# JAGMOHAN SINGH v. THE STATE OF U. P

- **Citation:** [1973] 2 S.C.R. 541
- **Court:** Supreme Court of India
- **Decided:** 1972-10-03
- **Bench:** S. M. Sikri, A. N. Ray, I. D. Dua, D. G. l'ALEKAR, B M. H. Beg
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jagmohan-singh-v-the-state-of-u-p-5873
- **Pages:** 21

## Headnote

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Jndiu.11 Penal ('ode S. 302-Vlllidity-Provi'sion for sentence of death
whether violative of frcedo111s under Art. 19 · Constitution of /ndiaU'hether suf]ers jro//l excessive delegation-Whether violative of Art. 14
-Whether deprive~· ac:cused of his life without any "protedure established hr low" wi1!1in 111caning of Art 21.
The sentence of death for an offence under S. 302 of the lndian
Penal Code
imposed on the appellant by the Sessions Judge and confirmed by he High Court was challenged in appeal by special leave
in this Court on the following grounds : (i) that the death sentence
puts an end to all fundamental rights guaranteed under clauses (a) to
(g) of sub-clause (ii) of Art. 19 of the Constitution and therefore the
law with regard to capital sentenc\, is unreasonable and nol
in
the
interest of the general public; (ii) that the o'scretion invested
in
the
J udgcs to impose capital punishment is not booed on any stunt.lards
or policy required by the Legislature for imposing capital punish1ncnt
in
preference
to
imprisonment
for
1ife;
(iii)
that
th~
un~
controlled and unguided discretion in the Judges to
impose
t.:apita1
punishment or i.mprison1nent for 1ife is hit by Art. 14 of the Constitution
(iv) that the pfovisions of the Jaw do not provide a procedure for trial
of factors and circumstances crucial for making the choice betv,.'cen the
capital penalty and imprisonment for life, and therefore Art. 21 is violated.
Dismissing the appeal,
HELD : (i) Articles 72(1 )(c), and 134 of the Constitution and
entries l and 2 in List Ill of the Seventh Schedule to the Constitution
show that the Constitution nlakers had recognised the death
sentence
as a permisSible punishment and had made constitutional provi~ion:-. 1vr
appeal, reprieve, and the like.
But, more important than
these
provisions in the Constitution is Art. 21, which provides that no person
shall be deprived of his life except according to procedure established
by law.
The implication is very clear.
Deprivation of life is constitu~
tionally permissible if that is done according to procedure established
by law.
In the face of the'.e indications of constitutional postulate• it
will be very difficult to hold that capital sentence was regarded pa se' as
unreasonable or not in the public interest.
In the context of our Criminal law, which punishes murder one can-
·not ignore the fru::t that life imprisonment works out in mosi cases to
a dozen years of imprisonment and it may be seriously questioned
-v.-hether that sole alternative will be an adequate substitute for the death
penalty.
Proposals for its abolition have not been accepted by Parliament. In this state of affairs, it cannot be said that capital punishment
"' such, is either unreasonable or not in public interest. [5t9CF; 552B] '
(ii) In India, the onerous duty of passing the death sentence is cast
on Ju~ges, and, for more _than a century, judge~ have. been ca~ryi~g
out this duty under the Indian Penal Code.
!Ji.e 1mposS1bility of laying
down standards is at the very core of the Criminal Ja\V as. administered
;n Jn<lia ~hich inve1;ts the Judges with a verv wide discretion
1~ thie
542
SUPREME COURT REPORTS
[1973] 2 s.c.R.
matter of fixing the degree of punishment.
That
discretion
in
the
matter of sentence is 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. [5S9B]
·(iii) Crime as crime may appear to be superficially the same, but
the facts and cirdun1stances of a crin1e are widely different, and, since
a decision of the court as regards punishment is dependent upon a consideration of aH the fads and circumstances. there is hardly any ground
for a challenge uhder Art. 14. [559G]
(iv) The acciused in a trial for n1urdcr has opportunities at various
· !:tages of the trial to bring on record
1f~.cts and circun1stances that v.;ould
iustifv. on conviction, the Jesser penalty of
!if~

## Text

_Characters 0–39,986 of 58,977. This is a partial read: ask again with offset=39986 for what follows._

541
A
JAGMOHAN SINGH
v.
THE STATE OF U. P.
October 3, 1972
[S. M. SIKRI, CJ., A. N. RAY, I. D. DUA, D. G. l'ALEKAR AND
B
M. H. BEG, JJ.J.
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Jndiu.11 Penal ('ode S. 302-Vlllidity-Provi'sion for sentence of death
whether violative of frcedo111s under Art. 19 · Constitution of /ndiaU'hether suf]ers jro//l excessive delegation-Whether violative of Art. 14
-Whether deprive~· ac:cused of his life without any "protedure established hr low" wi1!1in 111caning of Art 21.
