Rajendra Prasad Vs. State of Uttar Pradesh [1979] INSC 33 (9 February 1979)

KRISHNAIYER, V.R.

DESAI, D.A.

SEN, A.P. (J)

CITATION: 1979 AIR 916 1979 SCR (3) 78 1979 SCC (3) 646

CITATOR INFO:

R 1979 SC 964 (1,23,27,28,29) E 1979 SC1384 (2,10,11,13,14,15,20,22,23,24, O 1980 SC 898 (4,5,6,7,8,142,198,202) MR 1982 SC1325 (19,20,26,38,40,61,67,72,78) RF 1983 SC 361 ((2)10)

ACT:

Penal Code-5. 302-Scope of-death Sentence-When should be award

HEADNOTE:

(Per majority-Krishna Iyer and Desai, JJ.)

1. The only question before the Court is as to when and why shall capital punishment be pronounced on a murderer and why not in other cases, within the confines of the Code.

Urgency to the solution is obvious. The overt ambivalence and covert conflict among judges concerning continued resort to the death sentence mirrors the uncertainties and conflicts of values in the community itself. [89G & 90D]

2. Section 302 of the IPC throws little light on when the court shall be the sentence of why the lesser penalty shall be preferred. Since law reflects life, new meanings must permeate the Penal Code. Deprivation of life under our system is too fundamental to be permitted except on the gravest ground and under the strictest scrutiny. [90F: 94C- D]

3. To say that discretion of the Judge passing the sentence under s. 302 IPC is guided by well-recognized principles shifts the issue to what those recognised rules are. The big margin of, subjectivism. a preference for old precedents, theories of modern penology, behavioral emphasis or social antecedents, judicial hubris or human rights perspectives, reverence for outworn social philosophers-this plurality of forces plays a part in swining the pendulum of sentencing justice erratically. Until Parliament speaks, this Court cannot be silent. [95; 97G]

4. Executive commutation is no substitute for judicial justice, at best it is administrative policy and at worst pressure-based partiality. The criteria for clemency are often different [99C]

5. In so far as s. 302 IPC is concerned several attempts had been made to restrict or remove death penalty but never to enlarge its application. Parliamentary pressure has been to cut down death penalty, although the section formally remains the same. In the case of the Criminal Procedure Code the legislative development has shifted the punitive centre of gravity from life taking to life sentence. In other words, the legislative trend seems to be while formerly the rule was to sentence to death a person who is convicted for murder, it is now to impose a lesser sentence for reasons to be recorded in writing. Formerly, capital punishment was to be imposed unless special reasons could be found to justify the lesser sentence. After 1955 courts were left equally free to award either sentence. The 1973 Code has made an an mistakable shift in legislative emphasise under which life imprisonment for murder is the rule and capital sentence the exception for reasons to be stated. [101D:104B-C] 79

6. Criminologists all the world over, however, argued that death has decisively lost the battle, and even in our Codes it has shrunk into a weak exception. What are the exceptional cases ? Personal story of an actor in a shocking murder, if considered, may bring tears and soften the sentence. He might have been a tortured child, an ill- treated orphan, a jobless man or the convict's poverty might be responsible for the crime. [106G: 107B] 7. In the post Constitution period s. 302 IPC and s.

345(3) of the Cr. P.C. have to be read in the humane light of Parts III and IV illumined by the Preamble to the Constitution. In other words the sacrifice of a life sentence is sanctioned only if otherwise public interest and social defence and public order would be smashed irretrievably. Such extraordinary grounds alone constitutionally qualify as special reasons. One stroke of murder hardly qualifies for this drastic requirement, however gruesome the killing may be. The searching question the Judge must put to himself is what is so-extra-ordinari- ly reasonable as to validate the wiping out of life itself and with it the great rights which inhere in him in the totality of facts. [121F; 110E-F]

8. The retributive theory has had its day and is no longer valid. Deterrence and reformation are the primary social goals which make deprivation of life and liberty reasonable as penal penacea. [122C]

9. The current ethos, with its strong emphasis on human rights and against death penalty, together with the ancient strains of culture spanning the period from Buddha to Gandhi must ethically inform the concept of social justice which is a paramount principle and cultural paradigm of our Constitution [l22C-D]

10. The personal and social, the motivational and physical circumstances, of the criminal are relevant factors in adjudging the penalty as clearly provided for under the Code of 1973. So also the intense suffering already endured by prison torture or agonishing death penalty hanging over head consequent on the legal process. [112D-El

11. Although the somewhat obsolescent Mc'Naughten Rules codified in s. 84 of the Penal Code alone are exculpatory, mental imbalances, neurotic upsets and psychic crises may be extenuatory and the sense of diminished responsibility may manifest itself in judicial clemency of commuted life incarceration. [l22F]

12. The social justice which the Preamble and Part IV (Art. 38) highlight, as paramount in the governance of the country has a role to mould the sentence. If the murderous operation of a die-hard criminal jeopardizes social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated.

One test for imposition of death sentence is to find out whether the murderer offers such a traumatic threat to the survival of social order. Some of the principles are-never hang unless society or its members may lose more lives by keeping alive an irredeemable convict. Therefore social justice projected by Art. 38 colours the concept of reasonableness in Art. 19 and non-arbitrariness in Art. 14.

This complex of articles validates death penalty in limited cases. Maybe train dacoity and bank robbery bandits reaching menacing proportions, economic offenders profit killing in an intentional and organised way, are such categories in a Third World setting. [112D: 114C: 112G] 80

13. Survival of an orderly society without which the extinction of human rights is a probability compels the higher protection of the law to those officers who are charged with the fearless and risky discharge of hazardous duties in strategic situations. Those officers of law, like policemen on duty or soldiers and the like have to perform their functions even in the face of threat of violence, sometimes in conditions of great handicap. If they are killed by designers of murder and the law does not express its strong condemnation in extreme penalisation, justice to those called upon to defend justice may fail. This facet of social justice also may in certain circumstances and at certain stages of societal life demand death sentence.

[123D-E]

14. Special reasons necessary for imposing death penalty must relate not to the crime as such but to the criminal. [124E] Jagmohan Singh v. State of U.P., [1973] 1 SCC 20; Ediga Annama v. State of A.P., [1974] 4 SCC, 443; Sunil Batra v.

