# Fatechand Himmatlal and Ors v. State af Maharashtra

- **Citation:** [1983] 1 S.C.R. 145
- **Court:** Supreme Court of India
- **Decided:** 1980-05-09
- **Case number:** Criminal Appeal No. 273 of 1979
- **Bench:** Y.V. Chandrachud, P.N. Bhagwati, R.S. Sarkaria, A.C. Gupta, N.L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/fatechand-himmatlal-and-ors-v-state-af-maharashtra-8569
- **Pages:** 227

## Headnote

145
(A} Death Penalty, whether' -constitutionally valid ?-Right to live, whether
the provisions of section 302, Penal Code, offends Article 19 of the Constilution-'
Distinctiop between "Public order" and "Law and Order''-Whether section 302,
Penal Code, violates Article 21, the basic structure of the Constitution and Article
6( I) of the lnternatlona_/ Covenant on Civil .and Political Rights as adoPted by the
General Assembly of the United Nations and reiterated in the Stockholm Declaration.
(B) Code of Criminal Procedure, 1973, section 354(3)-1/ section 302,
Pertal Code, is constitution(ll, whether the sentencing procedure provided in sec- ,
lion 354(3) of the Code4 Criminal Procedure, 1973 (Act Tl of 1974) is u~consti·
tutional on the ground that it invests with unguided and untrainmelled discretion
'and allows death sentence to he arbitrarily or freakishly imposed on a person fou~ ·
guilty of murder or any other capital offence punishable under the Indian Penal
. Code with death. or, In the alternative with bnprisonment for life.
(CJ Powers' of the Supreme Court to lay down standards or norms restricting the area of imposition of death perialty JO a narrow category of murders.
Upholding the constitutionality of section 302, Penal Code, and section
354 (3) of the Code of Criminal Procedure Code. the Court.
HELD : Per majority.
Sarkaria, J,
[On
behalf
of Cbandracbud, C.J.,
AC. Gupta,
N.L. Untwalia, JJ. and on his own behalf],
The right to Jife is not one of the rights mentioned in Article 19 (J) of
the Constitution and the six fundamental freedoms guarailteed under Article 19(1)
are not absolute rights. The condition precedent for the applicability of Article
19 is that the activity which the impugned law prohibits~and penalises, must be
within the purview of and protectioμ of Article 19 (!). [173 E, 174 A, B·CJ
A
B
C.
D
E
F
G
Q
146
SUPREME COURT REPORTS
(1983] l S.C.R.
A
State of Bombay.v. R.M.D. Chamarbaugwala, [1957] SCR 874@ 920;
B
c
[)
Fatechand Himmatlal and Ors. v. State af Maharashtra,
[1977] 2 SCR 828@
840 ; A. K. Gopalan v. The State of Madras, (1950] 1 SCR 88, followed.
2. The Indian Penal Code, particularly those of its provisions which
cannot be justified on the ground of unreasonableness with reference to any of the
specified heads, such as "public order" in clauses (2), (3) and (4) is not a law
imposing restrictions on any of the rights conferred by Article 19 (1). The_re are .
several offences under the Penal Code, such as, theft, cheating, ordinary assault,
which do not violate or affect "public order", but only "law and order". These
offences injure only speci_tic individuals as distinguished from the public at large.
It is now settled that "public order" means "even tempo of the life of the com·
munity". That being so, even all murders do not disturb or affect "public
order". Some murders may be of pure'ty privat~ significance and the injury or
harm resulting therefrom affects only specific individuals, and, consequently.
"such n1urders may not be covered by "public order" within the conten1plation of
clauses (2), (3) and (4) of Article 19. Such Inutders do not lead tO public dis.order
but to disorder simpliciter. Yet, no rational being can say that punishment of
such murderers is not in the general public interest. It may· be noted that geJ?eral
public interest is not specified as a head in clauses (2) to (4) on which restriction
on the rights mentioned in clause (i) of the Article may be justified.
-
,[181D.H,182 A-BJ
The real-distinction between the areas of "law arid order" and "public
order'' lies nofmerely in the nature or-quality of the act, but in the degree and
ex.tent. Violent crimes similar in nature, but committed in different contexts and
circumstances might cause different reactions. A murder committed in given
E
circumstances may caUse only a slight tremor, the wave length of which does
not extend beyond the parameters of law and order. Another murder committed
in different context and circu

## Text

_Characters 0–39,799 of 559,057. This is a partial read: ask again with offset=39799 for what follows._

'
BACHAN SINGH ETC. ETC •
. v. l
ST A TE OF PUNJAB ETC. ETC.
