Deena @ Deena Dayal Vs. Union of India & Ors [1983] INSC 129 (23 September 1983)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V. ((CJ) PATHAK, R.S.
MUKHARJI, SABYASACHI (J)
CITATION: 1983 AIR 1155 1984 SCR (1) 1 1983 SCC (4) 645 1983 SCALE (2)340
CITATOR INFO :
F 1992 SC 395 (7)
ACT:
Code of Criminal, Procedure, 1973-S. 354(5)-Execution of death sentence-Hanging by rope-Whether violative of Art 21? Constitution of India, 1950-Art. 21-Execution of sentences lawfully imposed-Mandate of Art. 21 are that sentence shall not be executed in a cruel, barbarous or degrading manner.
Constitution of India, 1950-Art. 21-Burden of proof-If it appears that a person is being deprived of his life or personal liberty, the burden is on the State to establish the constitutional validity of impugned law.
Judicial Review-To pronounce upon constitutionality of law is not legislating even if such pronouncement involves value judgment.
HEADNOTE:
The petitioners who had been sentenced to death for the offence of murder were awaiting execution of the sentence.
Their plea was that hanging by rope is a cruel and barbarous method of executing of the sentence and s. 354(5) Cr. P.C.
which prescribes that method is violative of Art. 21 of the Constitution the respondents raised a preliminary objection that the question had already been concluded by the decision in Bachan Singh v. State of Punjab, [1983]1 S.C.R. 145. The objection was overruled.
Counsel for petitioners contended that s. 354(5), Cr. P.C. is bad because it is impermissible to take human life even under the decree of a court since it is human to take life under any circumstances; that by reason of the provision contained in Art. 21, it is impermissible to cause pain or suffering of any kind whatsoever in the execution of any sentence, much more so while executing a death sentence;
that the method of hanging prescribed by s. 354(5) for executing the death sentence is barbarous, inhuman and degrading; that it is the constitutional obligation of the State to provide for a humane and dignified method for executing the death sentence, which does not involve torture of any kind; and that if the method prescribed by s. 354(5) does not meet this requirement, no death sentence can be executed since no other method for executing that sentenced is prescribed by or is permissible under the law. Counsel also referred to the judgment in Machhi Singh v. State of Punjab, [1983] 3 S.C.C. 470 and suggested that it virtually overrules Bachan Singh.
2 Counsel for respondents contended that a sentence lawfully imposed by a court can and has to be executed, though by causing the least pain and suffering and by avoiding torture or degradation of any kind; that the method prescribed by s. 354(5), Cr. P.C. for executing the death sentence is a humane and dignified method involving the least amount of pain and cruelty; that no other method of executing the death sentence is quicker or less painful; and that Art. 21 does not postulate that no pain or suffering whatsoever shall be caused in the execution of a sentence lawfully imposed by a court, including the sentence of death. Counsel further submitted that unless on the face of it, the method prescribed by for executing law a sentence is revolting to conscience, courts must surrender their discretion to legislative judgment when the challenge to the constitutionality of the law is based on considerations which the court is not equipped to evaluate by manageable judicial standards, and contended that the court's evaluation of the method of hanging prescribed by law shall have to be inevitably subjective, almost to the point of being legislative in character, which must be avoided at all costs.
Dismissing the petitions, HELD: 1. The method prescribed by s. 354(5), Cr. P.C. for executing the death sentence does not violate the provision contained in Art. 21 of the Constitution. [59 E] (a) The material placed before the Court shows that hanging by rope is not a cruel mode of executing the death sentence: the system consists of a mechanism which is easy to assemble; preliminaries to the act are quick and simple and are free from anything that would unnecessarily sharpen the poignancy of the prisoner's apprehension; the chances of accident during the course of hanging can safely be excluded; the method is quick and certain and eliminates the possibility of a lingering death; unconsciousness supervenes almost instantaneously after the process is set in motion and death follows as a result of dislocation of the cervical vertebrae. The system of hanging, as now used, avoids to the full extent the chances of strangulation which results on account of too short a drop or of decapitation which results on account of too long a drop. The mechanics of the method of hanging have undergone significant improvement over the years and hanging has been almost perfected into a science.
The system is consistent with the obligation of the State to ensure that the process of execution is conducted with decency and decorum without involving degradation or brutality of any kind. At the moment of final impact when life becomes extinct, some physical pain would be implicit in the very process of the ebbing out of life. But, the act of hanging causes the least pain imaginable on account of the fact that death supervenes instantaneously. The conclusion that the system of hanging is as painless as is possible in the circumstances, that it causes no greater pain than any other known method of executing the death sentence and that it involves no barbarity, torture or degradation is based on reason, supported by expert evidence and the findings of modern medicine. [58 C-H, 59 A] Report of the Royal Commission on Capital Punishment (U.K.), September, 1953; 35th Report of the Law Commission of India on Capital Punishment, 3 September 30,1967; George R. Scott: Hanging Through the Ages (Torchstream Books, London); J W. Cecil Turner (Ed.) Kenny's Outlines of Criminal Law, 19th Ed., 1966; Harry Elmer Barnes and Negley K. Teeters: New Horizons in Criminology, 3rd Ed., 1966; U.N. Department of Economic and Social Affairs:
Capital Punishment, (New York, 1962); and Bachan Singh, [1983] 1 S.C.R. 145 referred to.