Delhi Admn., [1978] 4 SCC 494 at 569 & 572; referred to.

Capital punishment in India; The Impact of the Ediga Anamma, by Prof. A. R. Blackshield-(July 1977), referred to.

Rajendra Prasad's case:

The family to which the appellant and the deceased belonged were on inimical terms. The appellant who was the son of one of the families murder ed the deceased. After some years in the prison, he was released on Gandhi Jayanti day. On return some minor incident ignited his latent feud and he stabbed to death a friend of the opposite family, he was sentenced to death.

The second murder is not to be confounded with the persistent potential for murderous attacks by the murderer.

This was not-a menace to the social order but a specific family feud. Here was not a youth of controllable violent propensities against the community but one whose paranoid preoccupation with a family quarrel goaded him to go the rival. So long as the therapeutic processes are absent from prisons these institutions, for from being the healing hope of society, prove hardening schools to train desperate criminals. Desperate criminal is a convenient description to brand a person. Seldom is the other side of the story exposed to judicial view. There is nothing on record to suggest that the appellant was beyond redemption; nothing on record hints at any such attempt inside the prison. The appellant showed no incurable disposition to violent outbursts against his fellow-men. There is therefore, no special reason to hang him. He should be awarded life imprisonment.

Kunjukunju's case:

The appellant, a married man with two children, developed illicit sex relations with a fresh girl. In order to win her hand he murdered his wife and two children. There is no evidence to show that he was a desperate hedonist or randy rapist. He is not a social security risk altogether beyond salvage by therapeutic life sentence. Death sentence is commuted to life imprisonment.

Dubey's case:

The appellant, a young man, aged about 20, stabbed to death three members of the family with whom his family had a quarrel over partition of 81 property. It is illegal in this case to award capital sentence without considering correctional possibilities inside prison. He was not a murderer born but made by the passion of family quarrel. He could be saved for society with correctional techniques and directed into repentance. A family feud, an altercation, a sudden passion, although attended with extraordinary cruelty, young and malleable age, reasonable prospect of reformation and absence of any conclusive circumstance that the assailant is a habitual murderer or given to chronic violence-these catenate of circumstances bearing on the offender call fol the lesser sentence.

Sen l. (Dissenting)

1. (a) It is constitutionally and legally impermissible for the Supreme Court while hearing an appeal by special leave under Art. 136 of the Constitution, on a question of sentence, to restructure s. 302 of the Indian Penal Code , 1860 or s. 354, sub-s. (3) of the Code of Criminal Procedure 1973, so as to limit the scope of the sentence of death provided for the offence of murder under s. 302. [131F-G] (b) The question whether the scope of the death sentence should be curtailed or not, is one for the Parliament to decide. The matter is essentially of political expediency and, as such, it is the concern of statesmen and, therefore, properly the domain of the legislature, not the judiciary. [137E] (c) In an appeal confined to sentence under Article 136 of the Constitution, Supreme Court has not only the power but as well as the duty to interfere if it considers that the appellant should be sentenced 'differently', that is, to set aside the sentence of death and substitute in its place the sentence of imprisonment for life, where it considers, taking the case as a whole, the sentence of death to be erroneous, excessive or indicative of an improper exercise of discretion; but at the same time, the Court must impose some limitations on itself in the exercise of this broad power. In dealing with a sentence which has been made the subject of an appeal, the Court will interfere with a sentence only where it is 'erroneous in principle'. The question, therefore, in each case is whether there is an 'error of principle' volved.[134G-Hl (d) The Court has the duty to see that on the particular facts and circumstances of each case the punishment fits the crime. Mere compassionate sentiments of a humane feelings cannot be a sufficient reason for not confirming a sentence of death but altering it into a sentence of imprisonment for life. In awarding sentence, the Court must, as it should, concern itself with justice, that is, with unswerving obedience to established law. It is, and must be, also concerned with the probable effect of its sentence both on the general public and the culprit. Judges are not concerned with the morales or ethics of a punishment. It is but their duty to administer the law as it is and not to say what it should be. It is not the intention of the Supreme Court to curtail the scope of the death sentence` under s. 302 by a process of judicial construction inspired by the personal views [35B: 137D-E]

2. It is also-not legally permissible for this Court while hearing an appeal in a particular case where a capital sentence is imposed, to define the expression "Special reasons" occurring in sub-s. (3) of s. 354 of the Code, in such 82

virtually has the effect of abolishing the death sentence.

[137H] (a) Under s. 354, sub-s. (3) of the Code of Criminal Procedure, 1973, the Court is required to state the reasons for a sentence awarded, and in the case of imposition of a sentence of death the Judge has to record "special reasons" for imposing death sentence. Punishment for murder as a rule should be life imprisonment and death sentence is only an exception. [l59A] (b) It is neither feasible nor legally permissible for this Court to give a definite connotation to the expression "special reasons" occurring in s. 354 sub-s. (3) of the Code of Criminal Procedure, 1973. It is difficult to put "special reasons" in a straight-jacket. Each case must depend on its own particular facts. The question of sentence must be left to the discretion of the Sessions Judge trying the accused.

Under the present Code, a trial for murder is divided into two stages. There is a bifurcated trial. The first part of the trial is directed solely to the issue of guilt or innocence, and concludes with the finding of the Sessions Judge on that issue. At the end of the trial when he comes to a conclusion of guilt, he has to adjourn the case for hearing the accused on the question of sentence. [159C-D] Section 235, sub-s. (2) of the Code specifically provides for an opportunity of hearing to the accused on the question of sentence after a verdict of guilt is recorded against him. The burden is upon the prosecution to make out a case for imposition of the extreme penalty. Where a sentence of death is passed, the Sessions Judge has to make a reference to the High Court under s. 366, sub-s. (1) of the Code. Under s. 367, sub-s. (1) if the High court thinks a further inquiry should be made into, or additional evedence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Sessions. In a case submitted under s.