May 9, 1980/August 16, i982·
[Y.V. CHANDRACHUD, C.J., P.N. BHAGWATI, R.S. SARKARIA,
A.C. GUPTA AND N.L. UNTWALIA, JJ.]
145
(A} Death Penalty, whether' -constitutionally valid ?-Right to live, whether
the provisions of section 302, Penal Code, offends Article 19 of the Constilution-'
Distinctiop between "Public order" and "Law and Order''-Whether section 302,
Penal Code, violates Article 21, the basic structure of the Constitution and Article
6( I) of the lnternatlona_/ Covenant on Civil .and Political Rights as adoPted by the
General Assembly of the United Nations and reiterated in the Stockholm Declaration.
(B) Code of Criminal Procedure, 1973, section 354(3)-1/ section 302,
Pertal Code, is constitution(ll, whether the sentencing procedure provided in sec- ,
lion 354(3) of the Code4 Criminal Procedure, 1973 (Act Tl of 1974) is u~consti·
tutional on the ground that it invests with unguided and untrainmelled discretion
'and allows death sentence to he arbitrarily or freakishly imposed on a person fou~ ·
guilty of murder or any other capital offence punishable under the Indian Penal
. Code with death. or, In the alternative with bnprisonment for life.
(CJ Powers' of the Supreme Court to lay down standards or norms restricting the area of imposition of death perialty JO a narrow category of murders.
Upholding the constitutionality of section 302, Penal Code, and section
354 (3) of the Code of Criminal Procedure Code. the Court.
HELD : Per majority.
Sarkaria, J,
[On
behalf
of Cbandracbud, C.J.,
AC. Gupta,
N.L. Untwalia, JJ. and on his own behalf],
The right to Jife is not one of the rights mentioned in Article 19 (J) of
the Constitution and the six fundamental freedoms guarailteed under Article 19(1)
are not absolute rights. The condition precedent for the applicability of Article
19 is that the activity which the impugned law prohibits~and penalises, must be
within the purview of and protectioμ of Article 19 (!). [173 E, 174 A, B·CJ
A
B
C.
D
E
F
G
Q
146
SUPREME COURT REPORTS
(1983] l S.C.R.
A
State of Bombay.v. R.M.D. Chamarbaugwala, [1957] SCR 874@ 920;
B
c
[)
Fatechand Himmatlal and Ors. v. State af Maharashtra,
[1977] 2 SCR 828@
840 ; A. K. Gopalan v. The State of Madras, (1950] 1 SCR 88, followed.
2. The Indian Penal Code, particularly those of its provisions which
cannot be justified on the ground of unreasonableness with reference to any of the
specified heads, such as "public order" in clauses (2), (3) and (4) is not a law
imposing restrictions on any of the rights conferred by Article 19 (1). The_re are .
several offences under the Penal Code, such as, theft, cheating, ordinary assault,
which do not violate or affect "public order", but only "law and order". These
offences injure only speci_tic individuals as distinguished from the public at large.
It is now settled that "public order" means "even tempo of the life of the com·
munity". That being so, even all murders do not disturb or affect "public
order". Some murders may be of pure'ty privat~ significance and the injury or
harm resulting therefrom affects only specific individuals, and, consequently.
"such n1urders may not be covered by "public order" within the conten1plation of
clauses (2), (3) and (4) of Article 19. Such Inutders do not lead tO public dis.order
but to disorder simpliciter. Yet, no rational being can say that punishment of
such murderers is not in the general public interest. It may· be noted that geJ?eral
public interest is not specified as a head in clauses (2) to (4) on which restriction
on the rights mentioned in clause (i) of the Article may be justified.
-
,[181D.H,182 A-BJ
The real-distinction between the areas of "law arid order" and "public
order'' lies nofmerely in the nature or-quality of the act, but in the degree and
ex.tent. Violent crimes similar in nature, but committed in different contexts and
circumstances might cause different reactions. A murder committed in given
E
circumstances may caUse only a slight tremor, the wave length of which does
not extend beyond the parameters of law and order. Another murder committed
in different context and circumstances may unleash a tidal wave of such intensity~
'iravity and magnitude, that its i1npa<:t throws out of gear the even flow of life.
Nonetheless, the fact remains that for such murders which do not affect •!_public
order~', even the provision for life imprisonmen~ in section 302, Indian Penal
'F
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Code, as an alternative punisbm~nt, 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
und<r clauses (2) lo (5) of Article 19, (182 B-E]
R. S. Cooper v. Union oi ,India, [19701 3 SCR 530; Maneka Gandhi v.
Union of Indio; [1978] 2 SCR 621 ; Dr. Ram Manohar Lohia's case, [19t6) l
SCR 709; Hardhan Saha and Anr. v. State of West Bengal, [1975] 1 SCR 778@
.784, followed.