(b) On the question of pain involved in a punishment, the concern of law has to be to ensure that the various steps which are attendant upon or incidental to the execution of any sentence, more so the death sentence, do not constitute punishments by themselves. Humaneness is the hall-mark of civilized laws. If a prisoner is sentenced to death, it is lawful to execute that punishment and that only. He cannot be subjected to barbarity, humiliation, torture or degradation before the execution of that sentence, not even as necessary steps in the execution of that sentence. The process of hanging does not involve any of these directly, indirectly or incidentally.[59 B-D] (c) Hanging by rope was the only method of executing the death sentence which was known to the Constituent Assembly and yet it did not express any disapproval of that method, though it touched upon the question of death sentence while dealing with the President's power of pardon under Art. 72(1)(c) of the Constitution. [58 B] (d) The system of hanging by rope is in operation in large parts of the civilized world and there is a responsible body of scientific and legal opinion which holds that hanging by rope is not a cruel mode of executing the death sentence. [57 H, 58 A] (e) Hanging as a mode of execution is not relentless in its severity. Judges ought not to assume that they are endowed with a divine insight into the needs of a society;
they should heed the warning that, as history amply proves, the judiciary is prone to misconceive the public good by confounding private notions with constitutional requirements. [62 G-H, 63 A] (f) The Court is not required to determine the merits and demerits of the alternative methods of execution which are in vogue elsewhere because the Court cannot substitute any other method of execution for the method prescribed by law. However, an understanding of the process involved in the competing methods used for executing the death sentence is not altogether pointless because if some other method has a real and definite advantage over a the method of hanging, arbitrary rejection of that method by the state may not answer the constitutional prescription. However, neither electrocution, nor lethal gas, nor shooting, nor even the lethal injection has any distinct or demonstrable advantage over the system of hanging. The general belief that death by electrocution is entirely painless is not free from doubt.
That apart, failure of electrical energy. supplied by commercial undertakings has been considered in America as an impediment in the use of the electric chair. With frequent failures of electric power in our country, the electric chair will become an instrument of torture. Lethal injection is by and large an untried 4 method. The injection is required to be administered intravenously which is a delicate and skilled operation. The Royal Commission on Capital Punishment (U.K.) was not satisfied that executions carried out by the administration of lethal injections would bring about death more quickly, painlessly and decently in all cases. Shooting by a firing squad, apart from being unreliable, is an uncivilised method of extinguishing life. It is the favourite pastime of military regimes which trample upon human rights with impunity. It is most recklessly and wantonly used for liquidating opposition and smothering dissent in countries which do not respect the rule of law. Murders by shooting are becoming a serious menace to law and order in our country. Shooting by the State in order to kill for executing the order of a court will unwittingly confer respectability on the 'shooting to kill' tactics which are alarmingly growing in proportion, The suggestion that a death convict may be put to sleep by a sleep-inducing injection before applying other methods such as electrocution or gas chamber, is not only impracticable but would appear to involve complications and torture to an uncommon degree. [50 F-H, 57 E, 53 F, 54 B, 56 C, F, 55 G-H, 56 A-B, 56 G, 57 A] (g) Matters of policy are certainly for the legislature to consider and therefore, by what mode or method the death sentence should be executed, is for the legislature to decide. But the function of the legislature ends with providing what it considers to be the best method of executing the death sentence. Where the function of the legislature ends, the function of the judiciary begins. It is for the courts to decide upon the constitutionality of the method prescribed by the legislature for implementing or executing a sentence. Whether that method conforms to the directs of the constitution is a matter not only subject to judicial review but it constitutes a legitimate part of the judicial function. The question whether the particular method prescribed by law for executing the death sentence is in consonance with the Constitution inevitably involves a value judgment based upon a comparative evaluation of alternate methods for executing the death sentence. But more than any such comparative evaluation, the court's plain and primary duty is to examine whether, even if the method selected by the legislature is the least objectionable, it is still open to the objection that it involves under torture, degradation or cruelty. The Court's task will end with pointing out why, if at all, the method at present provided by law is contrary to the mandate of the constitution. To pronounce upon the constitutionality of the law is not legislating, even if such pronouncement involves the consideration of the evolving standards of the society.
[35 A-C; E-F]
2. (a) The contention that it is inhuman to kill under any circumstances and that Art. 21 imposes a total prohibition on the taking of human life has to be rejected.
If the argument were to be accepted, the imposition of death sentence would become an exercise in futility. Indeed, if carried to its logical conclusion, the argument will make it impossible to execute any sentence whatsoever, particularly of imprisonment because of every sentence of imprisonment necessarily involves pain and suffering to a lesser or greater degree. A constitution so carefully conceived as ours cannot be construed to produce such a startling result.
Painless punishment is a contradiction in 5 terms. If it is lawful to impose the sentence of death in appropriate cases, it would be lawful to execute that sentence in an appropriate manner. The mandate of Art. 21 are not that the death sentence shall not be executed but that it shall not, be executed in a cruel, barbarous or degrading manner. When the sentence of death is constitutionally valid, not even the sophisticated sensitivities can justly demand that those upon whom, the extreme penalty of law is imposed because of the magnitude of their crime should not be made to suffer the execution of that sentence, unaccompanied by torture or degradation of any kind. If the larger interests of the community as opposed to the interests of an individual require that a death sentence should be imposed in an exceptional class of cases, the same societal interests would justify the execution of that sentence, though in strict conformity with the requirements of Art. 21. [59 G, 60 C-D, 59 H, 60B F-G] (b) The argument that either death sentence is barbarous or that the method of hanging is cruel, inhuman or degrading cannot draw any sustenance from the Eighth Amendment Clause of the U.S. Constitution. The American Supreme Court has formulated a sophisticated definition of that clause which has a dynamic content. Several concurring opinions show that, in America, capital punishment is not considered to be violative of the Eighth Amendment. What the Eighth Amendment prohibits is "something inhuman and barbarous and something more than the mere extinguishment of life". The suffering necessarily involved in the execution of death sentence is not banned by the Eighth Amendment though the cruel form of execution is. [62 F-G, 61 F, 62 D- E] Kemmler, 136 U.S. 436; O' Neil v. Vermont, 144 U,S. Trop v. Dulles, 356 U.S. 86; and Louisiana v. Resweber, 329 U.S. 459; referred to.