The sentence of death for an offence under S. 302 of the lndian
Penal Code
imposed on the appellant by the Sessions Judge and confirmed by he High Court was challenged in appeal by special leave
in this Court on the following grounds : (i) that the death sentence
puts an end to all fundamental rights guaranteed under clauses (a) to
(g) of sub-clause (ii) of Art. 19 of the Constitution and therefore the
law with regard to capital sentenc\, is unreasonable and nol
in
the
interest of the general public; (ii) that the o'scretion invested
in
the
J udgcs to impose capital punishment is not booed on any stunt.lards
or policy required by the Legislature for imposing capital punish1ncnt
in
preference
to
imprisonment
for
1ife;
(iii)
that
th~
un~
controlled and unguided discretion in the Judges to
impose
t.:apita1
punishment or i.mprison1nent for 1ife is hit by Art. 14 of the Constitution
(iv) that the pfovisions of the Jaw do not provide a procedure for trial
of factors and circumstances crucial for making the choice betv,.'cen the
capital penalty and imprisonment for life, and therefore Art. 21 is violated.
Dismissing the appeal,
HELD : (i) Articles 72(1 )(c), and 134 of the Constitution and
entries l and 2 in List Ill of the Seventh Schedule to the Constitution
show that the Constitution nlakers had recognised the death
sentence
as a permisSible punishment and had made constitutional provi~ion:-. 1vr
appeal, reprieve, and the like.
But, more important than
these
provisions in the Constitution is Art. 21, which provides that no person
shall be deprived of his life except according to procedure established
by law.
The implication is very clear.
Deprivation of life is constitu~
tionally permissible if that is done according to procedure established
by law.
In the face of the'.e indications of constitutional postulate• it
will be very difficult to hold that capital sentence was regarded pa se' as
unreasonable or not in the public interest.
In the context of our Criminal law, which punishes murder one can-
·not ignore the fru::t that life imprisonment works out in mosi cases to
a dozen years of imprisonment and it may be seriously questioned
-v.-hether that sole alternative will be an adequate substitute for the death
penalty.
Proposals for its abolition have not been accepted by Parliament. In this state of affairs, it cannot be said that capital punishment
"' such, is either unreasonable or not in public interest. [5t9CF; 552B] '
(ii) In India, the onerous duty of passing the death sentence is cast
on Ju~ges, and, for more _than a century, judge~ have. been ca~ryi~g
out this duty under the Indian Penal Code.
!Ji.e 1mposS1bility of laying
down standards is at the very core of the Criminal Ja\V as. administered
;n Jn<lia ~hich inve1;ts the Judges with a verv wide discretion
1~ thie
542
SUPREME COURT REPORTS
[1973] 2 s.c.R.
matter of fixing the degree of punishment.
That
discretion
in
the
matter of sentence is 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. [5S9B]
·(iii) Crime as crime may appear to be superficially the same, but
the facts and cirdun1stances of a crin1e are widely different, and, since
a decision of the court as regards punishment is dependent upon a consideration of aH the fads and circumstances. there is hardly any ground
for a challenge uhder Art. 14. [559G]
(iv) The acciused in a trial for n1urdcr has opportunities at various
· !:tages of the trial to bring on record
1f~.cts and circun1stances that v.;ould
iustifv. on conviction, the Jesser penalty of
!if~ i1nprison1nent.
T'hcre
is also nothir:g in the Criminal Procec';ore Code which prevents additional e\·~dence bein"g taken.
It is, however, not the expericncle of crin1in~tl
courts. in India that the accused lh'ith a vic·\v to obtaining a reduccu
sentence, ever offers to call additionnl evidence. [561B]
It is necessarv to emphasize that the court is principally concerned
with facts and circumstances, whether aggravating or mitigating, which
are connected with the particular cJrime under inquiry.
All such fact'
and circumstances are capable of being proved in accordance wit'1 the
provisions of the Indian Evidence Act in a trial regulated by the Cr.P.C.
The trial does not come to an end until all the relevant facts arc proved
and the counsel on both sides have an opportunity to address the court.
1b.e only thing that remains is for the Judge to deci<lo on the guilt and
punishment and that is what section 306(2) and 309(2) Cr.P.C. purport to provide for. These provisions arc part of the procedur1..• established by law, and, unless it is shown that they are invalid for any
other reason, they must be regarded as valid.
No reasons \Vere offered
to show that they arc constitutionally inv:ili<l. and hence. the death
sentence iinposed after· trial jn accordanL'c \Vi th the procedure established
by Jaw fs not unconstitutional under Art. 2 L f.:'61 C]
Ram Narain and others v.
The State of U.P..
1971
S.C.
757.
State of Mr;dras v.
V. G. Row.
[1952] S.C.R.
597, Furman
v.
State of Georgia, (Nos. 69-5003, 69-5030 and 69-5031 decided on June
29, 1972), Municipal Committee v. Baisaklii Ram,
Crl.