366, the High Court under s. 368(a) may either confirm the sentence, or pass any other sentence, i.e. reduce the sentence of death into a sentence of imprisonment for life.

thereafter an appeal lies to this Court by a special leave under Article 136 on the question of sentence. [159E-H] Failing the appeal, there is the President's power to grant reprieve and pardon under Article 72 (1), as well as the Governor's power of commutation under Article 161 of the Constitution which is a sovereign function. The power of the President and of the Governor to grant reprieves and pardons is wide enough to include the power to commute and to remit sentence of punishment. All cases of capital punishment are closely scrutinised by the Executive at both the levels to see whether there are such extenuating circumstances as would justify a reprieve, and the power to commute a death sentence is freely exercised, whenever there is some doubt as to the severity of the punishment. Under the present system the Prerogative of Mercy in the case , of persons under sentence of death works well and it produces results gene rally regarded as satisfactory. It helps in mitigating the rigour of the death sentence, particularly in case of those murderers whose execution would offend the public conscience. Very few persons under a sentence of death-may be one or two in a year, in a State are usually executed. It is, therefore, not proper for the Court to trench upon the President's or the Governor's perogative to grant pardon or reprieve under Articles 72(1) and 161 in taking 83 upon itself the task of commutation of a death sentence, which is properly imposed, in the facts and circumstances of a particular case, merely because there is a doubt that the Executive may commute the sentence ultimately, or by one's views as to the utility of death penalty. [160A-E] Balwant Sing case [1976] 2 SCR 684; Ambaram's Case 11974] 4 SCC 298 and Sarveshwar Prasad Sharma's case 11978] 1 SCR 360; referred to.

(c) Judges are entitled to hold their own views, but it is the bounden duty of the Court to impose a proper punishment, depending upon the degree of criminality and the desirability to impose such punishment as a measure of social necessity, as a means of deterring other potential offenders. It is only in very grave cases where it is a crime against the society and the brutality of the crime shocks the judicial conscience that the Court has the power, as well as the duty, to impose the death sentence. In view of these adequate safeguards, it can hardly be asserted that the sentence of death provided for an offence of murder punishable under s. 302, is 'dehumanizing' or that it is 'unnecessary'. Where the crime is cruel and inhuman a death sentence may be called for. [160F-H] Ediga Anamma, [1974] 4 S.C.C. 443; Bishan Das & Ors. [1975] 3 S.C.C. 700; referred to.

(d) If Parliament thought it right to give to the Judges discretion as to the sentence, they would not or ought not to shrink from their onerous responsibility. It would not be appropriate to curtail the ambit of their discretion by judicial process. A sentence of a wrong type, that is, to substitute a sentence of imprisonment for life where the death sentence is called for, causes grave miscarriage of justice. A sentence or pattern of sentences which fails to take due account of gravity of the offence can seriously undermine respect for law. [164E-F] (e) In the three cases there were 'special reasons' within the meaning of s. 354, sub-s. (3) of the Code of Criminal Procedure, 1973 for the passing of the death sentence in each and, therefore, the High Courts were justified in confirming the death sentence passed under s. 368(a) of the Code. Indeed, they are illustrative of the rate type of cases, that is, first degree murders, where a death sentence is usually awarded in any civilised country.

These were cases of diobolical, cold-blooded brutal murders of innocent persons, that is, first degree murders of extreme brutality or depravity. The inhumanity of some of the offences defied belief Any interference with the sentence of death, would be wholly unwarranted in each case.

[l64G] (f) It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. Failure to impose a death sentence in such grave cases where it is a crime against the society-particularly in cases of murders committed with extreme brutality, will bring to nought the sentence of death provided for by s. 302 of the Indian Penal Code , 1860. To allow the appellants to escape with the lesser punishment after they had committed such intentional, cold-blooded deliberate and brutal murders will deprive the law of its effectiveness and result in travesty of justice. [l68A-B] 84 (g) In these appeals it cannot be asserted that the award of death sentence to the appellants was "erroneous in principle". Nor can it be said that the sentence of death passed on them was arbitrary or excessive or indicative of an improper exercise of discretion. [167H] (i) Rajendra Prasad's case is destructive of the theory of reformation. The 'therapeutic touch' which it is said is the best way of preventing repetition of the offence has been of no avail. Punishment must be designed so as to deter, as far as possible from commission of similar offences. It should also serve as a warning to other members of society. In both respects, the experiment of reformation has miserably failed. There is no doubt, with the commutation of his death sentence, the accused will commit a few more murders and he would again become a menace to the community. [165G] (ii) In Kunjukunju Janardhan's case the accused, who acted as a monster, did not even spare his two innocent minor children in order to get rid of his wife and issues through her. The death sentence was the only and appropriate penalty which should be awarded in such a case. [166D] (h) There is no inexorable rule that either the extreme youth of the accused or the fact that he acted in a heat of passion must always irrespective of the enormity of the offence or otherwise be treated as a sufficient ground for awarding the lesser punishment. The Court has to take into consideration all the circumstances which do not merit the extreme penalty. In the facts and circumstances of this particular case i.e. Sheo Shanker . Dubey's case these factors cannot outweigh other considerations. Three precious lives have been lost by the dastardly act of the accused. A family has ` been wiped off. The death sentence was clearly called for in this case-E firstly, as a threat or warning to deter potential murderers, and secondly as the guarantee against the brutalisation of human nature. All facts and circumstances, constitute 'special reasons' why the accused should be sentenced to death. [167E-Fl

3. It cannot be said that imposition of death penalty, except in the classes of cases indicated in the majority Judgment would be violative of Articles 14,19 and 21 of the Constitution. Such a question really does not arise forconsideration. [136G] (a) The citizen's right to life and personal liberty are guaranteed by Article 21 of the Constitution irrespective of his political beliefs, class, creed or religion. The Constitution has, by Article 21 itself forged certain procedural safeguards for protection to the citizen of his life and personal liberty. The idealistic considerations as to the inherent worth and dignity of man is a fundamental and prevasive theme of the Constitution, to guard against the execution of a citizen for his political beliefs. [136C-D] (b) A patriot cannot be equated with an ordinary criminal. A humanistic approach should not obscure one's sense of realities. When a man commits a crime against the society by committing a diabolical, cold-blooded, pre- planned murder, of an innocent person the brutality of which shocks the conscience of the Court, he must face the consequences of his act. Such a person forfeits his right to life. [136E3] 85 Jagmohan Singh v. State of U.P. [1973] 2 S.C.R. 541 followed.