3. (a) There has to be finality to litigation, criminal as well as civil, if law is not to lose its credibility. No one of course can question that law is a dynamic science, the social utility of which consists in its ability to keep abreast of the emerging trends in social and scientific advance and its willingness to readjust its postulates in order to accommodate those trends. But, that is not to say that judgments rendered by this Court after a full debate should be reconsidered every now and then and their authority doubted or diluted. That would be doing disservice to law since certainty over a reasonably foreseeable period is the hall-mark of law. [11 F-G] The question that, in the circumstances mentioned in Bachan Singh, it is permissible to impose the sentence of death for the offence of murder must be treated as concluded and not any longer open to argument. In Machhi Singh, the learned Judges have but formulated broad guidelines to assist the Courts in deciding the vexed question as to whether the death sentence is at all called for. Evidently, the judgment does not enlarge the scope of the rule in Bachan Singh by broadening the narrow field of cases which call for the death sentence. The constraints of Bachan Singh deserve to be preserved but that means that it is only a rare degree of malevolence which invites and justifies the imposition of death sentence. [11 B-D] 6 Bachan Singh v. State of Punjab [1983] 1 S.C.R. 145; and Machhi Singh v. State of Punjab,[1983]; 3 S.C.C. 470 referred to.
(b) Both the majority and the minority in Bachan Singh considered the question of the validity of the death sentence from the procedural aspect also, with special reference to the method of hanging prescribed by law for executing the death sentence. Nevertheless, the question whether the particular mode of executing the death sentence prescribed by sec. 354(5) Cr. P.C., violates the provisions of Art. 21 of the Constitution were not directly and substantially in issue in Bachan Singh and it was not considered specifically by the majority as an independent issue. It would not be proper to sidetrack that the question and refuse to examine it fully because of the incidental consideration which it received in Bachan Singh.[14 D, H, 15 C-D] (c) The retribution involved in the theory 'tooth for tooth' and 'an eye for eye' has no place in the scheme of civilized jurisprudence and the court cannot turn a deaf ear to the petitioners' claim for justice on the ground that the enormity of their crimes has resulted in grave injustice to the victims of those crimes. The court is concerned to ensure due compliance with constitutional mandates, no matter the occasion. Justice has to be done dispassionately in accordance with the constitutional attitudes whether it is a murdered or a smuggler who asks for it. Law cannot demand its pound of flesh.[16 E-G] Per Chandrachud, C.J. and Pathak, J. (Sabyasachi Mukharji,J. reserving his opinion on the point) In cases arising under Art. 21 of the Constitution, if it appears that a person is being deprived of his life or has been deprived of his personal liberty, the burden rests on the State to establish the constitutional validity of the impugned law. [32 F] There is a fundamental distinction between cases arising under Art. 14 and those which arise under Arts. 19 and 21. In the generality of cases under Art. 14, the challenge is based on the allegation that the impugned provision is discriminatory since it singles out the petitioner for hostile treatment from amongst persons who, being situated similarly, belong to the same class as the petitioner and the petitioner has to plead and prove that there are others who are situated similarly as him and that he is singled out and subjected to unfavorable treatment.
Whether there are other persons who are situated similarly as the petitioner and whether he is subjected to hostile discrimination are questions of fact and the burden to establish the existence of these facts rests on the petitioner. In a challenge based on the violation of Art. 19 or Art. 21 the petitioner has undoubtedly to plead that, for example, his right to free speech and expression is violated or that he is deprived of his right to life or personal liberty. But once he shows that, which really is not a part of the burden of proof, it is for the State to justify the impugned law or action by proving that, for example, the deprivation of the petitioner's right to free speech and expression is saved by cl. (2) of Art. 19 since it is in the 7 nature of a reasonable restriction on that right in the interests of matters mentioned in cl. (2), or that, the petitioner has been deprived of his life or personal liberty according to a just, fair and reasonable procedure established, by law. In cases arising under Art. 19, the burden is never on the petitioner to prove that the restriction is not reasonable or that the restriction is not in the interests of matters mentioned in cl. (2). Likewise, in cases arising under Art. 21, the burden is never on the petitioner to prove that the procedure prescribed by law which deprives him of his life or personal liberty is unjust, unfair or unreasonable. As soon as it is shown that the Act invades a right guaranteed by Art. 21 it is necessary to inquire whether the State has proved that the person has been deprived of his life or personal liberty according to procedure established by law, that is to say by a procedure which is first, fair and reasonable. [23 D-H] Any case, even a locus classic us is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical situations; factual and legal, but care must be taken to see that this is not done mechanically, that is without a close examination of the rational of the decision which is cited as a precedent.
Human mind, trained even in the strict discipline of law, is not averse to taking the easy course of relying on decisions which have become famous and applying their ratio to supposedly identical situations.[21 G-H] Saghir Ahmed v. State of U.P., [1955] 1 S.C.R. 707, Khyerbari Tea Co. v. State of Assam, [1964] 5 S.C.R. 975; Western U.P. Electric Power & Supply Co. Ltd. v. State of U.P., [1969] 3 S.C.R. 865; Mohd. Faruk v. State of M.P., [1970] 1 S.C.R. 156; Laxmi Khandsari v. State of U.P., [1981] 3 S.C.R. 92; and Bachan Singh v. State of Punjab, [1983] 1 S.C.R. 145; referred to.
Ram Krishna Dalmia v. Justice S.R. Tendolkar, [1959] S.C.R. 279; Mohd, Hamif Quareshi v. State of Bihar; [1959] S.C.R. 629; Madhu Limaye v. Sub-Divisional Magistrate, [1971] 2 S.C.R. 711; and Pathumma v. State of Kerala, [1978] 2 S.C.R. 547; explained and distinguished.
B Baneriji v. Anita Pan, [1975] 2 S.C.R. 774; decided per incurium.
In the instant case the impugned statute, on the face of it, provides for a procedure for extinguishing life.
Therefore, not even the initial obligation to show the fact of deprivation of life or liberty rests on the petitioners.
The State must establish that the procedure prescribed by s. 354(5), Cr. P. C. for executing the death sentence is just, fair and reasonable. [33 A-B] Per Sabyasachi Mukharji, J.
As soon as it is shown that a Statute or Act in question invades a right guaranteed by Art. 21, it is necessary to enquire whether the State has proved that the prisoner has been deprived of his life or personal liberty according to procedure established by law. However, at present I would not express my 8 opinion whether in all such cases, the State has a further initial burden to prove that procedure established by law is just, fair and reasonable. [63 E-L]
ORIGINAL JURISDICTION: Writ Petitions Nos. 503,516, 532, 534, 535, 537, 538 -39, 541-45, 543-45, 553,554, 555, 565, 574, 586, 556-57, 592-94, 604-06, 676, 600, 533, 1414 and 1423 of 1983.
