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PETITIONER: DEENA @ DEENA DAYAL ETC. ETC.

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT23/09/1983

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: 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  is  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)

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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

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(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

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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 is not that  the death  sentence shall not be executed but that it shall not, be executed in a cruel, barbarous or degrading

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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. 323; 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

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of  Art.  21  of  the  Constitution  was  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 unfavourable 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

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a procedure which is first, fair and reasonable. [23 D-H]      Any case,  even a  locus classicus  is an authority for what it  decides. It is 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]

JUDGMENT:      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.

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    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

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    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

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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

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    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 specifi- 15 cally 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

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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

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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  were 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

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    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

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    on the  party which  assails the  same. In  the case of      Mohd. Hanif  Quareshi v.  The  State  of  Bihar,  while      adverting to this aspect Das, C J. 20      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 learned  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

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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

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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. 24      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,

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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

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    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 some what 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  notification cancelling  the confirmation  of  the Municipal  bye-laws  in  so  far  as  they  related  to  the permission  to  the  slaughtering  of  bulls  and  bullocks. Dealing  with   the  challenge  of  the  petitioner  to  the notification on the ground that it infringed his fundamental right under  Article 19(1)(g)  of the Constitution Shah, J., who spoke for the Constitution Bench, observed:           "When the  validity of  a law  placing restriction      upon the  exercise of  fundamental rights in Art. 19(1)      is challenged,  the onus of proving to the satisfaction

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    of the  Court that  the restriction  is reasonable lies      upon the  State......Imposition of  restriction on  the      exercise of  a fundamental  right may be in the form of      control or  prohibition, but  when the  exercise  of  a      fundamental right  is prohibited, the burden of proving      that a total ban on the exercise of the right alone may      ensure the  maintenance of  the general public interest      lies heavily upon the State." (pp. 160-161) When, in  a matter  arising under  Article  21,  the  person aggrieved is  found to  have been  totally deprived  of  his personal liberty  or is being deprived of his right to life, burden of  proving that the procedure established by law for such deprivation  is just,  fair and reasonable lies heavily upon the State.      This discussion  will be  incomplete  without  a  close examination of the decisions of this Court in B. Banerjee v. Anita Pan  and Pathumma  v. State of Kerala, which have been referred to by Sarkaria, J., in Bachan Singh as evidencing a "contrary trend" according to which, even in regard to cases under Article  19, there is an initial presumption in favour of the  constitutionality of  the statute  and the burden of rebutting that  presumption lies  on the  person who asserts that the  statute is  unconstitutional. In  B.  Banerjee,  a three-Judge Bench of this Court had to consider the question whether sub-section  (3A) which was introduced in section 13 of the  West Bengal Premises Tenancy Act, 1956 was violative of Article  19(1)(f)  of  the  Constitution.  By  the  newly introduced subsection,  the transferee  of a property cannot file an  eviction suit  against his  tenant for  a period of three years  from the  date  of  transfer,  on  the  grounds mentioned in  clauses (f)  and (ff)  of section 13(1) of the Act. We have already extracted the relevant passage from the judgment of Krishna Iyer, J., who spoke for the Court in 28 that case. The learned Judge said that presumption had to be raised that  the legislature understands and appreciates the needs of  the people  and that  some courts  had gone to the extent  of  holding  that  because  of  the  presumption  of constitutionality which  every statute  carries with it, the law will not be declared unconstitutional unless the case is so clear  as to be free from doubt. The learned Judge added, citing Seervai,  that "to  doubt the  constitutionality of a law is  to resolve it in favour of its validity". With great respect, the  judgment in  B. Banerjee overlooks the binding decisions in Saghir Ahmed, Khyerbari Tea Co. and Mohd. Faruk which are  directly in point. Not only are binding decisions not referred  to in the judgment but, in support of the view propounded by  the Court,  Krishna Iyer,  J., has  cited the decision in  Ram Krishna  Dalmia which,  as we  have  stated earlier, must be limited in its application to cases arising under Article  14 of the Constitution. To apply mechanically the decisions  under  Article  14  to  cases  arising  under Article 19  is to ignore the significant distinction between the nature  of the  rights conferred by the two articles and their purport  and content.  B. Banerjee cannot therefore be regarded as  an authority  for the proposition contended for by the  learned Attorney-General.  Evidently, the landlord’s contention  that   a  beneficent  provision,  aimed  at  the protection of  tenants harassed  by motivated  transfers  of properties, was  unconstitutional evoked  a stern  response. That is  understandable. But, in the process of highlighting the need  for social  welfare legislation  in  the  area  of landlord-tenant  relationship,   the   distinction   between Article 14  and Article  19 in  so far  as it bears upon the question of burden of proof failed to receive any attention.