Furman v. Georgia, 408 U.S. 238, 33 L. ed, 2nd 346 explained and differed from.

Michael de Freites v. Gaorgie Ramouter Benny, L.R. [1975] AC 39; quoted with approval.

(c) If the Courts were to be guided by the classification for inflicting death penalty only in the case of three categories of criminals, namely, (i) for white collar offences (ii) for anti-social offences, and (iii) for exterminating a person who is a menace to the society, that is, a 'hardened murderer', the death sentence for an offence of murder punishable under section 302, for all practical purposes would be virtually non-existent. Unfortunately our penal laws do not provide for death sentence for either white collar crimes or anti-social offences. As regards 'hardened' murderers, there are few to be found. Many murders unfortunately go undetected and many a brutal murderer has to be acquitted for want of legal evidence bringing his guilt beyond reasonable doubt. Nevertheless, when the guilt is proved, the Court should leave aside all humanitarian considerations if the extreme penalty is called for. A 'professional' murderer must, as matter of course, be sentenced to death because he is menace to the society.

Whatever sympathy the Court can have should be reserved for the victims of the crime rather than for the perpatrators.

In such cases, the law must take its course. [162B-E; 163C- D]

4. The criminality of a crime consists not only in the criminal act but in what that signifies. Its immediately apparent features, the obvious damage to person or property or to public security, are symptoms of a deeper disorder. It betokens, and it fosters, an attitude in man to man, of reckless selfishness, decit or malice, which is incompatible in the long run with any decent social life. In any advanced society it is, in part at least, on account of this wider character, less easily discerned, that the graver offence are Punished. [l43E-F] (a) All punishment properly implies moral accountability. It is related to injury and not only to damage or danger however greater. Capital punishment does so in an eminent degree. It is directed against one who is ex- hypothesi an inhuman brute, i.e. it is imposed simply to eliminate who is held to have become irretrievably, a. Iiability or a menace to society. [142E] (b) Punishment like crime has a dual character. The penalty which the convicted murderer incurs is not simply death, but death in disgrace and death as a disgrace. In so far as capital punishment is a threat, the threat consists not only in death but in infamy. Any theory which ignores this characteristic is certainly defective. [l43F] Sir Walter Moberly The Ethics of Punishment Ch. Xl Capital Punishment pp. 271-81: referred to.

(c) Punishment inflicted by the State in response to a violation of criminal law has been justified in various ways namely, as society's vengeance upon the criminal as atonement by the wrong-doer, as a means of deterring other criminals, as protection for the law-abiding and as a way of rehabilitating the criminal.

86 Theories of rehabilitation are largely speculative, since there is lack of scientific evidence to support them, though it has been influential in the development of modern penology.[144A-B]

5. (a) The capital punishment controversy falls within the strict limits of 'independent' parliamentary law-making, and is a typical or representative of the kind of problems that leaders of Parliament face every day. In short, the case for abolition of the death sentence is political, not constitutional, The Government carries the responsibility of law and order. That is the first` and fundamental duty of any Government. The Executive has the duty of advising the Government of the laws it believes necessary for the national wellbeing. It is the duty of the Court, including this Court, to administer the laws as they are. [l57D-E] (b) Analysing the substantive merits of the cases for and against the death penalty for murder is essentially a question for the Parliament to resolve and not for the Supreme Court to decide. Therefore, it would not be proper for the Judges to attempt to project their personal views in a matter which lies in the realm of political decision- making, by focussing on a single controversy, the question of the proper penalty for the crime of murder. [157B] (c) Any justification for the capital sentence, as for other salient features of the penal system must be sought in the protection of the society and that alone. [145E] Even where it has been legally retained, as in India, Capital Punishment is now seldom employed except in very grave cases where it is a crime against the society and the brutality of the crime shocks the judicial conscience.

Indeed the death penalty satisfies the society's retributive goals and is still presumed to be a deterrent to potential offenders Of the three purposes commonly assigned to punishment-retribution, deterrence and reformation- deterrence is generally held to be the most important, although the continuing public demand for retribution cannot be ignored. Prima facie, the death sentence is likely to have a stronger affect as a deterrent upon normal human beings than any other form of punishment. People are believed to refrain from crime because they fear punishment.

Since people fear death more than anything else, the death penalty is the most effective deterrent. [146C-E] (d) If the appeal of capital punishment were merely to fear of death, it would be a very inefficient protector of society. In civilized society and in peace time, government relies for obedience more on its moral prestige than on violent repression of crime. Punishment only protects life effectively if it produces in possible-murderers, not only fear of the consequences of committing murder, but a horrified recoil for the thing itself It can only achieve, this, more ambitious, task, if sentence of death is felt to embody society's strongest condemnation of murder and keenest sense of its intolerable wickedness. It is not by the fear of death but by exciting in the community a sentiment of horror against any particular act, that the offenders could be deterred from committing it. [143B-C] Royal Commission on Capital Punishment Para 59:

referred to.

(e) The punishment of death should reflect adequately the revulsion felt for the gravest of crimes by the great majority of citizens. Legislators and Judges:

87 share this revulsion themselves; otherwise indeed their action would be morally indefensible. Their aim then should be, not only to strike terror nor even to awaken popular indignation in a direction convenient to Government. It would be to arouse in all and sundry their Own indignant repudiation of a wicked act and at the same time, to deepen it in themselves. In this vain sentence of death has been pronounced, carried out and acclaimed with stern satisfaction. Otherwise the conscience of the community would be revolted if the criminals were allowed to live.[145F-G] 6.(a) The theory that (i) the death penalty is per se cruel and unusual punishment and (ii) alternatively the inordinate delay in carrying it out makes it so has now been completely destroyed by two recent decisions of the Privy Council.[149F] Eaton Baker v The Queen, L.R. [1975] AC 774 Freites v. George Ramouter Benny, LR [1975] AC 239; discussed.