(Under article 32 of the Constitution of India) WITH Special Leave Petition (Criminal) No. 196 of 1983 From the Judgment and Order dated the 6th December, 1982 of the Allahabad High Court in Criminal Appeal No. 1357/82.
AND Writ Petition Nos. 286, 345-48, 428, 429 of 1983.
(Under article 32 of the constitution of India) Advocates For The Petitioners N.M. Ghatate and Mr. S.V. Deshpande-in WP. 503.
R.C. Kohli, A.C.-in WPs. 516 and 586.
R.K. Garg, R. Sathish and V.K. Pandita,-in WPs. 534 and 565.
A.N. Bardaiyar and B.B. Sinha-in WP. 535.
A.K. Srivastava, A.C.-in WP. 537.
O.P. Verma-in WPs. 538-539.
Mrs. K.Hingarani-in WPs. 541-42.
B.S. Varshney and C.L. Sahu-in WPs. 543-45.
L.K. Gupta-in WP. 553.
Raju Ramachandran-in WP.555.
9 Miss Kailash Mehta and Mrs. Naresh Bakshi- in WPs. 5652 600.
Arun Madan, A.C. - in WPs. 556-557.
V.D. Khanna - in WPs. 604-06.
S.N. Mehta, A.C. - in WP.676.
Anil Kumar Gupta and Brij Bhushan-in WP. 533.
D.K. Garg - in WP. 1414, 1697-98 and 286.
Aruneshwar Gupta in-WP. 1423.
S.K.Mehta, P.N. Puri and M.K. Dua-in S.L.P. No. 196/83.
Solmon Khurshid and L.R. Singh-in WPs. 345-48.
Miss Lalita Kohli, A.C.-in WP. 429.
Petitioner in Person-in WP. 532.
Nemo in WPs. WPs. 534,574,529-94 and 428.
Advocates For the Respondents:
K.Parasaran Soliciter General, for State of Maharashtra and U.O.I.
K.G. Bhagat Additional Soliciter General, N.C. Talukdar, Anil Dev Singh, C.V. Subba Rao and Miss A. Subhashini M.N. Shorff for State of Maharashtra.
A.V. Rangam for State of Tamil Nadu.
Swaraj Kaushal for State of Karnatka.
Harbans Singh and D.D. Sharma for State of Punjab.
R.N. Poddar for State of Haryana.
Dalveer Bhandari for State of U.P.
B.B. Singh for State of Bihar.
10 Ram Jethmalani for State of Karnatka and for interveners.
Miss Rani Jethmalani and Shrikant Bhat, in WP. Nos. 532, 534 and 535 of 1983.
Chandrakant Lecturer in the Department of Forensic Medicine, All India Institute of Medical Sciences, intervenor-in person in WP. No. 503.
The Judgment of the Court was delivered by CHANDARCHUD, C.J.: In this batch of Writ Petitions, the petitioners were sentenced to death for the offence of murder under section 302 of the Penal Code . They have nothing in common except that they committed murders and have been sentenced to death. The sentence of death imposed upon them has become final in the sense that the Special Leave Petitions, Appeals, Review Petitions and Mercy Petitions filed by them have been dismissed, some of these more than once. The main question which has been raised by the petitioners in these writ petitions relates to the validity of the mode of execution of the death sentence.
Section 354(5) of the Code of Criminal Procedure provides that:
When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead The petitioners challenge the constitutional validity of this provision on the ground that hanging a convict by rope is a cruel and barbarous method of executing a death sentence, which is violative of Article 21 of the Constitution That article provides that:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
The validity of death sentence which Section 302 prescribes for the offence of murder was upheld by this Court in Bachan Singh.
11 The ratio of that decision is that the normal sentence for murder is life imprisonment and that the sentence of death can be imposed in a very exceptional class of cases, described in that judgment as the 'rarest of rare cases'.
Which kind of cases would precisely fall within that category is in the very nature of things difficult to define and even to describe. But, all the same, a studied attempt was made by this Court in Machhi Singh to identify, though not to crystalize, the area of those rarest of rare cases in which death sentence can justifiably be imposed. Shri Garg's criticism of that judgment that it virtually overrules Bachan Singh and Jagmohan Singh is wide off the mark. In Machhi Singh, the learned Judges have but formulated broad guidelines to assist the Courts in deciding the vexed question as to whether the death sentence is at all called for. Evidently, the judgment does not enlarge the scope of the rule in Bachan Singh by broadening the narrow field of cases which call for the death sentence.
But, Machhi Singh is by the way. The validity of the death sentence for the offence of murder having been upheld by this Court after a careful and prolonged discussion, there is no justification for reopening that question, though such a suggestion was made half-heartedly before us, towards the conclusion of the arguments. The question that, in the circumstances mentioned in Bachan Singh, it is permissible to impose the sentence of death must be treated as concluded and not any longer open to argument. There has to be finality to litigation, criminal as much as civil, if law is not to lose its credibility. No one of course can question that law is a dynamic science, the social utility of which consists in its ability to keep abreast of the emerging trends in social and scientific advance and its willingness to readjust its postulates in order to accommodate those trends. Life is not static. The purpose of law is to serve the needs of life. Therefore law cannot be static. But, that is not to say that Judgments rendered by this Court after a full debate should be reconsidered every now and then their authority doubted or diluted. That would be doing disservice to law since certainty over a reasonably foreseeable period is the hallmark of law.
The learned Solicitor General has raised a preliminary objection to these Writ Petitions on the ground that the question 12 which is sought to be argued by the petitioners is concluded by the judgment rendered by a Constitution Bench of this Court in Bachan Singh. It is urged that since the question is not res integra, it is not open to the petitioners to raise it, nor indeed any reason or justification for this Court to entertain it. Learned counsel for the petitioners, led by Shri R.K. Garg, answer this objection by contending that the only question which arose in Bachan Singh was whether it is constitutionally permissible to prescribe the sentence of death. It is urged on behalf of the petitioners that the question as regards the validity of section 354(5) of the Code of Criminal Procedure was neither argued in Bachan Singh nor considered by the Court.