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The Bar  too would  seem not  to have drawn the attention of the Court  to that distinction and to the judgments which we have discussed a little earlier.      Pathumma  is   a  seven-Judge  Bench  decision  on  the question whether  the restrictions  imposed  by  the  Kerala Agriculturists  (Debt  Relief)  Act,  1970  violate  Article 19(1)(f) and  Article 14.  The appellants therein challenged section  20   of  the   Act  particularly,   which  entitles agricultural debtors to recover properties sold in execution of decrees  passed against  them, Fazal  Ali, J.,  who spoke four out  of the  seven learned Judges, refers at the outset of the  judgment to  the "approach which a Court has to make and the  principles by  which it  has to  be guided  in such matters". After  stating that  the Courts must interpret the Constitution: 29           "against the  social setting  of the country so as      to show  a complete consciousness and deep awareness of      the growing requirements of the society, the increasing      needs of  the nation,  the burning  problems of the day      and the  complex issues  facing the  people  which  the      legislature   in   its   wisdom,   through   beneficial      legislation, seeks to solve". the learned  Judge observes  that since that the legislature is in  the best  position to  understand and  appreciate the needs of  the people,  the Courts have recognised that there is "always"  a presumption in favour of constitutionality of a statute  and the  onus to prove its invalidity lies on the party  which   assails  the   same.  In   support  of   this proposition, the  learned Judge  relied upon the decision of this Court in Mohd. Hanif Quareshi v. The State of Bihar, in which Das,  C.J., restated  the two  propositions which were enunciated in Ram Krishna Dalmia.      We find  it difficult  to read the observations made by Fazal Ali,  J. on  behalf of  the four  learned Judges as an authority on  the question  of  burden  of  proof  in  cases arising under  Article 19  of the  Constitution. It  is true that section  20 of the Kerala Act of 1970 was challenged on the ground  that it  violates Article 19 (1) (f) but it must be emphasised that it was also challenged on the ground that sub-sections (3)  and (6)  thereof were violative of Article 14. The  observations made  by the  learned  Judge  and  the statement of  law contained  in his judgment would certainly apply to  cases arising  under Article 14, for reasons which we have  already discussed. It is reasonable to suppose that if, by  the use of the word "always", it was intended to lay down rules  as to burden of proof in regard to cases arising under Article  19 also,  some reference would have been made by the  learned Judge to the Constitution Bench decisions in Saghir Ahmed,  Khyerbari Tea  Co. and  Mohd. Faruk. The fact that these  decisions have not been referred to supports the inference that   the  observations made by the learned Judge at the  outset of  the judgment are of a general nature, not intended to  apply to  cases arising under Article 19 of the Constitution. The  Court, as  we have said, was also dealing with  a   challenge  under   Article  14   and  the  weighty observations made  by the  learned Judge  would apply to the arguments arising under that provision.      In support of the principles set out by him, Fazal Ali, J., relied upon the decision of a Constitution Bench of this Court in 30 Mohd, Hanif  Quareshi. In  that case,  laws  passed  by  the States of  Bihar,  U.P.  and  Madhya  Pradesh,  banning  the slaughter  of   certain  animals   were  challenged  by  the