3. From the decided cases of the Supreme Court, it is
1
clear that the
test of direct ·and in,direct effect was not scrapped. Indeed; there is no dispute
that the test of "pith and substarice" of the subject-1natter and of direct aOd of
incidental effect of legislation is a very useful test to determine the question of
Jegislative compete~~~:~·~.·-~ i.~ ~sc;:~rtainin~ wh~ther ~n Act f~lls 1_.1n~er one Entry
BACHAN SINGH v. PUNJAB
147
while incidentally encroaching upon ailother Entry. Even for determining fhe
validity of a legislation On the grouod of infrlngemen~ of fundamental rights, the
subject- n1atter and the object of the legislation are not altogether irrelevant. For
instance, if the subject· matter of the legislation directly covers any of th.e fundamental freCdoms mentioned in Article 19 (I). 1t must pass the test of reasonable:
ness under the relevant head in clauses (2) to (6) of that Article. If the legislation does not directly deal with any of the rights in Article 19 (1), that inay not
conclude the enquiry. It \viii have to be ascertained .... further whether by its direct
and immediate operption, the impugned legislation abridges any of the rights
. enumerated in Article 19 (I). [189 B-D]
The mere fact th3.t the impugned law incidentally, remotely or collaterally
has the effect of abridgiug or abrogating those rights, will no·t satisfy the test. If
the answer to the above queries be in the affirmative, the impugned law in order
to be valid must pass the test of reasonableness under Article lf>.
BUt ·if the
impact of the law on any of the rights under clause (1) of Article 19 is.merely
in~idental, indirect, remotC or collateral and is dependent upon factors which
may or' may not come into play, the anvil of Article 19 will not be available for
judging· its validity. [190 A-CJ
R.C. Cooper v. Union of India, [1970] 3 SCR 530; Maneka Gandhi v. Union
of India, [1978] 2 SCR 621; Subrahmanyam_ Chattiar's case, [1940] FCR 188; Ram
Singh v. State of Delhi,. [1951] SCR 451; Express Newspapers (P) Ltd. and Anr. v.
The Union of India & Ors., [1959) SCR 12; Minnesota Ex. Rel. Olson, [1930) 283
U.S. 697@ 698; Sakal Papers (P) Ltd. and Ors. v. The Union of India, [1962) 3
SCR 842; Naresh Shridhar Mirojkor and Ors. v. State ofMaharnshtraond Anr.,
[1966] 3 SCR 744; Bennett Coleman's case, AIR 1973 SC 106, ref~rred to:
4.
Sec~ion 299 defines "culpable Jl,omicide" and section 300 defines
culpable homicide amounting to murder. Section 302 prescribeS death or impri~
sonment for life as "Penalty for murder. It cannot, reasonably or rationally, be
contended that any of the rights mentioned in Article 19 (I) of the Constitution.'
• confers the freedom. to commit murder or, for the matter of that, the freedom to
oeommit any offence whatsoever. -Therefore, penal laws, that is to say Jaws which
<!efine offences and prescribe punishment for the con1mission Or off~nces 'do not
:attrac.t the application of Article 19 (I}. It cannot be said that the object of the
penal laws is generaJly such as not to inv.olve·anY violation of the rights conferred
'by Article 19 (I) because after the decision of this Court in the Bank Nalionalisa· ·
tion case the theory, that (he object and form of the State action alone deterrpine
the extent of protection th3t may be claimed by an individual and that the effect
of the State actiOn on the fundamental right of the individual is irreleva~t; stands
discredited. But the point· of the matter is that, in pith and substaOce, penal
laws do not deal with the subject~matter of rights enshrined in ·Article 19 (1).
That again is not enough for the purpose of deciding upon the applicability of
Article 19, because eyen if a law does not, in its pith and subStanc~. deal with any
of the fundamental rights conferred by Article' -19 (I), if the direct and irievitable'
effect of the law is such ·as to abridgC or abrogate any of those rights, Article
19 (I) shall have to be attracteQ..
~t
W.~lJ~~ ~h~D; l?~~Q~~ necessary tQ t.est th~.