The objection taken by the learned Solicitor General is not without substance but for reasons which we will presently indicate, we do not propose to accept it. At page 196 of the Report in Bachan Singh,(1) the main arguments of the 'Abolitionists' which were, "substantially adopted" by counsel for the petitioners therein are reproduced in clauses (a) (b) and (c). Under Clause (c), the argument is reproduced thus: "Execution by whatever means and for whatever offence is cruel, inhuman and degrading punishment", by which is obviously meant 'execution of death sentence'. The argument mentioned in clause (a) to the effect that the death penalty is unconstitutional because it is irreversible is considered at pages 196 and 197 of the Report. The argument mentioned in clause (b) as to whether death penalty serves any penological purpose at all is considered at page 197. Though the arguments mentioned in clauses (a) and (b) at page 196 of the Report have been specifically considered under separate heads as stated above, the argument mentioned in clause (c) at page 196 relating to the execution of death sentence has not been considered under a separate head. The discussion of the, argument whether death penalty, serves any penological purpose, is concluded at the end of the third line on page 222. The heading "Regarding (c)" should have appeared in the Report after the said third line and before the fresh paragraph which beings thus: "We will now consider the issue whether the impugned limb of the provision in section 302, Penal Code , contravenes Article 21 of the Constitution".
That this should have been so is clear from the fact that after considering the particular argument at pages 222 and 223, Justice Sarkaria who spoke for the majority concludes:
13 "Under the successive Criminal Procedure Code which have been in force for about 100 years, a sentence of death is to be carried out by hanging. In view of the aforesaid constitutional postulates, by no stretch of imagination can it be said that the death penalty under Section 302, Penal Code , either per se or because of its execution by hanging, constitutes an unreasonable, cruel or unusual punishment. By reason of the same constitutional postulates, it cannot be said that the framers of the Constitution considered death sentence for murder or the prescribed traditional mode of its execution as a degrading punishment which would defile "the dignity of the individual" within the contemplation of the Preamble to the Constitution".
Bhagwati, J., who dissented from the majority considered the question of the constitutional validity of the death sentence, both from the substantive and the procedural points of view. At page 286, the learned Judge says that "the worst time for most of the condemned prisoners would be the last few hours when all certainty is gone and the moment of death is known". After extracting quotation from Dostoyevsky and Canns which bear upon the execution of death sentence, the learned Judge observes:
"There can be no stronger words to describe the utter depravity and inhumanity of death sentence". After making this observation Bhagwati, J., proceeds thus:
"The physical pain and suffering which the execution of the sentence of death involves is also no less cruel and inhuman. In India, the method of execution followed is hanging by the rope.
Electrocution or application of lethal gas has not yet taken its place as in some of the western countries. It is therefore with reference to execution by hanging that I must consider whether the sentence of death is barbaric and inhuman as entailing physical pain and agony. It is no doubt true that the Royal Commission on Capital Punishment 1949-53 found that hanging is the most humane method of execution and so also in Ichikawa v. Japan, the Japanese Supreme Court held that execution by hanging does not correspond to cruel punishment' inhibited by Article 36 of the Japanese Constitution. But whether amongst all the 14 methods of execution, hanging is the most humane or in view of the Japanese Supreme Court, hanging is not cruel punishment within the meaning of Article 36, one thing is clear that hanging is undoubtedly accompanied by intense physical torture and pain." (emphasis ours).
Thereafter, the learned Judge refers to the description of the method of hanging given by warden Duffy of San Quentin, a high security prison in America and the description given in 1927 by a surgeon who witnesses a double execution and records his conclusion by saying that the passages extracted by him established beyond doubt that "the execution of sentence of death by hanging does involve intense physical pain and suffering, through it may be regarded by some as more humane than electrocution or application of lethal gas." This discussion will show that both the majority and the minority in Bachan Singh considered the question of the validity of the death sentence from the procedural aspect also, with special reference to the method of hanging prescribed by law for executing the death sentence. While upholding the validity of death sentence, the majority did not overlook and, in fact, took into consideration the circumstance that the mode prescribed by the Criminal Procedure Code for executing the death sentence is hanging.
On the other hand, while striking down the validity of death sentence Bhagwati, J., was influenced by the consideration that the mode of hanging prescribed by law for executing the death sentences was itself cruel and barbarous.
Though this is the true position, the reason why we are not inclined to uphold the preliminary objection taken by the learned Solicitor-General is that the question as regards the constitutional validity of section 354 (5) of the Code of Criminal Procedure was neither raised squarely by the petitioners in Bachan Singh nor considered directly by the Court. If we may so put it, the question as regards the validity of section 354 (2) of the Code was not directly and substantially in issue in Bachan Singh. The questions which arose for consideration in that case are formulated in the majority judgment at page 169 as Questions I and II. The majority referred to the mode of execution of the death sentence only incidentally. The question whether the particular mode of executing the death sentence prescribed by section 354 (5) of the Code violates the provisions of Article 21 was not considered specifically by the majority as in independent issue. Considering the judgment of Bhagwati, J., also as a whole it would appear that the principal reason for which the learned Judge struck down the death sentence is its irrevocability, its arbitrariness and its lack of purpose. One of us was a party to the decision in Bachan Singh and if recollections do not fail so soon and are permissible aids to the understanding of a decision it would not be right to say that the question as regards the constitutional validity of section 354 (5) of the Code was either directly put in issue in that case or was argued upon or was considered by the Court as an independent reason bearing upon the validity of the death sentence. The question which the petitioners have raised in these writ petitions is important not only from the legal and constitutional point of view but also from the sociological point of view. It will not be proper to side- track that question and refuse to examine it fully because of the incidental consideration which it received in Bachan Singh. Accordingly, we reject the preliminary objection raised by the learned Solicitor General and proceed to examine the question raised by the petitioners on its own merits, on the basis that the question is still open to argument.
The petitioners, who have been sentenced to death for acts of outrageous brutality, have presented their case with an air of injured innocence. Their claim is that no matter what pain and suffering they may have inflicted upon their victims and their families, no pain or suffering whatsoever shall be caused to them while executing the death sentence.