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petitioners on  the ground  that  those  laws  violated  the fundamental rights guaranteed to them by Articles 14, 19 (1) and 25 of the Constitution. The Court, speaking through Das, C.J., first  disposed of  the preliminary question raised by Pandit Thakurdas  Bhargava that since the impugned Acts were passed in  discharge of  the obligation laid on the State by the  Directive   Principle  contained   in  Article  48,  no grievance  could  be  made  that  those  laws  violated  the fundamental rights  conferred on  the petitioners by Chapter III of  the Constitution. The Court rejected the preliminary objection and  turned to  the second  question as to whether the laws  passed by  the Legislatures  of the  three  States violated  the   provisions   of   Article   25(1)   of   the Constitution. After  rejecting  that  contention  also,  the Court  took   up  for  consideration  the  argument  of  the petitioners as  regards "the  denial of the equal protection of the  law" to them. The petitioners’ argument was that the impugned Acts  prejudicially affected only the Muslim Kasais who kill  cattle but not others who kill goats and sheep and therefore those  Acts were  violative of  Article 14  of the Constitution. It  is while dealing with this contention that the learned  Chief Justice made observations which have been extracted by  Fazal Ali,  J. The  observations made  by  the learned  Chief   Justice  regarding   the   presumption   of constitutionality and  the burden  being upon the person who attacks it  are specifically  made in the context of Article 14 as in Ram Krishna Dalima. We are therefore of the opinion that the  principles stated by Fazal Ali, J. on the question of burden  of proof  in Pathumma  may apply to cases arising under Article 14 but not to those, arising under Articles 19 and 21  of the  Constitution. In fact, in Laxmi Khandsari v. State of U.P., Fazal Ali, J., sitting with Kaushal, J., said that "It  is no  doubt well-established" that when a citizen complains of  the violation of a fundamental right conferred by Article  19, the  onus is  on  the  State  to  prove  "by acceptable evidence,  inevitable consequences  or sufficient materials" that the restriction is reasonable.      Bhagwati, J., in his dissenting opinion in Bachan Singh has expressed the view that the observations made by Krishna Iyer, J.,  in B.  Banerjee and by Fazal Ali, J., in Pathumma cannot apply  to cases  arising under  Articles 19 and 21 of the Constitution. We respectfully agree with that view. 31      The seven-Judge  Bench decision  in  Madhu  Limaye,  on which  Shri  Jethmalani  relies,  involved  a  challenge  to section 144  and  Chapter  VIII  of  the  Code  of  Criminal Procedure on  the  ground  that  those  provisions  violated clauses  (a),  (b),  (c)  and  (d)  of  Article  19  of  the Constitution. We have already extracted the passage from the judgment delivered  in that  case by  Hidayatullah, C.J., on which the  learned counsel  relies. That  passage shows that the Court  was considering  the  argument  advanced  by  the petitioners that  the preferred-position doctrine, which was said to be in vogue in America, was applicable in India. The argument was  that, according  to  that  doctrine,  any  law restricting the  freedom of  speech and expression, religion or assembly  must be taken on its face to be invalid till it was proved  to be  valid. Holding  that the doctrine did not have the  support of  even the  American Supreme  Court  any longer and  that the  unreasonableness of  the law had to be established, the  learned Chief Justice observed: "We do not start with  the presumption  that being  a  pre-constitution law,  the   burden  is  upon  the  State  to  establish  its validity,,.  Therefore,   according  to  the  learned  Chief Justice, "the  burden must  be placed  on those  who contend