Law .Journal
475, Mccailtha v. California, United States Supreme Court Reports Law.
years' Edition, 28, 713 and Budhan Clto11tlhry and others v. The Stale <'/
Bihar, [1955] S.C.R. 1045, referred "to.
CRIMINAL
APPELLATE
JURISDICTl01' :
Criminal Appeal
No. 173 of 1971.
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Appeal' by special )eave from the judgment and order dated
February 26. 1971 of the Allahabad High Court at Allah3bad in
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Criminal Appeal No. 1229 of 1970 and Reference No. 96 of
1970.
R. K. Garg. A. K. Gupta. Indira .Tai Si11gl1. V. J. Fm11cis and
R. S. Shanna for the appellant.
. 0. P. Rana for the., respondent.
H
.1. V. Rangum and A. S11b/wshi11i for the '.;l:lte o[ Tamil Nadu
R. N. llagm and M. Veera1•J1<1 for the Stctk c>f Mysore.
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JAGMOHAN v. U.P. STATE (Palekar, J.)
543
F. S. Nariman, Additional Solicitor General of India, P. Parames/11vara Rao and B. D. Shanna for the Attorney General.
Bakshi Sita Ram and R. N. Sachthey
for
the
Advocate
General, Himachal Pradesh.
A. K. Gupta for intervener (Shyam Narain).
R. K. Jain and R. K. Garg for Interveners (Duraipandi Theva1
and Krishna Thevar).
The Judgment of the Court was delivered by
PALEKAR, J. The appellant Jagmohan Singh has been conviccd under section 302-IPC for the murder of one Chhotey Singh
and sentenced to death by the learned Sessions Judge, Shahjahanpur.
The conviction and the sentence are confirmed by the
Allahabad High Court.
On the appellant coming to this Court
by special leave, special leave was granted limited to the question
of sentence only.
The shot1 facts of the case are that some six or seven years
before the present offence, one Shivraj Singh, father of Jagbir
Singh, a cousin of the appellant, was murdered. The deceased
Chhotey Singh was charged for that murder but was
eventually
acquitted. by the High Court.
As a result of that murder, there
was ill-feeling between Chhotey Singh, on the one hand, and the
appellant and Jagl:iir Singh, on the other. Both of them were_
minors at the time of the murder of Shivraj Singh.
But by now
they had grown up and it is plain from the evidence that Chhotey
Singh's murder was the result of this ill-feeling.
Chhotey Singh
was murdered on September 10. 1969 at about 5.00 P.M. A
day earlier, there was n quarrel between Jagmohan Singh and
Jagbir Singh, on the one hand. and Chhotey Singh, on the other,
on the question of a right to irrigate their fields.
However, the
dispute was settled by persons who reached the spot at the time
and nothing untoward happened. Next day, however, the appellant armed with a country made pistol and Jagbir Singh anned
with a lathi concealed themselves in a bajra field and emerged
from the same as Chhotey Singh passed by to go to his field for
fetching fodder. The appellant asked Chhotey Singh to stop so
that the matter between thein could be
settled
once for. a!L
Naturally Chhotey Singh tried to run away but he was chased bv
the appell~nt and sh~t in the back;
Chhotey Singh fell
down
after runm?g some distance and dwd.
That is how the murder
was committed.
. On the facts and circumstances of the case the learned Sess10ns J.udge held that the appellant deserved the extreme penalty.
The High Court, while confirming the death sentence, observed
544
SUPREME COURT REPORTS
(1973] 2 S.C.R.
that there were no extenuating ~ircwmtanccs and the sentence of
death awarded to the appellant was just and proper. The question is whether this Court should interfere with the sentence.
Under section 367(5) of the Criminal Procedure Code as it
stood before its amendment by Act 26 of 1955 the normal rule
was to sentence the accused to death on a conviction for murder
and to impose .the lesser sentence of imprisonment for life for
reasons to be recorded in writing. That provision is now deleted
and it is left to the judicial discretion of the court whether the
death sentence or the lesser sentence should be
imposed.
That
disc!don has been exercised concurrently by the Trial Court and
the High Court and the question is whether there are sufficient
reasons for this court to interfere with that discretion. As pointed
out by chis Court in Ram Narain and others v. The State of
U.P. (') this Court .normally does not interfere with the
discretion exercised by the High Court on the question of sentence unless the High Court has disregarded recognised principles in imposing the sentence and there has been a failure of justice. It
cannot be said on the facts of this case that there has been any
breach of the principles governing the matter of sentence.
The
appellant had armed himself with a gun and was lying in wait for
the victim to pass. There was no immediate cause. The murder
was entirely motivated by ill-feelings nurtured for years. The
offence was pre-meditated.
On seeing the appellant, Chhotey
Singh started running away, but he was chased and done to death.
In tl:ese circumstances, it can hardly be said that the High Court
did not exercise its discretion properly. We are, therefore, not inclined to interfere with the sentence imposed by the High Court.