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SUPREME COURT REPORTS
[1983] I S.C.R.
validity of even a penal law on the touchstone of that Article. On this latter
aspect of the matter 1 it is clear that the deprivation of freedom consequent upon
an order of conviction and sentence is not a direct and inevitable consequence of
the penal Jaw but is merely incidental to the order of conviction and sentence
~hich may or may not come into play. that is to say, which may or may not be
passed. Section 302 of the Penal Code, therefore, does not have to stand the
test of Article 19 (1) of the Constitution. [190 C-H, 191 A-BJ
The onus of satisfying the requirements of Article 19, assuming that
the Article applies. lies on the person challenging
its validity. There is initial
presumption in favour of the constitutionality of the statute and the burden of
rebutting that presumption is thrown on the party who challenges the 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
re~ognition of the limits of judicial review, a respect for the boundaries of
legislative and judicial functions, and the judicial responsibility to ·guard the
trespass from one side or the other. The primary function of thC courts is to
interpret and apply the laws according to the will of those who made them and
not to transgress into the legislative domain of policy-making. Even whete the
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]
'
E
Saghir Ahmad v. State of Uttar Pradesh, [1955] l SCR 707 ; Kh}"erbari
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Tea Co. v. State of Assam &: Ors., A.LR. 1964 SC 925; B. Banerjee v. Anita Pan,
[1975] 2 SCR 774 @ 787 ; Pathumma v. State of Kera/a, [1978] 2 SCR 537;
· Denriis v. United States, 341US494. 525: 95 L.Ed. 1137: 71 S. Ct. 857; Gregg v.
1,..
Georgia, 428 US 153: 49 L.Ed. 2nd 859; State of Madras v._ V.G. Rao, (1952]
SCR 597 @ 607; Jagmo/1an Singh v. State of U.P., [1973] 2 SCR 541, referred
to.
5. Statistical attempts to assess the true penological value of capital
punishment remain inconclusive. Firs1ly, statistics of deterred potential murderers
are hard to obtain. Secondly, th~ approach adopted by the Abolitionists is
ove; simplified at the cost of other relevant but imponderable factors, the appreciation of which is es.sential to asstss the true renological value of capital punishment. The number of such factors is infinitude, .their character variable, duration
transient and abstract formulation difficult. Conditions change from country to
country and time to time. Due to the inconsistancy of social conditions, it is not
scientifically potsible to assess with any degree of accuracy, as to whether the
variatioll in the incidence of capital Crime is attributable to the presence or
pbsence of death penalty in the penal law of that c~untry for sucb crimes.
(215 E-H, 216 Al
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BACHAN SINGH V, PUNJAB
149
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, diver-gent views. For the purpose of testing the constitutionality of the
impugned provision as to death penalty in sec;tion 302, Penal Code, on the ground
of reasonableness ,in the light of Articles 19 and 21
of the Constitution,
it is
not necessary to express any categorical opinion, one way or the
other, as to. which of th~se two antithetical views, held by the Abolitionists
and Retei:itionists, is correct. It is
sufficient to say that the very fact
that persons of reason. learning and light are rationally and deeply divided
in their opinion on this issue, is a ground among others, for rejecting the
petitioners' argument that retention of death penalty in the. impugned provision,
is totally devoid of reason and purpose. If, notwithstanding the view of the
Abolitioriists to the contrary, a very Jarge segment of people the world over,
including sociologists, legislators, ·jurists, judges and administrators still firmly
believe in the worth and necessity of capital punishment for the protection of
society, if in the perspective of prevailing crinie conditions in India,,.contemporary
public opinion chanatised through the "people's representatives in Parliament, has
repeatedly in the last three decad~s, rejected all attempts, including the one made
recently, to abolish or specifically restrict the· area of death penalty, if death
penalty is still a recognised legal sanction for murder or some types of murder in
most of the civilised countries in the world, if the framers of the Indian Consti ..
tution were' fully aware of the existence of death penalty· as punishment for
murder, under the Indian Penal Code, if the .35th Report and subsequent Reports
of the Law Commission suggesting retention of death penalty, and recommending
revision of the Criminal Procedure Code and the insertion of the new sections 235
(2) and 3S4 (3) in that Code providing for pre--sentence hearing and sentencing
procedure on conviction for murder another capital offences were before the
Parliament and presumably considered by it when in 1972-73 it took up revision
of the Code of 1898, and replaced it by the~.,. Code of Criminal Procedure, 1973, it
cannot be Said that the provision of cleath penalty as an alternative punishment
for Inurder, in section 302, Penal Code, is unreasonable aiid not in public interest.