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that the  particular law  has become  void after coming into force of  the Constitution  by reason  of Article 13(1) read with any  of the guaranteed freedoms". (emphasis supplied in both the  quotations). These observations may at first blush seem to support Shri Jethmalani’s contention but, as we have stated earlier,  it is wrong to extend the observations made in  one  context  to  an  entirely  different  context.  The question which  was considered  in Madhu  Limaye was whether certain provisions  of the Code of Criminal Procedure, which is  a   pre-Constitution   law,   are   violative   of   the Constitution. The  Contention was  that the Code of Criminal Procedure is  a pre-constitution Law and therefore the State must  justify   the  constitutionality  of  that  law.  That argument was  rejected with  the observation that "we cannot start with  the presumption  that a  pre-Constitution law is unconstitutional therefore the burden lies upon the State to establish its  validity". The  specific observation  on  the question of  burden to  the effect  that the  burden lies on those who  challenge the constitutionality of a law, is also made expressly in regard to the provisions of Article 13 (1) of the  Constitution which provides that the laws which were in force  before the commencement of the Constitution shall, in so  far as  they are  inconsistent with the provisions of Part III,  be void to the extent of such inconsistency. Shri Jethmalani is right that Madhu Limaye was not noticed in 32 Bachan Singh,  but we  are unable  to accept  his contention that the  decision is  an authority for the proposition that the  same  rule  of  burden  of  proof  must  apply  to  all constitutional challenges,  whether under  Article 14, 19 or 21 of the Constitution.      We must  hark back  to Bachan Singh with which we began the discussion  of the  question as  regards the  burden  of proof. Sarkaria,  J. observed in the majority judgement that "with regard to the onus, no hard and fast rule of universal application in  all situations  could be  deduced  from  the decided cases".  We have  made a modest attempt to show that cases arising  under Article  14 are covered by a rule as to burden of  proof which  is different  from  the  rule  which applies to  cases arising  under Articles  19 and  21 of the Constitution. In that sense, it is true to say that there is no hard  and fast rule of universal application which can be applied a  like to  all situations.  We have also dealt with the two  decisions in  B. Banerjee  and Pathumma  which  the Court had  evidently in  mind when  it spoke  of a ’contrary trend" which  was discernible  in the later decisions of the Court. After  referring to the Indian and the American cases bearing on the subject, the majority recorded its conclusion by saying  that "the  State has  discharged its  burden"  to establish that  death penalty  serves  as  a  deterrent,  by producing the  necessary data.  We  are  referring  to  this aspect of the decision in Bachan Singh in order to show that the judgment of the majority proceeded on the basis that the burden of  proving the  constitutionality of section 302 was on the  State and the State had successfully discharged that burden. Thus,  Bachan Singh  is an authority for proposition that in  cases arising under Article 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.      That disposes  of the  question of  burden of proof. In the light of this discussion, we must proceed to examine the question whether  the State  has discharged  the  burden  of proving that the provisions of section 354(5) of the Code of

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Criminal Procedure  are in  conformity with  the mandate  of Article 21.  Consistently with  the conclusion which we have recorded on  the question  of burden  of proof, we must hold that the  burden does  not lie  on the  petitioners to prove that the procedure prescribed by the aforesaid provision for taking life  is unjust, unfair or unreasonable. The impugned statue, on  the face  of it,  provides for  a procedure  for extinguishing 33 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  section 354(5)  of the Code for executing the death sentence  is just,  fair and  reasonable. That  burden includes the  obligation to prove that the said procedure is not harsh, cruel or degrading.      Has the  State discharged  this heavy  onus ?  We  have already  set  out  the  grounds  on  which  the  petitioners challenge the  constitutionality of  section 354(5)  of  the Code of  Criminal Procedure  which provides  that "When  any person is sentenced to death, the sentence shall direct that he be  hanged by the neck still he is dead". Stated briefly, the contention  of the petitioners is that section 354(5) of the Code is bad because:      1.   It is  impermissible to take human life even under           the decree  of a Court since it is inhuman to take           life under any circumstances;      2.   By reason  of the  provision contained  in Article           21, it is impermissible to cause pain or suffering           of any  kind whatsoever  in the  execution of  any           sentence,  much   more  while  executing  a  death           sentence;      3.   The method  of hanging  prescribed by  section 354           (5) for executing the death sentence is barbarous,           inhuman and degrading; and      4.   It is  the constitutional  obligation of the State           to provide  for humane  and dignified  method  for           executing  the  death  sentence,  which  does  not           involve  torture   of  any  kind.  If  the  method           prescribed by  section 354(5)  does not  meet this           requirement, no  death sentence  can  be  executed           since, no other method for executing that sentence           is prescribed by or is permissible under the law.      These arguments  are answered  by the  learned Attorney General by  contending 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  of degradation of  any kind;  that  the  method  prescribed  by section 354(5) for executing the death sentence 34 is a  humane and  dignified method  which involves the least amount  of  pain  and  cruelty;  that  no  other  method  of executing the  death sentence  is quicker  or less  painful; that Article 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, and  that, since  the method of hanging prescribed by section 354(5)  does  not  suffer  from  any  constitutional infirmity, the  question  of  the  Court  substituting  that method by any other method does not arise for consideration.      While  supporting   these  arguments  of  the  Attorney General, Shri  Ram Jethmalani added that unless, on the face of it,  the method  prescribed by  a  law  for  executing  a sentence is  revolting to  the conscience,  the Courts  must surrender their  discretion to the legislative judgment when