Mr. Garg appearing on behalf of the
appellant however,
raised the· question of constitutional impermissibility of the death
sentence for murder, and we have to deal with the question at
some length.
In the first place. he .contepded. the death sentence
puts an end to all fundamental rights guaranteed under clauses
(a) to (g) of sub-clause (I) of Article 19 and.
therefore, the
law with regard to capital sentence is unreasonable and not in the
interest of the general public.
Secondly. he contended, the discretion invested in· the Judges to impose capital punishment is not
based on any standards or policy required by the Legislature for
imposing capital punishment in preference to imprisonment for
life.
In his submission. this was a stark abdication of essential
legislative function, and. therefore. section 302-lPC is vitiated by
the vice of excessive delegation of essential legislative
function.
Thirdly, he contended, the uncontrolled and unguided discretion
in the Judges to impose capital punishment or imprisonment for
life is hit by Article 14 of the Constitution. because two persons
(i) 1971 s.c. 157.
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JAGMOHAN v. u.P. STATE (Pa/ekar, J.)
founu guilty of murder on similar facts are liable to .be treated
differently-one forfeiting hls life and the other suffenng merely
a sentence of life imprisonment.
Lastly it was contended
that
the provisions of the law do not provide a procedure for trial of
factors and circumstances crucial for making the choice between
the capital penalty and imprisonment for life.
The trial
under
the Criminal Procedure Code is limited to the question of guilt.
In the absence of any procedure established by law in the ma~ter
of sentence, the protection glven by Article 21 of the Constitution
was violated and hence for that reason also the sentence of death
is unconstitutional.
The tirst submission is based on the provisions of Article 19 of
the Constitution.
That Article does not directly deal with
the
freedom to live. It deals with 7 freedoms like freedom of speech
and expression, freedom to assemble peaceably and without arms
etc., but not directly with the freedom to live. It is, however .
.:ontended that freedom to live is basic to all the several freedoms
and since the enjoyment of those seven freedoms is
impossible
without conceding freedom to live, the latter i;:annot be denied by
any law unless such law is reasonable and is required in general
public interest.
It was. therefore, contended that, unless it was
sho\\ n that the sentence of death for murder passed the test of
reasonableness and general public interest, it would not be a valid
law.
W c will assume for the purposes of the present argument that
the right to live is basic lo the freedoms mentioned in Article 19
and that no law can deprive the life of a citizen unless it is reasonable and in the public interest.
The question, therefore, for our
consideration is whether the law. namely, section 302-IPC which
prescribes the sentence of death for murder passes the above test.
In this connection it would be proper to recall the observations of Patanjali Sastri, CJ in State of Madras v. V. G. Row(')
at page 607 : "It is important in this context to bear in mind
that the test of reasonableness, wherever presc{ibed, should be
applied to each individual statute impugned,
and
no
abstract
standard. c·· general pattern, of reasonableness can be laid down
as ap~lic~ble to all cases. The nature of the right alleged to .have
been mfnnged, the underlying purpose of the
restrictions
imposed, the extent and urgency of the evil sought to be remedied
t~ereby, the ~isproportion of the imposition, the prevailing conditions at the ttme, should all enter into the judicial verdict. In
evaluating such elusive factors and forming their own conception
of what is reasonable: in all the circumstances of a given case. it
(I) [1952] S.C.R. 597.
546
SUPREME COURT REPORTS
[1973) 2 s.c.R.
is inevitable that the social philosophy and the scaic of \ alues of
the judges participating in the decision should pl:iy an important
part, and the limit to their interference with legislative judgment
in such cases can only be dictated by their sense of responsibilit)
and self-restraint and the sobering reflection that the Con;titution
is meant not only for people of their way of thinking but for all,
and !hat the majority of the elected representatives of th.; people
have, in authorising the imposition of the restrictions, considered
them to be reasonable." The responsibility of Judges in that resjcct is the greater, since the question as to wh·ether capit~l
~en
tence for murder is appropriate in modern times has raised serious
controversy the world over, sometimes, with emotional 0\ ~rtones.
lt is, therefore, essential that we approach this constitutional question with objectivity and a proper measure of self restraint.
The arguments advanced by Mr. Garg against death penalty
per se were practically similar to those
which were addressed
recently to the Supreme Court of America in the case of Furman
v. State of Georgia
(Nos. 69-5003, 69-5030 and
69-~031
decided on June 29. 1972) and obtained the assent of two Judges.
Mr. Justice Brennan and Mr. Justice Marshall.
in that case the
Judges were invited to reject capital punishment <ln the
ground
that it violated the Eighth Amendment which forbade "cruel and
unusual punishments". Brennan. J. accepted the validity
;:if
the
challenge in these words :
"If a punishment is unusually severe, if there i> a
strong probability that it is inflicted arbitrarily, if it is
substantially rejected by contemporary
justice and
;f
there is no reason to believe that it serves any judicial
purpose more effectively than some less severe puni,h'.