Therefore, the impugned provision in section 302, violates neither the letter nor
the ethos of Article 19. [221 B-H, 222 Al
7. -(I) Neither the new interpretative dimensions given to Articles 19 and
21 by the Supreme Court in Maneka Gandhi, [1978] 2 SCR 621, and Charles
Sobraj v. The SuperinttJndent, Central Jail, Tihar, New Delhi, [1979] 1 SCR 512,
nor the acceptance by India of the International Covenant on Civil. and
Political Rights, make'J any change in the prevailing standards pf decency and
human dignity. The International Covenant does not outlaw capital punishment
for murder altogether. [225 C-E]
(ii) In accordance with the interpretative princiPie indicated by the
Supreme Court in A1aneka's case, Article 21 will read as "No person shall be
deprived of his life or personal liberly except according to fair, just and reasonable procedure establlshed by valid law" or in its converse positive form as HA
person may be deprived of his life or personal liberty in accordance With fair,
just and reasonable procedure established by valid law." Article 21, thus, clearly
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150
li.iJPllEME COIJJ.<T REPOl!.TS
[1983] J S.C.I!..
brings out the itnplication, that the Founding Fathers reco"gnised the right of the
State to c.Ieprive a person .of his life .or personal liberty in accprdance with fair,
just and reaSonable procedure established by valid law.
In vieW of the ·constitutional provisions-Entries I and 2 in List III Concurrent List of Seventh Schedule
Articles 72 (J) (c), 161 and 134-it cannot be said that death penalty under section
302, Penal c'ode, per se or because of its execution by hanging, constitutes an
unreasonable, cruel or unusual punishment. By reason of the same constitutional
postulates, it cannot be said that the framers of the Constitution considered death
sentence for murdl!r or the prescribed traditional mode of its execution as a
degrading punishment whi~h would defile athe dignity of the individual'' within
the conten1pla1ion of tht: Preamble to the Constitution. On parity of reasoning,
it cannot be said that death penalty for the offence of murder violates the basic
structure of the Cons~itution. [222 E~H, 223 A-B, F·H]
(iii) Clauses (1) and (2) of Afticle 6 of the International ·covenant on
Civil and Political Rights do not abolish or prohibit ihe imposition of death
penalty in all circumstances. All that they require is that, firs1ly, death penalty
shall not be arbitrarily inflicted; secondly, it sh11l be imposed only for most
··serious crimes in accordance with a law which shall not be an ex post facto legis·
lation. Thus, the requirements of these clauses are sUb'stantially the same as the
guarantees or prohibitions contained_ in Articles 20 and 21 of our Constitution.
India's commitment, therefore, does not go beyond what is provided in the Cons~
titulion and the Indian Penal Code and the Crimini!l Procedure Code, The Penal
Code prescribes de~th penalty as an alternati~e punishment cnly for heinous
crimes which are not more than seven in number. Section 354 (3) of the Criminal
Procedure Code,'1973 in keeping with the spirit of the Internationa·l C6venant 1
has further restricted the area of dealh penalty. Illdia's penal laws, including the
impugned provisions and their application, are thus entirely in accord with its
international ·commitment. [224 G-H, 225 A-C]
8. The procedure provided in Criminal Pro6edure Code for imposing
capital punishment for murder and' some other capital crimes under the Penal
Code canndt, by any reckoning, be said to be unfair, unreasonable or unjust. Nor
can it be said that this sentencing discretion, with which the Courts are invested,
amounts to delegation of its power Of legislation by Parliament. The impugned
provisions do not Violate Articles 14, 19 and 21 of the Constitution.
[238 B, G·H, 239 A-BJ
..
Section 235 (2) of the Code of Criminal Procedure makes not only explicit
what aq:ording to the decision in Jagmohan' s case was in1plicit in the scheme of
the Code, but also bifurcates the trial by providing two hearings, one at the preconviction stage and another at the pre-!.entence stage. And, section 354 (3) of
the Code marks a significant shift in the legislative policy .under lying the Code,
1898, as in force immediately before April 1, IS74, according to whi"ch both the
alternative sentences of death or imprisonment for life provided for mui'der
and for certain other capital offences under the Penal Code, were normal
senienccs. Now, according to this changed legislative policy which is patent on
· the face of section 354 (3), the normal punishment for murder and six other
capital offences under the Penal Code is imprisonment foe life (ot iinprisonment
for a term of years) and d~ath penalty is an exception. [229 F-0, AMB]
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BACHAN SINGH V. PUNJAB
151
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 id this provision that if a request is made in that
beh<ilf by ~ither the prosecution or the accused, or by b9th, the Judge should give.,
the party or parties _concerned an opporturiity of producing evidence or material
relating to the various factors.bearing on the question of sentence. [230 E-F]
Jagmohan·Singh v, State o[ U.P., [1973] 2 SCR 541, reiterated.