(b) in the United States of America also the death penalty has practically existed more or less harmoniously with humane theories of criminal justice for over two hundred years (e.g). [151E] (i) In Trop v. Dulles, [1958] 356 US 86, L. ed. 630, the Court refused to consider the death penalty as an indent of the constitutional limit of punishment; (ii) In Mc Gouths v. California, [1971] 402 U.S. 183, it was held that the absence of any guidelines was not a violation of "due process" and (iii) In Furman v. Georgia the multiple opinions did not rule out altogether re-imposition of the death penalty in the future provided there was legislative structuring of a permissible system providing for sufficient procedural safeguards; (iv) Later on, the death penalty has been reimposed and this judicial approach stood reoriented.

The constitutionality of the death-penalty was supported by four factors (1) the reference to capital punishment in the Constitution (ii) the past Supreme Court decisions on the death penalty (iii) the limitations of judicial restraints and (iv) the doctrine of separation of powers. [151F; 152D;

154E] M. Cherif Bassi Owni; Substantive Criminal Law p. 120- 128; referred to and (v) In Gregg v. Georgia, [1976] 428 U.S. 153; 49 L.ed.

2d. 859; Proffit v. Floride, [1976] 428 242; 49 L.ed. 2nd.

913; Jurek Texas, [1976] 428 US 262; 49 L.ed. 2nd, 929-all concerned with discretionary sentencing procedures- and in Woodson v. North Carolina, [1975] 428 US 280; 49 L.ed. 944 and Roberts v. Lonisiana [1976] 428 US 326; 49 L.ed. 2d 974- both concerned with mandatory death sentence-it was held that (a) the punishment of death did not invariably violates the Constitution (b) history and precedent did not support the conclusion that the death sentence was per se violation of 8th and 14th Amendments (c) the evolving standards of decency arguments had been substantially under cut in the last four years because a large segment of the enlightened population regarded the death penalty as appropriate and necessary as seen in the new legislation passed in response to Furman (d) the death penalty was not inherently cruel and unusual. It served two principal social purposes retribution and deterrence, and therefore the death sentence for the crime of murder was (1) not without justification (2) not unconstitutionally severe and (3) not invariably disproportionate to the crime and (e) that Furman mandated, where discretionary sentencing was used, there must be suitable direction and 88 limitation to minimise the risk of wholly and arbitrary and capricious action, the bifurcated trial with standards modelled after the Modern Penal Code juries gave just such guidance. [155F-G; 156A] Observation:

If there has to be a law reform at all, some regard must be had to the plight of the victim or his or her family by making provision for payment of compensation. While it is commonly accepted that these convicted of violations of the criminal law must "pay their debt to society, little emphasis is placed upon requiring offenders to "pay their debt" to their victims. These again are matters for the Parliament to Provide.] & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 512 of 1978.

Appeal by Special Leave from the Judgment and Order dated 12-9-74 of the Allahabad High Court in Criminal Appeal No. 501/74.

AND CRIMINAL APPEAL NO. 513 of 1978 Appeal by Special Leave from the Judgment and Order dated 9-1-1978 Kerala High Court in Crl. A. No. 213/77 and Ref. Trial No. 3/77.

AND CRIMINAL APPEAL NO. 513 of 1978 Appeal by special leave from the Judgment and Order dated 28-9-77 of the Allahabad High Court in Criminal Appeal No. 261/73 and Reference No. 6/77.

R. K. Garg for the Appellant in Crl. A. No. 513/78.

S. K. Bagga, Amicus Curiae for the Appellant in Crl.

A.512/78 P. K. Pillai, Amicus Curiae for the Appellant in Crl.

A. No. 511/78 D. P. Uniyal and M. V. Goswami for the State of U.P.

K.R. Nambiar for the State of Kerela.

The Judgment of Krishna Iyer and Desai, JJ. was delivered by Krishna Iyer, J.; Sen, J. gave a dissenting opinion.

KRISHNA IYER, J.

THE DEADLY QUANDARY To be or not to be: that is the question of lethal import and legal moment, in each of these three appeals where leave is confined to the 89 issue of the propriety of the impost of capital penalty against which the brutal culprits desparately beseech that their dear life be spared by the Summit Court and the incarceratory alternative be awarded instead. There is, as here, a judicial dimension to the quasi-Hamletian dilemma when "a murder most foul" demands of sentencing justice punitive infliction of death or the lesser punishment of life imprisonment, since the Penal Code leaves the critical choice between physical liquidation and life-long incarceration to the enlightened conscience and sensitized judgment of the Court.

A narration of facts is normally necessary at this early stage but we relegate it to a later part, assuming for the nonce the monstrosity the murder in each case. Is mere shock at the horrendous killing sufficient alibi to extinguish one more life, de hors circumstances, individual and social, motivational and psychical ? The crime and the criminal, contemporary societal crisis, opinions of builders and moulders of the nation, cultural winds of world change and other profound factors, spiritual and secular, and above all, constitutional, inarticulately guide the Court's faculty in reading the meaning of meanings in preference to a mechanistic interpretation of s. 302 I.P.C. projected in petrified print from Macaulay's vintage mint.

We banish the possible confusion about the precise issue before us -it is not the constitutionality of the provision for death penalty, but only the canalisation of the sentencing discretion in a competing situation. The former problem is now beyond forensic doubt after Jagmohan Singh(') and the latter is in critical need of tangible guidelines, at once constitutional and functional. The law reports reveal the impressionistic and unpredictable notes struck by some decisions and the occasional vocabulary of horror and terror, of extenuation and misericordia, used in the sentencing tailpiece of judgments. Therefore, this jurisprudential exploration, within the framework of s. 302 I.P.C., has become necessitous, both because the awesome 'either/or' of the Section spells out no specific indicators and law in this fatal area cannot afford to be conjectural.

Guided missiles. with lethal potential, in unguided hands, even judicial, is a grave risk where the peril is mortal though tempered by the appellate process. The core question- the only question that occupies our attention, within the confines of the Code, is as to when and why shall capital sentence be pronounced on a murderer and why not in other cases.

The penological poignancy and urgency of the solution is obvious since the human stakes are high, and error, even judicial error (1) Jagmohan Singh v State of Uttar Pradesh (1973) I S.C.C.20.