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mcnt, then the due infliction of that punishment violates
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the command of the clause that the State may not inflict
inhuman and uncivilized punishments upon those
cr~-
victed of crimes."
·
Marshall, J. observed as follows :
'There is but one conclusion that can
be
dr~c,,a
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from all of this-i.c., the death penalty is an excessive
and unnecessary punishment which violates the Eighth
Amendment.
The statistical evidence is not convincing beyond all doubt. but. it is
persuasive. It is not
improper at this point to take judicial notice of the
fact that for more than 200 years men have labored to
u
demonstrate that capital punishment serves no purpose
that life imprisonment could not serve equally as weli.
And they have done so with
great success.
Little if .
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JAGMOHAN V. U.P. STATE (Pa/ekar, J.)
any evidence had been adduced to prove the c9ntrary.
The point has now been reached at which deference to
the legislatures is tantamount to abdication of our judicial roles as factfinders. judges, and ultimate arbiters of
the constitution.
We know that at some point the presumption of constitutionality accorded
legislative acts
gives way to a realistic assessment of those acts.
This
point comes when there is sufficient evidence availal•k
so that Judges can determine not whether the legislature acted wisely. but whether it had any rational bask
whatsoever for acting. We have this evidence before us
now.
There is no rational basis for
concluding th3t
capital punishment is not excessive. It therefore violates
the Eighth Amendment."
In another place he observed :
547
··[ believe that the great mass of citizens would conclude on the basis of the material already considered
that the death penalty is immoral and therefore
unconstitutional."
The arguments advanced by Mr. Garg
were
intenJed
to
persuade us to come to the above conclusion
on
the abstract
question as to whether death penalty for murder was
Nnstitutionally permissible.
It is, however. to be noted in the above case of Furman v.
State of Georgia that though the learned Judges by a majority of
5 to 4 set aside the sentences of death with which they were concerned, it was only Brennan and Marshall. JJ. who were prepared
to outlaw capital punishment on the ground that it was an anachronism. degrading to human dignity and unnecessary in modern
life.
The other three Judges namely Mr. Justice Dougla-. Mr.
Justice Stewart and Mr. Justice White who formed the n;~j..irity
along with Brennan and Marshall. JJ. <lid not take the Yi~w that
the Eighth Amendment prohibited capital
punishment
for
all
crimes and under all circumstances. Mr. Justice Douglas. indeed
held, that the death penalty contravened the Eighth Amendment.
But his judgment is not capable of being read as requiring the
final abolition of capital punishment.
Mr. Justice Stewart and
Mr. Justice White merely concluded that the death sentence before them must be set aside because prevailing sentencing prac·
tices did not comply with the Eighth Amendment. The minority
of four Judges (Burger, CJ, Blackmun, Powell and
Rehnquist
JJs) held that death penalty did not contravene the Eighth
Amendment.
Mr. Justice Douglas in reversing the death sentence was of the view that "the Eighth Amend1'.lent re<juired
Jei:,islatures to write penal laws that are even handed, nonsdective. and nonarbitrary, and to require judges to see to it that gene-
548
SUPREME COURT REPORTS
(1973] 2 S,C.R.
ral l;i,ws are not applied sparsely,, selectively, and spottily to unpopular groups.'' As is clear from his judgment Douglas, J was
very much exercised by the fact that the law with regard to death
penalty was being enforced in a discriminatory manner-the victim being mostly the poor and the despised, especially, if he was a
member of a suspect or unpopular minority-Obviously meaning
the Negros.
At the end of the judgment, however, he made it
clear that he was not considering in that case whether mandatory
death penalty would be constitutional if it was enforced evenhand~dly and in non-discriminatory manner. Mr. Justice Stewart
after noting that at least two of his brothers (Brennan and Marshall, JJ) had concluded that the infliction of the death penalty
is constituti0nally impermissible in all circumstances under the
Eighth and Fourteenth Amendments stated "their case is a strong
one.
But I find it unnecessary to reach the
ultimate question
they would decide".
At a later stage he made it clear that "the
constitutionality of capital punishment in the abstract is
not,
however. before us in these cases." Mr. Justice White started
his opinion : "In joining the court's judgment, therefore, I do
not at all intimate that the death penalty is unconstitutional per
se or that there is no system of capital punishment that would
comport with the
Eighth Amendment.
That question,
ably
argued by several of my Brethren. is not pres.!nted by these cases
and need not be decided." It will thus be seen that although the
death sentences in that case were set aside by a majority. three
out oi five Judges who formed the majority did not consider it
necessary to outlaw capital punishment on the social and moral
considerations which prevailed upon the other two Judges namely
Brennan and Marshall. JJ.