It is urged on their behalf by Shri R.K. Garg and the other learned counsel that even if it may be lawful to impose the death sentence in an exceptional class of cases, it is impermissible to execute that sentence even in those cases, since it is inhuman and cruel to take human life under any circumstances, even under a decree of a Court. That is the fundamental premise of the petitioners' contention. Secondly it is urged that the method prescribed by section 354(5) of the Code for executing the death sentence is inhuman, barbarous and degrading and therefore that method cannot be employed for executing the death sentence. It is the constitutional obligation of the State to provide for a humane and dignified mode of executing the death sentence, which will not involve torture or cruelty of any kind. It is urged that if the State fails to discharge that obligation, no death sentence can be executed; howsoever justifiably it may have been imposed. The Code of Criminal Procedure prescribes only one method of executing the 16 death sentence, namely, by hanging and if that method violates the mandate of Article 21, the sentence must remain unexecuted, since the Court cannot substitute any other method of execution for the only method prescribed and envisaged by law. Finally, it is argued that the burden is on the State to prove that the method of execution of the death sentence prescribed by section 354(5) of the Code is a humane and civilized method and that it does not involve pain, cruelty or degradation of any kind. This is so because, the burden to establish that any particular act, challenged as unconstitutional, is just and fair always lies on the State. Therefore, it is not for the petitioners to show that any other method of executing the death sentence would be less painful, cruel or degrading. According to the petitioners, the State must fail if it does not discharge the burden which lies heavily upon it. The petitions cannot be dismissed on the ground that the petitioners have failed to establish that the method prescribed by section 354(5) involves unnecessary pain, torture or cruelty; or that other methods of executing the death sentence are either not cruel or painful or are less cruel and painful than the method prescribed by section 354(5) of the Code. These arguments require careful consideration, uninfluenced by the circumstance that the demand for civilized, humane and painless treatment is made by those who have been found guilty of subjecting their victims to uncivilized and inhuman acts involving great torture and suffering. The retribution involved in the theory "Tooth for tooth' and 'an eye for eye' has no place in the scheme of civilized jurisprudence and we cannot turn a deaf ear to the petitioners' claim for justice on the ground that the enormity of their crimes has resulted in grave injustice to the victims of these crime. We are concerned to ensure due compliance with constitutional mandates, no matter the occasion. If it were not so, smugglers who are detained under the laws of detention shall have to be denied the protection of Article 22 of the Constitution on the ground that they are guilty of acts which sabotage the economy of the country. Justice has to be done dispassionately in accordance with the constitutional attitudes whether it is a murderer or a smuggler who asks for it. Law cannot demand its pound of flesh.
At one stage we were inclined to decide the main question argued by the petitioners without considering the rival contentions as to the burden of proof. We thought that whether the burden lies on the petitioners to show that the method prescribed by section 354(5) of the Code is constitutionally impermissible or whether the 17 burden lies on the State to prove that the particular method is permissible within the frame work of the Constitution, we should pronounce upon the legality of that method on the basis of the data which has been placed before us by the both sides. The question of burden of proof ceases to have the same importance when the entire evidence is before the Court, each side having placed before it such material as it considers necessary to support its case. But then, the fact that parties have produced their respective data before the Court does not absolve the Court from considering the question whether, on the basis of the entire material before it, the burden can be said to have been discharged by the party on whom it lies. Besides, counsel engaged themselves into quite some argument over the question of burden of proof and since that question is of importance and arises frequently, it is just as well that we decide it. We propose to decide that question before adverting to the other contentions raised on behalf of the petitioners.
It is urged by Shri Jethmalani who appears on behalf of the Government of Karnataka, as also on behalf of the Bar Council of India who was allowed to intervene in these proceedings, that every statute carries with it a strong presumption of constitutionality and a heavy burden lies upon those who challenge that statute to displace that presumption. In support of this submission, the learned counsel relies principally on the decision of a seven-Judge Bench of this Court in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, which, he says, was not noticed in Bachan Singh. The learned Attorney-General (the Solicitor- General became the Attorney-General during the hearing of these petitions) also argued that the decisions of this Court have almost uniformly taken the view that the burden to displace the presumption of constitutionality lies on the person who challenges the statute as unconstitutional.
Most of the important decisions which have a bearing on the question of burden of proof have been noticed in the majority and minority judgments in Bachan Singh. Sarkaria J, speaking for the majority, has summed up the position thus:
"With regard to onus, no hard and fast rule of universal application in all situations, can be deduced from the decided cases. In some decisions such as 18 Saghir Ahmed v. State of Uttar Pradesh and Khyerbari Tea Co. v. State of Assam & Ors it was laid down by this Court that if the writ petitioner succeeds in showing that the impugned law ex facie abridges or transgresses the rights coming under any of the sub- clause of clause (1) of Article 19, the onus shifts on the respondent State to show that the legislation comes within the permissible limits imposed by any of the clauses (2) to (6) as may be applicable to the case, and, also to place material before the court in support of that contention. If the State does nothing in that respect, it is not for the petitioner to prove negatively that it is not covered by any of the permissive clauses.
"A contrary trend, however, is discernible in the recent decisions of this Court, which start with the initial presumption in favour of the constitutionality of the statute and throw the burden of rebutting that presumption on the party who challenges its constitutionality on the ground of Art 19." As an instance of the contrary trend, Sarkaria, J., has cited the judgment of Krishna Iyer, J., in B. Banerji v.