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 Jarg~ and clear on the face of section 354 (3) is that
on conviction of murder and other capital offences punishable in the alternat~vc
with death under the Penal Code, the extren1e penalty Should be imposed only in
extreme cases. [236 C-D]
~
.
Bo/want Singh v. State of Punjab, [1976] 2 SCR 684, referred to.
10. Section· 235 (2) of the Code provides for a bifurcated trial and
specifically gives the accused person a right of pre~sentence hearing, at which
stage: he can bring on record ma~edal or evidence, Which may not be strictly
relevant to or connected with the pilrticul'ar crime under inquiry, but nevertheless
have: consistently with the policy underlined in section 354 (3), a bearing on the
choice of sentence. The present legislative policy dis~ernible from section 235(2)
read with section 35 4(3) is that in fixing the degree of punishment or making lhe
choice of senterice for Various offences, including one under section 302, Penal
Code, t~e Court should D.ot confine its coD.sideration "''princip3.Jly" or "merely"
to the circumstances connected with the particular crime, but also give due con.
sideration to.the circumstances of the criminal. l237 CPE]
11. The Supreme Colirt shot.ild not venture to formulate rigid standards
in an area in which the Legislature so warily treads. Only broad guidelines consis.
tent with the policy indicated· by the Legislature can be laid down. But this
much can be said that in order to qualif). for inclusion in the cate8ory of "a8gra·
vating circumstances~' which may form the basis of "special reasons" in section
354(3), circumstances found on the fa..:ts of a particular case, must evidence
aggravation of an abnormal or special degree. [243 &F, 254.B-C] ·
Gurbakash Singh Sibbia and Ors. v, State of Punjab, [1980] 3 SCR p. 383,
applied.
Hy"man and Anr. v. Rose, [1912] AC 623, referred to.
12. Sections' 354 (3) and 235 (2) and. other related provisions of the Code of
1973 make!t clear that for making the choice of punishment or for. ascertai~ing
,
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SUPREME COURt REPORTS
[198~1 I s.c.a.
the existence or absence of Hspecial reasons" in that context, the Court must pay
due regard both to the critne and the criminal. What is the relative weight to be .
given to the aggravating and mitigating factors, depends on the facts and circum·
stances of the particular case. More often than not, these two aspects are so
intertwined that it is difficult to give a separate treatment to each of them. This is
so because "style is the man." In many cases, the extremely cruel or beastly
manner of the commission of murder is itself a demonstrated index of the
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-CJ
Rajemfra Pra&ad v. State of U.P. [1979J 3 SCR p. 78, Bishnu Deo Shaw v.
State of West Bengal, [1979]3 SCR p. 355, overruled.
13. · There are numerous other circumstances justifying the passing of~ the
lighter sentence, as there are countervailing circumstances of aggravation. "We
cannot obviously feed into a judicial computer all such situations since they are
astrological imponderables in an imperfect and undulating_society." Nonetheless,
it cannnot be over emphasised that the scope and concept of mitigating factors in
the" area of death penalty must receive a
liberal and expansive 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 inflicled 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
tlie rule and death sentence an exception. A real and abiding concern for the
dignity of human life postulates resistance to taking a life through law's instrumentality. That ought LOt to 1Je done save in the rarest of rare cases when the
alternative option is unquestion~bly foreclosed. l255 E-H, 256 A-C]
Per Bhagwotl J. (Dissenting)
,, 1:1. Ordinarily, on the principle of stare decisis, Judges would hold them·
selves 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 considera-
·tions, the Court can depart from this ·precedential rule in any particular case.
(258 A-BJ
1 :2. The rule of adherence to precedence is not a rigid and inflexible ,.. rule
of Jaw, but it is a rule of practice adopted by the Courts for the purpose of
ensuring uniformity and stability in the law. Otherwise there will be no certainty -
and pre(!ictability in the law,.Ieading to chaos and confusion and in the process
BACHAN SINGH v. PUNJAB
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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
ruie of stare decisis were followed ·blitldly and mechanically, it would dwarf
and stultify the growth of the law and affect its capacity to adjust itself to the
changing needs of the society·. [258 B-C, D,E,F]
1:3 There are certain issues which transcend technical considerations of
stare decisis and if such an issue is _brought before the Court,' it would be
nothing short of abdication of its constitutional duty for the Court to refuse to
consider such issue by taking refuge under the doctrine of stare decisis. The
C0urt mRy refuse to entertain such an issue like the constitutional validity of
death penalty because it is satisfied that the previous decision is correct but it
c"nnot decline to consider it on the ground that it is barred by the rul~ of
adherence to precedents. (259 E-G]
In the present Case, there are two other supervening circumstances which
·justify; may compel, re-consideration of the decision in Jagmohan's ca~e. The
first is the introduction of the new Code of ...... Criminal Procedure in 1973, which by
section 354, sub-section (3) has made life sentence the rule, in case of offences
punishable with death or in the altern.ative imprisonment for life and provided
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 (l978) 2 SCR
663. This new dimension of Articles 14 and 21 rendefs the death penalty·
provided in section 302 of the Indian Penal Code read with section 354 (3) of the
Code of· Criminal Procedure vulnerable to attack on a ground not available at the
time when Jagmohan's case waS decided.