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the challenge  to the  constitutionality of the law is based on  considerations  which  the  Court  is  not  equipped  to evaluate by  manageable judicial standards. According to the learned counsel,  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.  The legislature has  recognised means  at its  command for self- education like the Law Commissions, the expression of public opinion,  the   result  of  scientific  investigations,  the sociological advance  and,  last  but  not  the  least,  the unfettered freedom  available to  the legislators to discuss matters of moment on the floor of the House and to keep them under constant  scrutiny. "Hands off the Hanging" is the sum and substance of Shri Jethmalani’s argument.      New dimensions  were added  to these  arguments by  the other learned  counsel. For  example, Shri  Salman  Khurshid advocated that  instead of  putting out  life  for  ever  by executing the  death sentence,  persons sentenced  to  death should be  deprived of  their eye  sight by blinding them so that, if  and when  they are  reformed, they  could be given back their  sight by  transplantation or  by whatever method medicine may  discover for  restoring the  eye sight. In the meanwhile, says counsel, justice shall have been done.      First, as  to Shri Jethmalani’s argument that we should leave to  the legislative wisdom the question as to how best the death sentence should be executed and that we should not project our  subjective views  into  the  decision  of  that question. We  find it  impossible to  accept this  argument. Matters of policy are certainly 35 for the  legislature to consider and therefore, by what mode or method  the death sentence should be executed, is for the legislature to  decide. As  stated in Grega v. Georgia, in a democratic society legislatures, not Courts, are constituted to respond  to the  moral values  of  the  people.  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  dictates  of  the Constitution is a matter not only subject to judicial review but  it  constitutes  a  legitimate  part  of  the  judicial function. As  Judges,  we  cannot  abdicate  the  obligation imposed upon  us by  the Constitution and throw our hands in despair with  the consolation  that after  all,  the  chosen representatives of  the people  have willed  that hanging is the best  method of executing the death sentence. We respect the judgment  of the people’s representatives to the extent, but only  to the  extent, that  as a  matter of  policy they considered that  the method  of hanging  provided by section 354(5) of  the Code  is the  least objectionable  method for executing the  death sentence. But, what the policy judgment of  the  legislature  leaves  outstanding  for  the  Court’s consideration is  the question whether the particular method prescribed by  law for  executing the  death sentence  is in consonance with  the Constitution.  This latter  question is manifestly for  the Courts  to decide.  The decision of that question 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,  our  plain  and  primary  duty  is  to  examine whether, even  if the  method selected by the legislature is