Anita Pan, which reiterates the ratio in Ram Krishna Dalmia to the following effect:
".... there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles";
and "....... that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds." 19 Referring to the judgment of this Court in R.M.D. Chamarbaugwala and to the first proposition in Chapter III of Seervai's Constitutional Law (Page 54 2nd Edition; page 118, 3rd Edition) Krishna Iyer. J. observed:
"We have to remember the comity of the constitutional instrumentalities and raise the presumption that the legislature understands and appreciates the needs of the people and is largely aware of the frontiers of and limitations upon its power. Some Courts have gone to the extent of holding that there is a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; and to doubt the constitutionality of a law is to resolve it in favour of its validity." Sarkaria, J., has finally referred to the Seven-Judge Bench decision of this Court in Pathumma v. State of Kerala, in while Fazal Ali, J., speaking for himself, Beg, C.J., Krishna Iyer and Jaswant Singh. JJ., declared the law in the following terms:
"It is obvious that the Legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weaker sections of the society and for the improvement of the lot of poor people. The Court will, therefore, interfere in this process only when the statute is clearly violative of the right conferred on the citizen under Part III of the Constitution or when the Act is beyond the legislative competence of the legislature or such other grounds. It is for this reason that the Courts have recognised that there is always a presumption in favour of the constitutionality of a statute and the onus to prove its invalidity lies on the party which assails the same. In the case of Mohd. Hanif Quareshi vs. The State of Bihar, while adverting to this aspect Das, C J. as he then was, speaking for the Court observed as follows:
"The pronouncements of this Court further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The Courts, it is accepted, must presume that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds." As we have said at the outset, these decisions have been discussed in the majority and minority judgments in Bachan Singh.
The decision of a Bench of seven Judges on which Shri Jethmalani has placed strong reliance is the one reported in Madhu Limaye. The question which arose for consideration in that case was whether the provisions of section 144 and Chapter VIII of the Code of Criminal Procedure could be said to be in the interests of public order in so far as the right of freedom of speech and expression, the right of assembly, and the right to form associations and unions are concerned and in the interests of the general public in so far as they curtailed the freedom of movement throughout the territory of India. The petitioners and the interveners therein invoked the American doctrine of preferred-position for the fundamental rights, particularly the right to freedom of speech and expression. Hidayatullah, C.J., who spoke for six taught Judges (Bhargava. J. dissenting on another point) reviewed the preferred position doctrine and concluded that it did not any longer have the support of the Supreme Court of the United States and therefore. in America, "unreasonableness of the law has to be established", The learned Chief Justice proceeded to say:
"In this Court the preferred-position doctrine has never found ground although vague expressions such as 'the most cherished rights', 'the inviolable freedoms', sometimes occur. But this is not to say that any one Fundamental Right is superior to the other or that 21 Article 19 contains a hierarchy. Pre-constitution laws are not to be regarded as unconstitutional. We do not start with the presumption that, being a pre- constitution law, the burden is upon the State to establish its validity. All existing laws are continued till this Court declares them to be in conflict with a fundamental right and, therefore, void. The burden must be placed on those who contend that a particular law has become void after the coming into force of the Constitution by reason of Article 13(1) read with any of the guaranteed freedoms." These decisions on the question of burden of proof must be divided into two categories: those which deal with the violation of the equality clause in Article 14 of the Constitution and those others with deal with the violation of the guarantees contained in Article 19. The leading decision on the former category of cases is Ram Krishna Dalmia in which Das, C.J., formulated six principles as emerging out of an analysis of the cases under Article 14.
The passage at page 297 of the Report in which these principles are set out has become a classic and a part of it has already appeared in this judgment as a quotation extracted by Krishna Iyer, J., in B. Banerji v. Anita Pan.
It may bear repetition to say that according to the learned Chief Justice, "there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles" and that, "it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds." The concluding words of the second of these two principles show that the said principle is limited in its application to cases arising under Article 14. The question of discrimination arises under Article 14 and not under Article 19 of the Constitution. Any case, even a locus classicus, is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical situations, factual and legal, but care must be taken to see that this is not done mechanically, that is, without a close examination of the rationale of the decision which is cited as a precedent Human mind, trained even in the strict discipline of law, is not averse to taking the easy course of relying on decisions which have become famous and applying their ratio to supposedly identical situations. In Ram Krishna Dalmia, the 22 Court was dealing with a challenge to section 3 of the Commissions of Inquiry Act, 1952 and the notification issued by the Central Government under that section appointing a Commission of Inquiry to inquire into and report on the affairs of certain companies. The Act was challenged on the ground that it conferred an arbitrary power on the Government to issue notifications appointing Commissions of Inquiry, while the notification was challenged on the ground that the petitioners and their companies were arbitrarily singled out for the purpose of hostile and discriminatory treatment and subjected to a harassing and oppressive inquiry. The principles enunciated by the learned Chief Justice on behalf of the Court have to be understood in the context of these facts, the context being that the case before the Court involved considerations limited and germane to the application of Article 14. Apart from certain other questions which are not relevant for our purpose, the entire discussion of the facts and law in that judgment revolves round the provisions of the Article. Indeed, Article 14 is the king-pin of the decision in Ram Krishna Dalmia. It is wrong to treat the principles enunciated by the learned Chief Justice as of universal application and, in that process, to apply them to cases arising under other articles of the Constitution, particularly Articles 19 and 21.
The principle which underlies Article 14 is that equals must be treated equally, that is to say, that "laws must operate equally on all persons under like circumstances".
Article 14, though apparently absolute in its terms, permits the State to pass a law which makes a classification, so long as the classification is based on intelligible differentia having a real nexus with the object which is sought to be achieved by the law. In the generality of cases under Article 14, the challenge is based on the allegation that the impugned provision is discriminatory since it singles out the petitioner for hostile treatment, from amongst persons who, being situated similarly, belong to the same class as the petitioner. It is plain that in matters of this nature, the petitioner has to plead and prove that there are others who are situated similarly as him and that he is singled out and subjected to unfavourable treatment.
As observed by Shah J. in Western U.P. Electric Power and Supply Co. Ltd. v. State of U.P.:
"Article 14 of the Constitution ensures equality among equals: its aim is to protect persons similarly 23 placed against discriminatory treatment. It does not however operate against rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatment had no reasonable relation to the object sought to be achieved by the law." Whether there are other persons who are situated similarly as the petitioner is a question of fact. And whether the petitioner is subjected to hostile discrimination is also a question of fact. That is why the burden to establish the existence of these facts rests on the petitioner. To cast the burden of proof in such cases on the State is really to ask it to prove the negative that no other persons are situated similarly as the petitioner and that, the treatment meted out to the petitioner is not hostile.