In short, even when the court was
presented with a wealth of evidence compiled by Sociologists and
research workers in refutation of the necessity of retaining capital
punishment, only two Judges out of nine could be persuaded to
hold that capital punishment per se is constitutionally impemtlssible.
So far as we are concerned in this country. we do not have.
in our constitution any provision like the Eighth Amendment nor
are we at liberty to apply the test of reasonableness
with the
freedom with which the Judges of the Supreme Court of America
are accustomed to apply "the due process" clause.
Indeed what
is cruel and unusual may. in conceivable circumstances, be regarded
as unreasonable. But when we are dealing with punishments for
crimes as prescribed by law we are confronted with a serious
problem.
Not a few are found to hold that life imprisonment.
especially, as it is "understood in U.S.A. is cruel. .On the other
hand, capital punishment cannot be described as unusual because
that kind of punishment has been with us from ancient times right
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JAGMOHAN v. U.P. STATE (Pa/ekar, J.)
5~9
upto the present day though the number of offences for which it
can be imposed has continuously dwind~ed. The frai~1ers of ?ur
Constitution were well aware of the existence of capital punishment as a permissible punishment under the law.
For example,
Article 72 ( 1 ) ( c) provides that the President shall have power to
grant pardons, reprieves. respites or remissions of punishment. or
to suspend. remit or commute the sentence of any person convicted of any offence "in all cases where the sentence is a sentence of
death''.
Article 72(3) further provides that "Nothing in
subclausc ( c) of clause ( 1 ) shall affect the power to suspend. remit
or commute a sentence of death exercisable by the Governor of a
State under any law for the time being in force."
The obvious
rcfeFence is to sections 40 I and 402 of the Criminal
Procedure
Code.
Then again entries I and 2 in List Ill of the Sewnth
Schedule refer to
criminal law and
criminal
procedure.
In
entry no. I the entry Criminal Law is extended by specifically including therein "all matters included in the Indian Penal Code at
the co~nmcncement of this Constitution''.
All matters not only
referred to offences but also punishments--one of which is
the
death sentence.
Article 134 gives a right of appeal to the Supreme Court where the High Court reverses an order of acquittal
and sentences a person to death.
All these provisions clearly go
to show that the Constitution-makers had recognised the death
sentence as a permissible punishment and had made constitutional
provisions for appeal. reprieve and the like.
But more imporiant
than these provisions in the Constitution is Article 21 which provides that no person shall be deprived of his life except according
to procedure established by law.
The implication is very clear.
Deprivation of life is constitutionally permissible if that is
done
according to procedure established by law.
In the face of these
indications of constitutional postulates it will be very difficult to
hold that capital sentence was regarded per se as unreasonable or
not in the public interest.
Reference was maoe by Mr. Garg to several studies made by
\yestern scholars to show the ineffectiveness of capital punishment
either as a deterrent or as appropriate retribution. There is lar~e
~·olume of evidence compiled in the West by kindly
social
r~
tormers and research workers to confound those who want:to retain the c~pital punishment.
The controversy is not yet ·ended
and expenments are made by suspending the
death
sentence
\\'here possible in order to see its affect. On the other hand most
of t~ese studies _suffer from one grave defect namely
that they
consider all ~urders as stereotypes, the result of sudden passion
or the hke, disregarding motivation in each individual case.
A
large number of murde~s is .und?ubtedly of the comm911
type.
Bu'. some at least are dtabohcal m conception and cruel· in exernt1on. In some others where the victim is a
person of high
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SUPREME COURT REPORTS
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·standing in the country Society is liable to be rocked to its verv
foundation.
Such murders cannot be simply wished
away
bv
finding alibis in the social mal-adjustment of the murderer. Prevalcn.ce of such crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of deterrence but :.;s
a token of emphatic disapproval by the society.
We have grave doubts about the expediency of transplanting
Western experience in our country.
Social conditions are different and so also the general intellectual level.
In the context of
our criminal law which punishes murder, one cannot ignore_ the
foct that life imprisonment works out in most cases to a
dozen
yc"rs of imprisonment and it may be seriously questioned whether
that sole alternative will be an adequate substitute for the death
penalty.
We h<ive not been referred to any large scale studies of
nime statistics compiled in this country with the object of estimating the need of protection of the society against murders. The
only authc1rtative study is that of the Law Commission of
India
pub!ished in 1967.
It is its Thirty-Fifth Report.
After collecting as much available material as possible and assessing the views
expressed in the West both by abolitionists and the
rctentionists
~he Law Commission has come to its conclusion at raras 262 to
264.
These paragraphs are summarized by the Commission_ as
follows at page 354 of the Report :
'The issue of abolition or. retention
has
to
be
decided on a balancing of the various
arguments for
and against retention.
No single argument fo~ .abolition or retention can decide the issue.
Tn arnvmg at
any conclusion on the subject, the need for protecting
society in general and individual human beings must be
borne in mind.
