- ,_. tutional validity of sectfon 354 (5) of the Code of Criminal Procedure was neither raised squarely by the petitioners in Baqhan Singh nor G considered directly by the Court. · If we may so put it, the . questiqn as regads the validity of section. 354 ( 2) of the Code was not directly and substantially in issue in Bachan Singh. The questions which ·arose for consideration in that case are formulated in the . majority judgment at p~ge 169 as Questions I and II. The · H , majority referred to the mode of execution of the death sentence only incidentally. The question whether the particular !'node of executing the death sentence prescribed by section 354 (5) of the Code violates the provisions of Article 21 was Jiot considered specifi ' -\ ! -- DEENA v. uNioN (Chandrachud, C.J.) ts cally by the majority as in independent issue: Considering the judg• ment of Bh_agwati, J., also as a whole, it would appear that the principal reason for which the ·learned Judge struck down the death oentence is its itrevoc~bility, ils arbitrariness and its lack .of. purpose. 01e of us was a party to the decision in Bachan Singh and if recollections do not fail so soon and are permissible aids to the understanding of a decision it would not be right to say that the qu~stion as regards the constitutional validity of . section 354 ( 5) of the Code was either directly put in issue in that case or ·_was argued upon or was considered by the Court as an independent reason bearing upon the validity of the death sentence. The question wliich the petitioners have raised in these writ petitions is importaJlt not only from the legal and constitutional point of view but also from the sociological point of view. It will not be proper to side-track that_ question and refuse to examine it fully because of the incidental consideration which it received in 'Bachan Singh. - Accordingly, we reject the preliminary objection raised by the learned Solicitor General and proceed to examine the question raised by the petitioners on its own merits, on the basis that the question is still open to argument. The petitioners, who have been sentenced to death for acts of outrageous brutality, have presented their case with _an air of injured innocence. Their claim is that no· matter what pain and suffering they may have iiifiicted upon their viCtims and their families, no pain or suffering whatsoever sh'all be caused to them while executing the 'death sentence. It is urged on their behalf by Shri R.K. Garg and the other learned counsel that ·even if it may be ' lawful to impose the death sentence in an exceptional class of cases, it is impermissible to execute that sentence even in those cases, since it is inhuman and cruel to take human life under any · circumstances, _ even under a decree of a Court.· That is the fundamental premise / of the petitioners' contention. 'Secondly it is urged 'that the method prescribed by section 354(5) of the Code for executing the, death sentence is inhuman, barb.arous and degrading and therefore that method cannot be employed for executing the death sentence. It is the constitutional obligation of the _State to provide for a humane and dignified mo,de of executing· the death sentence, which will not _involve torture or cruelty of any kind. It is urged that if the State fails to discharge that obligation, no death sentence cari be .executed, howsoever justifiably it may have been imposed. The Code of Criminal Procedure prescribes only one. method of executing the • A B c D E F G H A B c D E F G H / 16 SUPREME COURT l\EPQRTS [ 1984] 1 s.c.R. death sentence, namely, by hanging and if that method violates the mandate of Articie·21, the sentence must remain unexecuted, since the Court cannot substitute any other method of execution for the only method prescribed and envisaged by law. Finally, it is argued that the burden·is on the State to prove that the method of execu•. tion of the death sentence prescribed by section 354(5) of the Code is a humane and civilized method and that it does not involve pain, cruelty or degradation of any kind. This is so because, the burden to establish that any particular act, challenged as unconstitutional, is just and fair always lies on the State.