Furthermore~ since Jagmohan's case
was decided, India bas ratified two international instruments on Human Rights
and particularly the International
Covenant on civil and political rights.
(259 G·H, 260 A·D]
Jagmohan v. State of U.P.
A.I.R.1973 SC 947, dissented from:
State of Washington v. Dawson and Company 264 U.S. 646; 68 L. Edn. 219
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Maneka Gandhi v. Union of India, (1978] 2 SCR 663 applied.
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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 El
Jagmohan Singlt v. State of Uttat Pradesh, AI~ 1973 SC 947, not followed.
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2:2 The culture and ethos of the natio·n as gathered from its history, it8
tradition and . its literature would clearly be relevant factors in adjudging the
constitutionality of death penalty and so would the ideals and values embodied
in the Constitution which Jays down the basic frame-work of 1hc social and
political structure of the country, and which sets out the objectives and goals· to
be pursued by the people in a common endeavour to secure happiness and welfare
of every member of tpe society. So ~lso standards or norms set by International
organisations and bodies have .relevance in determining the constitutional validity
of death penalty and equally important in construing_ and applying the equivocal
. formulae of the Constitution would be the "wealth of non-legal learning and
experienceJhat encircles and illuminates" the topic of death penally. l261 B-E]
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2:3. The objective of the United Nations has been and that is the standard
set by th~ world body that capital punishment should be .abolished io. all countri'es.
This nonnative standai"d set t·y the world body must be taken into account in
determining whether the death penalty can be regarded as arbitrary, excessive and·
unreasonable so as to be·con,stitutionally invalid. [268 B-C]
2:4. The Constitution of India is a unique document. It is not a mere
pedantic legal text but it embodies certain human values, cherished principles,
-and spiritual norms and recognises and upholds the dignity of man. It accepts
the individual as the focal point of all development and regards his material,
moral and spiritual development as the chief concern of its various provisions.
It does not treat the individual as a cog in the mighty all-powerful machine of
the State but places him at the centre of the constitutional scheme and focuses on
the fullest development of his personality. The several provisions enacted in the
constitutions for the purpose of ensuring the digni~y of the individual and providing for bis material, moral and spiritual development would be meaningless and
iiieffeclual unless there is rule Of law to invest them with life and force.
(268 C-D, G-H)
· 2:5. The rule of law permeates the entire fabric of the Constitution and
indeed forms one of its basic fe<:tlures.
T~e rule of law excludes arbitrariness;
its postulate is 'intelligence without passion' and 're-ason freed from desire'.
Wherever we find arbitrariness or unreasonableness there -is denial of the rule of
law. "Law" in the context of the rule of law, does not mean any Jaw enacted
by the legislative authority, howsoever arbitrary or despotic it may be. Other·
wise even under a dictat.orship it would be possible to say that there is rule of
Jaw, because every law made by the dictator howsoever arbitrary and unre!lson·
able has to be obeyed and every action has to be taken in conformity with such
law. In such a case too even where the political -se.t up is dictatorial, it is law
that governs the relationship between men and men and between men and the
State. But still it is not a fule of law as understood_ in modern jurisprudence
because in jurisprudential teri:ns, the law itself in such a case being an emanation
from the absolute will of the dictator~ (tis in effect and substance the rule of man
and not of"law which prevails in such a situation. What is a necessary element
of the ruJ,~ of J(lw is thal the law nH;st not be nrbitrary and irrational and it must
Satisfy the test or rea·son and the democratic form of polity seeks to ensure this
element by making the framers of the law accountable to the people. [269 9 A-E)
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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 haods of a
democratically elected legislature, subjec_t of course to any p<Jwer in tbe executive
in an emergent situation to promlllgatc ordinance effective for a short duration
while fhe legislf\tion
i<i not in session as also to enact delegated legislation in
accordance With the guidelines laid down by the legislature; the other is that, even
in the hands' of a democratically elected legislature, there should not be unfetter7
ed legislative power; and lastly there must be an independent ju~iciary to protect
the citizen against excesses .of executive and legislative power and we have in our
country all .these three elements essential to the rule of law. It is plain and
indisputable that under our Constitution law cannot be arbitrary or irrational and
if it is, it would be clearly invalid, whether under Article 14 or Article 19 or
Article 21, whichever be applicable. [275 E-H. 276 A:B] ·
Minerva Mill's case [1981] l SCR 206; Maneka Gandhi's case [1978) 2
SCR 621; Airport Avthority oj J11dia's case f1979J 3 SCR 1014; A.K. Gopalon's
case [1950) SCR 88; F.C. Mullen's case [1981) 2 SCR 516 referred to.