Tt is difficult to rule out the validity,
of, or the
strength khind. many of tl;e arguments for
abolition
nor docs, the Commission treat lightly
the
argument
based on the irrcvocabilily of the
sentence of death.
the need for a modern approach. the severity of capital
punishment. and the strong feeling shown by certain sections of public opinion in stressing deeper questions of
hun1an values.
Havin~ rcoard. however. to the conditions in India.
to the variety ~f the social upbringing of its inhabitants.
to the disparity in the level of morality and education
in the country, to the vastness of its area, to the diversity of its population and to the paramount need for
maintainino law and order in the country at the present
juncture, T~dia cannot risk the experiment of abolition
.Of caoital punishment.
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Arguments which would be valid in respect of one
area of the world may not hold good in respect of another area, in this context.
Similarly, even if abolition in some parts of India may not make a material
difference, it may be fraught with serious consequences
in other parts.
On a consideration of all the issues involved,
the
Commission is of the opinion, that capital punishment
should be retained in the present state of the country."
A very responsible body has come to the ~bove 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.
In dealing with the question of reasonableness,
we
cannot
ignore the procedural safeguards provided by the statute.
An
acc1·sed charged for murder is first put up before a Magistrate
who on an examination of the evidence commits him to the Court
of Sessions for trial.
The accused knows at this stage what is
the evidence against him.
The trial is conducted before a Sessions Judge or an Additional Sessions Judge with
considerable
experience in the trial of criminal cases.
If the Sessions Judge,
after trial, comes to the conclusion tnat the accused is guilty of
murder and deserves to be sentenced to death, he is required·
up.der section 374 of the Criminal Procedure Code to submit to
the High Court the proceedings before him and it is the High
Court which has to review the whole evidence and consider
whether the sentence of death passed by the Sessions Judge should
be confirmed. The rule under section 378 is that this review of
the evidence shall be made by a bench of not less ihan two Judges.
If the sentence of death is. confirmed, the accused can in appropriate cases appeal to the Supreme Court by special leave.
In
cases where the Sessions Judge acquits the accused of murd~r but
the High Court in appeal sets aside the acquittal and sentences
him to death, the accused is entitled under the Constitution to
prefer an appeal as of right to this Court.
It will be thus seen
that there are inbuilt procedural safeguards against
any
hastv
decision.
'
'
.
As is well known. the subject of capital punishment is a difficult and controversal subject. long and hotly debated.
It has
evoked strong views.
In that state of affairs if the Leoic;lature
decides to retain capital pnnishment for murder. it will 11'e dilli-
~ult for this Court in the absence of objective evidence regardin~
ns unreasonableness to question the wisdom and propriet\· of the
Legislature in retaining it.
A Bill for the abolition o( c,1pit:ii
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punishment was introduced in the Lok Sabha in 1956 but the
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same was rejected on November 23, 1956.
Similarly a resolution for the abolition of capital punishment was introduced in the
Rajya Sabha in 1958 but the same was withdrawn after debate.
Later in 19 61 a similar resolution was moved in the Rajya Sabha
but the same was negatived in 1962. A resolution for its abolition was discussed in the Lok Sabha but the same was withdrawn
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after discussion. All this goes to show that the representatives of
the people do not welcome the prospect of abolishing capital
punishment. In this state of affairs, we are not prepared to conclude that capital punishment, as such, is either unreasonable or
not in the public interest.
The next contention of Mr. Garg was that by providing in
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section 302-IPC that one found guilty thereunder is liable to be
punished either with death sentence or imprisonment for life, ihe
legislature has abdicated its essential function is not providing by
legislative standards in what cases the Judge ~hould sentence the
a.ccused to death and in what cases he should sentence him only
to life imprisonment. It may be noted here that prior to the
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Amending Act 26 of 1956, section 367(5) of the Criminal Procedure Code read as follows :
"If the accused is convicted of an offence punishable with death and the court's sentences him to any
punishment other than death, the court shall in its judgment state the reason why sentence of death was not
μassed."
By the amendment this provision is deleted and, as the Code at
present stands, punishment for murder is one of the two--namely
death or imprisonment for life. Neither section 302-IPC nor any
other provision in the Criminal Procedure Code says in what
cases the capital punishment is to be imposed and in what others
the lesser punishment. It is, therefore, argued by Mr. Garg that
th~ Legislature has left this awful duty to the Judge or Judges
concerned without laying down any standards to guide .them in
their decision.
In fact he says the Legislature has abdicated its
legislative function and this delegation of its power to the Judges
is vitiated by the vice of excessive delegation. We think there is
no merit in this submission. In this connection we have to take
note of the policy of the law with regard to crimes and their
punishments.
The position in England is stated by Halsbury in
Laws of England, Third Edition, Volume 10 at page 486. The
relevant portion of para 888 is as follows :
"DISCRETION OF COURT AS TO PUNISHMENT
In all crimes except those for which the sentence of
death must be pronounced a very wide discretion in the
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matter of fixing the degree of punishment is allowed to
the Judge who tries the case.