7-196SCI/79 90 silences for ever a living being and despatches him to that 'undiscovered country from whose bourn no traveller returns': nor, once executed, can 'storied urn or animated bust back to its mansion call the fleeting breath'. The macabre irrevocability of the extreme penalty makes the sombre issue before us too important to be relegated, as often happens, to a farewell paragraph, with focus on fright ful features of the crime and less stress on the crime-doer and related factors. When human rights jurisprudence and constitutional protections have escalated to sublime levels in our country and heightened awareness of the gravity of death penalty is growing all over the civilised globe in our half-century, is it right to leave s. 302 I.P.C. in vague duality and value-free neutrality? Any academic who has monitored Indian sentencing precedents on murder may awaken to 'the overt ambivalence and covert conflict' among judges 'concerning continued resort to the death sentence' which, according to Prof. Blackshield,(') 'seems to minor the uncertainties and conflicts of values in the community itself'. This tangIed web of case-law has been woven around the terse terms of s. 302, I.P.C. during the last hundred years.

THE OLD TEXT AND THE NEW LIGHT Section 302. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.

Such stark brevity leaves a deadly discretion but beams little legislative light on when the court shall hang the sentencee or why the lesser penalty shall be preferred. This facultative fluidity of the pro vision reposes a trust in the court to select. And 'discretionary navigation in an unchartered sea is a hazardous undertaking unless recognised and recognizable principles, rational and constitutional, are crystallised as 'interstitial legislation' by the highest court. The flame of life cannot flicker uncertain! and so s. 302 I.P.C. must be invested with pragmatic concreteness that inhibits ad hominem Responses of individual judges and is in penal conformance with constitutional norms and world conscience. Within the dichtomous frame-work of s. 302 I.P.C., upheld in Jagmohan Singh, we have to evolve working rules of punishment bearing the markings of enlightened flexibility and societal sensibility. Hazy law, where human life hangs in the balance, injects an agonising consciousness that judicial error may (1) Prof. A. R. Blackshield, Associate Professor of Law, University of New South Wales: Capital Punishment in India: The Impact of the Ediga Anamma Case-July 1977.

91 prove to be 'crime' beyond punishment'. And history bears testimony to reversal of Court verdict by Discovery of Time. The tragic speech in the Commons of former Home Secretary (Chuter Ede) makes ghastly reading (1) "I was the Home Secretary who wrote on Evans' papers. "The law must take its course." I never said, in 1948 that a mistake was impossible. I think Evans' case shows, in spite of all that has been done since, that a mistake was possible, and that, in the form in which the verdict was actually given on a particular case, a mistake was made. I hope that no future Home Secretary, which in office or after he has left office, will ever have to feel that although he did his best and no one could accuse him of being either careless or inefficient, he sent a man to the gallows who was not "guilty as charged." That is why we devote a whole judgment to what ordinarily is a brief finale at the end of a long opinion.

ln Ediga Annamma(2), this Court did set down some working formulae whereby a synthesis could be reached as between death sentence and life imprisonment.

Notwithstanding the catalogue of grounds warranting death sentence as an exceptional measure, 'life' being the rule, the judicial decisions have been differing (and dithering) at various levels, with the result the need for a thorough re-examination has been forced on us by counsel on both sides. Prof. Blackshield makes an acid comment: (3) "The fact is that decisions since Ediga Anamma have displayed the same pattern of confusion, contradictions and aberrations as decisions before that case ....To test this, I have abstracted from the All India Reporter seventy cases in which the Supreme Court has had to choose between life and death under Section 302: the last twenty-five reported cases before the date of Ediga Anamma, and the next forty five (including, of course, Ediga Anamma itself) on or after that date." "But where life and death are at stake, inconsistencies which are understandable may not be acceptable. The hard evidence of the accompanying "kit of cases" compels the (1) The Crusade against Capital Punishment in Great Britain by Elizabeth Orman Tuttle, 1961, p. 96.

(2) Ediga Annama v. State of Andhra Pradesh (1974) 4 S.C.C. 43.

(3) Prof. A. R. Blackshield, Associate Professor of Law, University of New South Wales: Capital Punishment in India. The Impact of Ediga Annamma.

Case-July 1977.

92 conclusion that, at least in contemporary India, Mr. Justice Douglas' argument in Furman v. Georgia(l) is correct: that arbitrariness and uneven incidence are inherent and inevitable in a system of capital punishment;

and that therefore- in Irritant constitutional terms, and in spite of Jagmohan Slngh-the-retention of such a system necessarily violates Article 14's guarantee of "equality before the law." The author further observes:

"One source of the confusion seems to have been an under-current of disagreement as to the correctness and applicability of the argument in Ediga Anamma. But the only direct challenge has been in Bishan Dass v. State of Punjab, AIR 1975 SC 573 (January 10, 1975: Case 52) and, with respect, the challenge there seems clearly misconceived." What a study of the decisions of the higher courts on the life-or-death choice shows is that judicial impressionism still shows up and it is none too late to enunciate a systematised set of criteria or at least reliable beacons Ediga Annamma (supra) in terms, attempted this systematisation:

"Let us crystallise the positive indicators against death sentences under Indian Law currently.

Where the murderer is too young or too old, the clemency of penal justice helps him. Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to down-grade the crime into a lesser one, judicial com mutation is permissible. Other general social pressures, war ranting judicial notice, with an extenuating impact may in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the Court to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive (i.e. combining the "murder" provision with the "unlawful assembly" provisione again (if) the accused has acted suddenly under another's instigation, without premeditation, perhaps the court may humanely opt for life, even life where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use the (1) 408 U. S. at 238.

93 horrendous features of the crime and hapless, helpless state A of the victim, and the like, steel the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. A legal policy on life or death cannot be left for ad-hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accepting the trend against the extreme and irrevocable penalty of putting out life.''(l) From what we have said and quoted and from the persistence Or forensic divarication, it has now become necessary to have a second look at the life versus death question, not for summarising hitherto decided cases and distilling the common factors but for applying the Constitution to cut the Gordian knot. The Suprema lex must set the perspective and illumine the meaning of subordinate statutes especially where some provisions contain obfuscatory elements, for, our founding fathers have not hammered out a merely pedantic legal text but handed down a constellation of human values, cherished principles and spiritual norms which belight old codes and imperial laws and impel new interpretations and legislations to tune up the New Order. The Indian Penal Code must be sensitized by the healing touch of the Preamble and Part lII. Wrote Wheeler, J :(2) "That court best serves the law which recognises that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society..." Benjamin N. Cardozo, said: (3) "If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors." Such a solution to the death/life alternatives, where the Code leaves the Judge in the cold, has its limits.