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 la_w.
Apart from Article 21, Clause (C)of Article 72 also recogiiises
the possibility of a sentence of death being_ imposed ou a person convicted of an
offence inasmuch as it provides that the President shall have the power to suspend, remit or commute the sentence of any person who 'is convicted of an
offence and sentenced to death, Thereiore, the imposition of death sentence fOr
conviction of an offence is not in all coses forbidden by the Constitution. But
that does not· mean that the infliction of .death penalty is blesse~ by the Constitution or that it has the imprimatur or seal of approval of the Constitution. The
Constitution is not a transien~t ·docuriient but it is meant to endure for a long,
time to .come and during its life, situations may ~rise where death penalty may be
. found to serve a social purpose an~ its prescriptio~ may not be liable to be
regarded as arbitrary or unreasonable and therefore to meet such situatiOns, the
Constitution had to make a provision and this it did in Article 21 and clause (c)
of Article 72 so that, even where death penalty is prescribed by any Jaw and it is
otherwise not unconstitutional, it must still comply with the requirement of
Article 21 and it would be subject to the clemency power of the P1esident under
clause (c) of Article 72. [276 D·H, 277 A-Bl
2:8. From 'the legislative histofy of the relevant provisLons of the lndian
Penal Code and the Code of Criminal Procedure, it is clear that in our country
there has been a gradual shift against the imposition of death penalty. Life sentence is now the rule and it is only in exceptional cases, for special reasons,
that death sentence can be imposed. The legislature has howe·ver not indicated
what are the special reasons fOr which departure can be made from the normal
rule and death penaHY may be inflicted. The legislature has not giv<:n any guidance as to what are those exceptional cases in which', deviating from the normal
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rule, death sentence may be imposed. This is left entirely to the unguided discretipn of the Court, a-feature, which has lethal con~equences 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 pro.blem of constitutional validity of death penalty cannot be
appreciated in its proper perspective without an adequate understanding of the
true nature Of death penalty and What it involves in terms of hU.man anguish and
suffering. In the first place, death penalty is irrevocable; it cannot be recalled.
It extinguishes the flame of life for ever and is plainly destructive of the right to
life, the most precious right of all, a right without which enjoyment of no other
rights i.s possible. If a person is sentenced to imprisonment, even 'if it be for life,
and subsequently it is found that he was innocent and was wrongly convicted, he
can be set free. Of course, the imprisonment that hi has suffered tip then Cannot
be undone and the time he has spent in the prison cannot be given back to him
in specie but he can come back and be restored to normal life with bis honour
vindicated, if he is found innocent. But that is not possible where a person has
been wrongly convicted and sentenced to death and put out-of existence in 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 Jaw before death penalty can .be imposed, it is impossible to eliminate the
chance of judicial error. No possible judicial safeguards can p~event conviction
of the innocent. It is indeed a very live possibility and it is n"ot at all unlikely
that so long as death penalty remains a constitutionaly valid alternative, the
Court or the State acting thrOugh the instrumentality of the Court may have on
its conscience the blood of an innocent man. (283 D-E. G-H]
2:11.- Judicial error in imposition of death penalty would indeed be a
crime beyond punishment. This is the drastic nat'ure of death penalty, terrifying
in its consequences, which has to be taken into account in determining its 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 oil the prisoner in the Death Row is disastrous. (284 E-F]
Furman v. Georgia 408 US 238; .Io Re Kemmler 136 US 436; In Re Medley
134 US 160; quoted with approval.
2:12. Penological goals also do not justify the imposit.ion of death penalty
for the offence of murder. The prevailing standards of human decency are also
incompatible with death penalty. The standards of human decency with reference to which the proportionality of the punishment to the offence is required
to be judged vary from society to societr depending on the c~lturaJ and spiritual
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BACHAN SlNGH V. PUNJAB
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tradition of the society, its history and philosophy and its sense of moral and
ethical values.