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the least  objectionable, it  is still open to the objection that in  involves undue torture, degradation and cruelty as, for example, by causing more pain than is strictly necessary or by  bringing about  a  lingering  death  or  because  the particular method  is liable,  frequently, to  fail  in  its mechanism. Our  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,  even  if  it  be  less objectionable than  any other  commonly accepted  method  of executing the  death sentence.  We  will  not  legislate  by directing the  since, if  at all, the provision contained in section  354(5)  is  unconstitutional,  the  death  sentence imposed upon the petitioners shall be executed 36 by the  method of  electrocution or  gas-chamber  or  lethal injection or shooting or guillotine and the like. Nor can we direct, as  canvassed by Shri Khurshid, that the petitioners be  temporarily  blinded.  That  would  be  legislating.  To pronounce  upon  the  constitutionality  of  a  law  is  not legislating,  even   if  such   pronouncement  involves  the consideration of  the evolving  standards  of  the  society. ’Cruelty’ and  ’torture’ are  not static  concepts. That  is why, the  chopping off  of limbs  which was  not  considered cruel centuries  ago or,  is not  considered cruel  in  some other parts  of the  world to-day, is impossible to conceive as a  punishment by  applying the  contemporary standards of the Indian  society. What  might not  have been  regarded as degrading or inhuman in days by gone may be revolting to the new sensitivities which emerge as civilization advances. The impact and  influence of the awareness of such sensitivities on the  decision of  the law’s  validity is  an  inseparable constituent of the judicial function.      This Court  is not  a third Chamber of the legislature. It has  no such  extra-territorial ambitions and it does not aspire to  do the  job of ’out-riders’, to use an expression Lord Devlin.  It is  simply the  highest Court  of  law  and justice in  a country  governed by  a written  Constitution, which,  it   is  its   primary  and  exclusive  function  to interpret. The  care  which  we  must  take  is  that  while interpreting the  laws and the Constitution, we ought not to be swayed  by passing passions or by populist sentiments. We must  do   our  duty  by  the  Constitution,  unaffected  by extraneous  considerations   and  guided   solely   by   the obligation to be fair and just, almost to a fault.      The State seeks to discharge its burden by relying upon the Reports  of Commissions  which are  based on  results of scientific investigation  into the  mechanics of the hanging process, the opinions of text-book writers, the predilection of sociologists,  the  proclivities  of  reformers  and,  of course, juristic exposition of the complex issue "to hang or not to hang". To some of these we must now turn.      In the  year 1949  the  Government  of  United  Kingdom appointed a  Commission to report upon the various facets of the capital  punishment. The Commission submitted its report in  September   1953  after   extensive  research  into  the questions referred  to it  and after  interviewing  experts, visiting jails  and examining  the merits  and  demerits  of hanging as  a  method  for  executing  the  death  sentence. Chapter 13 of the Royal Commission’s Report deals with 37 the "methods of execution". In paragraph 700 of that Chapter the  Commission  records  that  it  heard  evidence  on  the existing method of hanging from various witnesses, including Prison  Commissioners  and  Prison  officials,  one  Mr.  A. Pierepoint,  "the   most  experienced  executioner  in  this

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country", and  under-sheriffs responsible  for execution  in London and  Lancashire. The  Commission inspected  execution chambers   in   England   and   Scotland   and   was   given demonstrations of  the procedure  at an execution. They also received evidence  about executions  in the United States by means of electrocution and lethal gas. During their visit to the United  States, they  took the opportunity of inspecting the electric  chair in  two prisons. Lastly, they questioned medical witnesses about possible new methods of execution.      In paragraph  703 of  the Report  the Commission  notes that public  opinion was disturbed by evidence that the task of hanging  was  sometimes  bungled.  In  1885  a  condemned murderer  had  to  be  reprieved  after  three  unsuccessful attempts had  been made  to hang  him. There were also other untoward occurrences: Occasionally, a man might be given too short a  drop and die slowly of strangulation, or too long a drop and be decapitated. A Committee was therefore appointed in U.K.  in 1886 to report on the best way of ensuring "that all executions  may be  carried out  in  a  becoming  manner without risk of failure or miscarriage in any respect". This Committee made  recommendations about  the length  of  drop, improvements in  the apparatus  and  preliminary  tests  and precautions  which   were  designed  to  ensure  speedy  and painless death  by  dislocation  of  the  vertebrae  without decapitation. The  improved system  of hanging  now in vogue came into  being as  a result of the recommendations of this Committee. The  Home Office  informed  the  Commission  that "There is  no record  during  the  present  century  of  any failure or  mishap in  connection with an execution, and, as now carried  out, execution  by hanging  can be  regarded as speedy and certain".      In paragraph  704 of  the Report,  the Commission  says that it  was "on  the score  of humanity"  that execution by hanging was  defended by  witness after  witness. The Prison Officers held  the system  of hanging  to be  as  humane  as circumstances permit, while the Prison Medical Officers said "We cannot  conceive any  other method  which could  be more humane, efficient  of expeditious than judicial hanging. The Prison Chaplains called it "simple, humane 38 and expeditious".  The British  Medical Association told the Commission that  "hanging is  probably as speedy and certain as any  other method  could be  adopted. The  Royal  Medico- Psychological Association,  after stating that the method of execution   ought    to   be   "certain,   humane,   simple, instantaneous and  expeditious", said:  "On the  information available to  the Association, the method of hanging fulfils these criteria  more satisfactorily  than any  other so  far proposed or  in practice".  A knowledgeable witness told the Commission  that   the  method   of  hanging  was  "certain, painless, simple, humane and expeditious".      In paragraph  705 of  the Report, the Commission refers to the  interesting development that the method of execution whose special merit was originally thought to be that it was peculiarly degrading  and therefore  deterrent, was defended before it  on the  ground that  it was  uniquely humane. The reason for  this surprising inversion is that as a result of the  recommendations   made  by   the  Committee  which  was appointed in  1886, "a  method originally barbarous..... has been successfully humanised".      In Paragraph  708, the  Commission proceeds  to examine the question  whether there  is any  seemly and  practicable method of  execution which is as painless as hanging or even more speedy,  or which, even though it may have no advantage over hanging  in those  respects, is free from the degrading