"Justice Homes put his view pithily when he said that judges make law interstitially, that they are confined from molar to molecular motion. Justice Frankfurter puts (1) Ediga Annamma v. State of A. P. (1974) 4 S.C.C. 443 at 453.

(2) Dwy v. Connecticut Co., 89 Conn. 74, 99.

(3) The Nature of the Judicial Process by Benjamin N. Cardozo. p. 152.

94 it more colloquially saying that judges make law at retail, legislators at wholesale.''(l) Therefore, it is no heresy to imbibe and inject the social philosophy of the Constitution into the Penal Code to resolve the tension between the Past and the Present.

QUO VADIS DISCRETIONARY DEATH SENTENCE ? lndian Justice and the constitutional order are centuries ahead of the barbarities of Judge Jeffreys of 'Bloody Assizes' fame; and ideologically away from the years of imperial butchery of Indian uprising when the Penal Code was drafted. Since Law reflects Iife, new meanings must permeate the Penal Code. The deprivation of life under our system is too fundamental to be permitted save on the gravest ground and under the strictest scrutiny if Justice, Dignity, Fair Procedure and Freedom are creedally constitutional. So it is that in this bunch of appeals the court is called upon by counsel for the appellants to repel sentence by hunch and to lay down broad norms and essential principles as beacon lights which make the law of murder, in the sentencing sector, most restrictive and least vagarious.

More illumination and closer examination of the provisions viz., s.302 in the larger humanist context and constitutional conspectus, is necessitous. Legal justice must be made of surer stuff where deprivation of life may be the consequence. So we have heard a wider range of submissions and sought the,'amicus' services of the learned Solicitor General. An intervener (Committee for Abolition of Death Penalty, interested in abolition of death penalty has submitted, through Dr. L. M. Singhvi, some material. We record our appreciation af the assistance given by the former and take due note of the views presented by the latter. Light, not heat, is welcome from any source in aid of judicial justice.

We are cognizant of the fact that no inflexible formula is feasible which will provide a complete set of criteria for the infinite variety of circumstances that may affect the gravity of the crime of murder, as pointed out by Palekar, J. in Jagmohan Singh (supra). The learned Judge further observed:

"The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the judges with a very wide discretion in the matter of fixing the degree of punishment. The discretion in the matter of sentence is, as already pointed out, liable to be corrected , by superior courts." (p. 35) (1) "Social Justice" Ed. by Richard B. Brandt, p. 109.

95 What is important to remember is that while rigid prescriptions and random prescriptions which imprison judicial discretion may play tricks with justice, the absence, altogether, of any defined principles except a variorum of rulings may stultify sentencing law and denude is of decisional precision. 'Well-recognised principles' is an elegant phrase. But what are they, when minds differ even on the basics ? Fluctuating facts and keleidoscopic circumstances, bewildering novelties and unexpected factors, personal vicissitudes and societal variables may defy standard- setting for all situations; but that does not mean that humane principles should be abandoned and blanket discretion endowed, making life and liberty the plaything of the mentality of human judges. Benjamin Cardozo has pricked the bubble of illusion about the utter objectivity of the judicial process: (1) "I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments. Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed. . .Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge." Section 302 is silent; so the judges have to speak, because the courts must daily sentence. Merely to say that discretion is guided by wellrecognised principles shifts the issue to what those recognised rules are. Are they the same as were exercised judicially when Bhagat Singh was swung into physical oblivion ? No. The task is to translate in new terms the currently consecrated principles, informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in social life'. The error of parallax which dated thought processes, through dusty precedents, may project needs to be corrected.

That is the essay we undertake here.

Moreover, the need for well-recognised principles to govern the 'deadly' discretion is so interlaced with fair procedure that unregulated power may even militate against Art. 21 as expounded in Maneka Gandhi's case(2), an aspect into which we do not enter here. Judicial absolutism or ad- hocism is anathema in our constitutional scheme. It (1) The Nature of the Judicial Process by Benjamin N. Cardozo p. 167. (2) Maneka Gandhi v. Union of India (1978) I S.C.C. 248.

(2) Maneka Gandhi v Union of India (1978) 1 S.C.C.248 96 has been said that 'a judge untethered by a text is a dangerous instrument'; and we may well add, judge-power, uncanalised by clear principles may be equally dangerous when the consequence of his marginal indiscretion may be horrific hanging of a human being until he be dead. Palekar, J. himself accepted that "well-recognised principles" must govern sentencing discretion.

The precise criteria which constitute, and the normative nature of those principles did not directly fall for decision as that case proceeded on the basis that the lower courts had rightly exercised the sentencing discretion. The precise and only issue that was mooted and decided in Jagmohan Singh(l) was the constitutionality of s. 302 I.P.C. and the holding was that 'the death sentence imposed after trial in accordance with procedure established by law is not unconstitutional'. The acceptance of the invulnerability of discretionary power does not end the joureney; it inaugurates the search for those 'well recognised principles' Palekar, J., speaks of in the Jagmohan case. Incidental observations without concentration on the sentencing criteria are not the ratio of the decision. Judgments are not Bible for every line to be venerated.

When the legislative text is too bald to be self-acting or suffers zigzag distortion in action the primary obligation is on Parliament to enact necessary clauses by appropriate amendments to s. 302 I.P.C. But if legislative undertaking is not in sight judges who have to implement the Code cannot fold up their professional hands but must make the provision viable by evolution of supplementary principles even if it may appear to possess the flavour of law-making. Lord Dennings observations are apposite:

"Many of the Judges of England have said that they (lo not make law. They only interpret it. This is an illusion which they have fostered. But it is a notion which is now being discarded everywhere. Every new decision-on every new situation-is a development of the law. Law does not stand still. It moves continually.