Thus, there is a fundamental distinction between cases arising under Article 14 and those which arise under Articles 19 and 21 of the Constitution. In a challenge based on the violation of Articles 19 and 21, the petitioner has undoubtedly to plead that, for example, his right to free speech and expression is violated or that he is deprived of his right to life and personal liberty. But once he shows that, which really is not a part of the "burden of proof", it is for the State to justify the impugned law or action by proving that, for example, the deprivation of the petitioner's right to free speech and expression is saved by clause (2) of Article 19 since it is in the nature of a reasonable restriction on that right in the interests of matters mentioned in clause (2), or that, the petitioner has been deprived of his life or personal liberty according to a just, fair and reasonable procedure established by law. In cases, arising under Article 19, the burden is never on the petitioner to prove that the restriction is not reasonable or that the restriction is not in the interests of matters mentioned in clause (2). Likewise, in cases arising under Article 21, the burden is never on the petitioner to prove that the procedure prescribed by law which deprives him of his life or personal liberty is unjust, unfair or unreasonable. That is why the ratio of cases which fall under the category of the decision in Ram Krishna Dalmia must be restricted to those arising under Article 14 and cannot be extended to cases arising under Article 19 or Article 21 of the Constitution.
Saghir Ahmed v. The State of U.P. is a typical instance of a case arising under Article 19 of the Constitution. The U.P. Road Transport Act, 1951 which was passed prior to the First Amendment Amendment to the Constitution which introduced clause (6) in Article 19, was challenged in that case on the ground that it conflicted with the fundamental right of the petitioner guaranteed under Article 19 (1) (g) of the Constitution. Dealing with the question of burden of proof Mukherjea, J., who spoke for the Constitution Bench, stated the position thus:
"With regard to the second point also we do not think that the learned Judges have approached the question from the proper stand point. There is undoubtedly a presumption in favour of the constitutionality of a legislation. But when the enactment on the face of it is found to violate a fundamental right guaranteed under Article 19 (1) (g) of the Constitution, it must be held to be invalid unless those who support the legislation can bring it within the purview of the exception laid down in clause (6) of the article. If the respondents do not place any material before the Court to establish that the legislation comes within the permissible limits of clause (6), it is surely not for the appellants to prove negatively that the legislation was not reasonable and was not conducive to the welfare of the community." (Page 726) When the enactment on the face of it is violation of a fundamental right guaranteed by Article 19, the petitioner is absolved even of that modicum of an obligation to show that a right guaranteed to him by Article 19 is violated.
When the face of the law is not so clear, the petitioner does have to discharge the obligation of proving the fact of deprivation. But that only and nothing more.
A similar question arose in Khyerbari Tea Co. Ltd. v. The State of Assam, where the Assam Taxation (on Goods carried by road or on Inland Waterways) Act, 1961 was challenged on the ground that it placed unreasonable restrictions on the freedom of trade guaranteed by Article 301 and infringed the provision of Article 19 (1) (g) of the Constitution. The Act was upheld by a Constitution Bench of this Court by a majority of 4 to 1, 25 Gajendragadkar J., who spoke for the majority, relied on the decision in Saghir Ahmed and said:
"It is true that on several occasions, this Court has generally observed that a presumption of constitutionality arises where a statute is impeached as being unconstitutional, but as has been held in the case of Saghir Ahmed in regard to the fundamental right under Article 19 (1) (g), as soon as the invasion of the right is proved, it is for the State to prove its case that the impugned legislation falls within clause (6) of Article 19. The position may be different when we are dealing with Article 14, because under that Article the initial presumption of constitutionality may have a larger sway inasmuch as is may place the burden on the petitioner to show that the impugned law denied equality before the law, or equal protection of the laws. We may in this connection refer to the observations made by this Court in the case of Hamdard Dawakhana v. Union of India. Another principle which has to be borne in mind in examining the constitutionality of a statute, it was observed, is that it must be assumed that the legislature understands and appreciates the needs of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment. It is significant that all the decisions to which reference is made in support of this statement of the law are decisions under Article 14 of the Constitution.
Mr. Setalvad has fairly conceded that in view of the decision of this Court in the case of Saghir Ahmed, it would not be open to him to contend that even after the invasion of the fundamental right of a citizen is proved under Article 19 (1) (g), the onus would not shift to the State. In our opinion, the said decision is a clear authority for the proposition that once the invasion of the fundamental right under Article 19 (1) is proved, the State must justify its case under clause 26 (6) which is in the nature of an exception to the main provisions contained in Article 19 (1). The position with regard to the onus would be the same in dealing with the law passed under Art. 304(b). In fact, in the case of such a law, the position is somewhat stronger in favour of the citizen, because the very fact that a law is passed under Article 304(b) means clearly that it purports to restrict the freedom of trade. That being so, we think that as soon as it is shown that the Act invades the right of freedom of trade, it is necessary to enquire whether the State has proved that the restrictions imposed by way of taxation are reasonable and in the public interest within the meaning of Article 304(b). This enquiry would be of a similar character in regard to clause (6) of Article 19". (pp 1003-4). (emphasis supplied).
The observations made by Gajendragadkar J, in regard to the position arising under Article 304(b) are apposite to cases under article 21. Article 304(b) provides that, notwithstanding anything in article 301 or article 303, the Legislature of a State may by law "impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest". According to the learned Judge, in the case of a law passed under Article 304(b) the position on the question of burden of proof is somewhat stronger in favour of the citizen, because the very fact that the law is passed under that Article means clearly that it purports to restrict the freedom of trade. By analogy, the position is also somewhat stronger in favour of the petitioners in cases arising under Article 21, because the very fact that, in defence, a law is relied upon as prescribing a procedure for depriving a person of his life or personal liberty means clearly that the law purports to deprive him of these rights. Therefore, as soon as it is shown that the Act invades a right guaranteed by Article 21, it is necessary to enquire whether the State has proved that the person has been deprived of his life or personal liberty according to procedure established by law, that is to say, by a procedure which is just, fair and reasonable.
Another decision in the same category of cases is Mohd. Faruk v. State of Madhya Pradesh, in which the State Government 27 issued a notificatio