The policy of the law is, as r~gards most crimes, to
fix a maximum penalty, which is intended only for the
worst cases, and to leave to the discretion of the judge
the detennination of the extent to which in a particular
case the punishment awarded should approach to or recede from the maximum limit. The exercise of this discretion is a matter of prudence and not of law, but an
appeal lies by the leave of the Court of Criminal Appeal
against al)y sentence not fixed by law, and if leave is
given, the sentence can be altered by that court. Minimum penalties have in some instances been prescribed
by the enactment creating the offence."
553
The position in India is practically the same. The exception
made in English Law with regard to the sentence of death does
not hold good in India. The policy of our criminal la\\' as regards all crimes, including the crime of murder, is to fix a maximum penalty-the same being intended for the worst cases, leaving a very wide discretion in the matter of punishment to the
Judge. In England, murder and treason were offences for which
the death sentence was mandatory. If after trial the accused was
found guilty by the Jury, neither the Jury nor the Judge had any
discretion in the matter of sentence. The Judge had to sentence
the accused to death. The sentence may be reprieved by the
Home Secretary after taking all the circumstances of the. caS<! and
other matters into consideration. But that was no
part of the
judicial process.
Absence of any discretion with regard to the sentence raised
strong cliticism in England because it was recognised, as was done
in many other countries. that death penalty was not the only appropriate punishment for 1'nurder.
A Royal
Commission
was
thereupon appointed in 1949 to consider
and
report
whether
liability under the Criminal Law in Great Britain to suffer capital
punishment for murder should be limited or modified and if so
to what extent and by what means.
In its report published in
1953 the Commission found it impossible to improve the position
either by re-defining murder or, hy dividing murder into degrees.
In para 535 of the Report it pointed out that "the general liability
under the existing law to suffer capital
punishment for murder
cannot be satisfactorily limited by such means. U.e.
re-defining
murder or dividing murder into degrees) because no legal definition can cover all the multifarious considerations. relating to the
offender as well as to his crime, which ought to be taken into .
account in deciding whether the supreme penalty should be exact·
ed in each individual case." The Commission considered variom
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alternatives-one of them being a provision on the lines of section
302-IPC which was pressed with great force by Sir John Beaumoni-a former Chief Justice of the Bombay High Court, and
later a Privy Councillor. He pressed on the Commission the advisability of leaving it to the Judge whether the death sentence
should be imposed or the lesser sentence, adding further that this
procedure had worked quite well in India for generations
and
there was no reluctance on the part of the Judges to assume the
responsibility to pass the death sentence. The Judges in.England,
however, unanimously Tefused to
accept 8uch a responsibility.
The q1.1estion then arose whether the responsibiltiy for the death
sentence may be given to the Jury .as was done in some of the
States in America. The Royal Commission fell in with this suggestion and expressed itself as follows (See para 595
of the
Report).
"It is not questioned that the liability to suffer capital punishment under the existing law is rigorous to
excess.
We cannot but regard it as a reproach to our
criminal law that this excessive rigour should be tolerated merely because it is corrected by executive action.
The law itself should mitigate it. We have been forced
to the conclusion that this cannot be done by a redefinition of murder or by dividing murder into degrees.
No formula is possible that would provide a reasonable criterion for the infinite variety of circumstances
that may affect the gravity of the Crime of murder.
Discretionary judgment on the facts of each case is the
only way in which they can be eqnitably distinguished.
This conclusion is borne out by American experience :
there the experiment of degrees of murder, introduced
Jong ago, has ha~ to be supplemented by giving to the
courts a discretion that in effect supersedes it.
Such
a discretion, if it is to be part of the legal process. and
not an act of executive clemency, must be given either
to the Judge or to the jury. We find that the Judges in
this country. for reasons· we respect, would be mosf reluctant to assume this duty. There remains the method
of entrusting it to the jury. We are satisfied that as long
as capital punishment is retained this is the only practicable way of correcting the outstanding defects of the
existing law."
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In India the difficulty encountered by the Commission had
been overcome long ago and it is accepted by the public that only
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the foJges shall decide the sentence. Where an error is committed
in the matter of sentence the sJme is liable to be corrected by
appeG!s and revisions to higher courts for which appropriat~ pro-
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vision was n-.ade in the Criminal Procedure Code. The structure
of our criminal law which is principally contained in the Indian
Penal Code and the Criminal Procedure Code underlines
the
policy that when the Legislature has defined an offence with sufficient clarity and prescribed the maximum punishment therefor, a
wide discrcticn in the matter of fixing the degree of punishment
should be allowed to the Judge.
As pointed out by Ratanlal in
his Law of Crimes, Twenty-Second Edition page 93 "The authors
of 1he Code had, in many cases not heinous, fixed a minimum as
wdl as a maximum punishment.