Once this is recognised, then the task of the Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time. He must not be a mere mechanic, a mere working mason, laying brick on brick, without thought to the overall design. He must be an architect-thinking of the structure as a whole, building for society a system of law which is strong, durable and just. It is on his work that civilised society itself depends." (1) The Supreme Court of India-A Socio-Legal Critique of its Juristic Techniques by Rajeev Dhavan- Foreword by Lord Denning, M. R. The Court's tryst with the Constitution obligates it to lay down A general rules, not a complete directory, which will lend predictabilily to the law vis-a-vis the community and guide the judiciary in such a grim verdict as choice between life and death. The right to life, in- our constitutional order, is too scared to be wished away without so much as Directive Principles for its deprivation, save sweeping judical discretion and reference for confirmation or appellate review_ the know-how for exercise of either being left to the assumed infallibility of the curial process in the face of the daily reality that there are cxtreme variations among judges themselves on 'when' and 'why' the extreme penalty shall or shall not be inflicted.

Currently, the welter of the British Indian and post- Independence decisions and the impact of laconic legislative changes in the Criminal Procedure Code the competition among the retributive, deterrent, the reformative and even the existentialist theories of punishment and of statistical studies and sociological and cultural winds settle the lethal fate of the living man in the cage.

Law must be honest to itself. Is it not true that some judges count the number of fatal wounds, some the nature of the weapons used, others count the corpses or the degree of horror and yet others look into the age or sex of the offender and even the lapse of time between the trial court's award of death sentence and the final disposal of the appeal ? With some judges, motives, provocations, primary or constructive guilt, mental disturbance and old feuds, the savagery of the murderous moment or the plan which has preceded the killing, the social milieu, the sublimated class complex and other odd factors enter the sentencing calculus. Stranger still, a good sentence of death by the trial court is sometimes upset by the Supreme Court because of Law's delays. Courts have been directed execution of murderers who are mental cases, who do not fall within the McNaghten rules, because of the insane fury of the slaughter. A big margin of subjectivism, a preference for old English precedents, theories of modern penology, behavioural emphasis or social antecedents, judicial hubris or human rights perspectives, criminological literacy or fanatical reverence for outworn social philosophers buried in the debris of time except as part of history-this plurality of forces plays a part in swinging the pendulum of sentencing justice erratically. Therefore, until Parliament speaks, the court cannot be silent. (Hopefully, s.302 l.P.C.

is being amended, at long last, but it is only half-way through as the Rajya Sabha proceedings show. We will revert to it later).

98 Prof. Blackshield, on an analytical study of Indian death sentence decisions, has remarked with unconventional candour:

"But where life and death are at stake, inconsistencies which are understandable may not be acceptable." His further comments are noteworthy:

"The fact is that in most cases where the sentence of death under S.302 is confirmed by the Supreme Court, there is little or no discussion of the reasons for confirmation. Sometimes there is a brief assertion of "no extenuating circumstances" (which seems to imply that the Court is making its own discretionary judgment; at other times there is a brief assertion of "no ground to interfere" (which seems to imply that the Court is merely reviewing the legitimacy of the High Court's choice of sentence). The result is to obfuscate, probably beyond any hope of rationalisation, the analytical issues involved."(supra) The twists and turns in sentencing pattern and the under-emphasis on the sentencee's circumstances in decided cases make an in-depth investigation of the 'principles' justifying the award of death sentence a constitutional duty of conscience. This Court must extricate, until Parliament legislates, the death sentence sector from judicial sub jectivism and consequent uncertainty. As Justice Cardozo, in The Nature of the Judicial Process, bluntly states: (1) "There has been a certain lack of candor in much of the discussion of the theme, or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations.. if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chills and distant heights;

and we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by." It is fair to mention that the humanistic imperatives of the Indian Constitution, as paramount to the punitive strategy of the Penal code, have hardly been explored by courts in this field of 'life or death' at the hands of the law. The main focus of our judgment is on this poignant gap in 'human rights jurisprudence' within the limits of the Penal Code, impregnated by the Constitution. To put it pithily, a world order voicing the worth of the human person, a cultural legacy (l) pp. 167-168.

99 charged with compassion, an interpretative liberation from colonial A callousness to life and liberty, a concern for social justice as setting the sights of individual justice, interact with the inherited text of the Penal Code to yield the goals desiderated by the Preamble and Articles 14, 19 and 21.

Nor can courts be complacent in the thought that even if they err the clemency power will and does operate to save many a life condemned by the highest court to death. For one thing, the uneven politics of executive clemency is not an unreality when we remember it is often the violent dissenters, patriotic terrorists, desperadoes nurtured by the sub-culture of poverty and neurotics hardened by social neglect, and not the members of the Establishment or con- formist class, who get executed through judicial and clemency processes. Executive commutation is no substitute for judicial justice; at best it is administrative policy and at worst pressure-based partiality. In either case, that court self-condemns itself which awards death penalty with a sop to its conscience that the habitual clemency of Government will soften the judicial excess in sentence. If justice under the law justifies the lesser sentence it is abdication of judicial power to inflict the extreme penalty and extraneous to seek consolation in the possible benign interference by the President. The criteria for clemency are often different. We arc thus left with the necessity to decipher sentencing discretion in the death/life situation.

SENTENCING CYNOSURES Having stated the area and object of investigation we address ourselves to this grave penological issue purely as judges deciding a legal problem, putting aside views, philosophical or criminological, one holds. But law, in this area, cannot go it alone; and cross-fertilisation from sociology, history, cultural anthropology and current national perils and developmental goals and above all, constitutional currents, cannot be eschewed.

Let us leave 'law' a while and begin withdrawing the backdrop with a lurid brush. Every sombre dawn a human being is hanged by the legal process, the flag of humane justice shall be hung half-mast. Such is the symbolic reverence the land of Gandhi should pay to human life haltered up by lethal law. The values of a nation and ethos of a generation mould concepts of crime and punishment. So viewed, the lode- star of penal policy to day, shining through the finer culture of former centuries, strengthens the plea against death penalty. Moreover, however much judicially screened and constitutionally legitimated, there is a factor of fallibility, a pall that falls beyond