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associations of  that method.  If  capital  punishment  were being  introduced   for  the   first  time,  the  Commission considered it  unlikely that  hanging would  be chosen  as a method for  executing the  death sentence.  The  Commission, however, found  that no  useful propose  would be  served by making experiments  unless the  necessity was  urgent or the utility evident.  And this  applied with  special force to a subject  which   was  highly  charged  emotionally  and  was exceptionally controversial.      In paragraph 709, the Commission refers to five methods of execution  of the death sentence which were then in vogue in the  different parts  of the  world. Electrocution was in vogue in  23 States  of U.S.A.;  Guillotine  in  France  and Belgium; Hangiug  in  England,  Scotland,  the  Commonwealth countries and  10 States  of U.S.A.;  and lethal  gas  in  8 States of  U.S.A. Shooting was in vogue in the State of Utah in America  which  allowed  a  choice  between  hanging  and shooting. Besides, shooting was used in almost every 39 country as  a method  of execution  of persons  sentenced to death for offences against the Military Code.      Rejecting  Guillotine   and  shooting  as  methods  for executing the  death sentence for the reason that the former produces mutilation and the latter is inefficient, uncertain and unacceptable  as a  standard method of civil executions, the  Commission   examined  the   mechanics  of  hanging  in paragraphs 711 to 716 of its Report. Paragraph 714, which is relevant for  our purpose,  shows that a valuable memorandum was submitted  to the  Commission by  the  Coroner  for  the Northern District  of London,  at whose  instance many post- mortem examinations  following upon hanging were made by the late Sir  Bernard Spilsbury, a distinguished man of medicine who had  figured as  a witness in many important trials, and other highly qualified pathologists. The Coroner, Mr Bentley Purchase, had  access to  the records  of  such  post-mortem examinations. The memorandum showed that the effective cause of death  in 58  executions at  two  prisons  was  "fracture dislocation  of   cervical  vertebrae   with  laceration  or crushing of  the cord"  and that any such dislocation causes immediate unconsciousness,  there being  no chance  of later recovery of  consciousness  since  breathing  is  no  longer possible. The  beating of  the heart thereafter for any time upto 20 minutes is a purely automatic function. In the words of the  Corner:  "I  have  no  doubt  of  the  efficacy  and immediate and  painless finality  of the  present method  of judicial execution".      After  examining   the  mechanics  of  the  methods  of electrocution and  lethal gas  in paragraphs 717 to 722, the Commission   considers    the   question   as   to   whether electrocution or  lethal gas  was preferable  to hanging  on considerations of "humanity, certainty and decency",      The Commission  observes  in  paragraph  724  that  the requirements of  humanity are  essentially two: (1) that the preliminaries to  the acts  of execution  should be as quick and as  simple as  possible, and  free  from  anything  that unnecessarily  sharpens  the  poignancy  of  the  prisoner’s apprehension, and  (2) that  the  act  of  execution  should produce immediate  unconsciousness passing  quickly in  into death. Paragraph  725 contains  a comparative  table showing the  length   of  time   taken  by   the  preliminaries   in electrocution, lethal  gas and hanging. On the basis of that comparative analysis,  the Commission records its conclusion in paragraph 726 that, there was ’no room for doubt’ that in the matter  of time  taken by the preliminaries, hanging was superior to

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40 either electrocution or lethal gas. In all the three methods the prisoner  had to  be restrained in some way or the other prior to  the execution  but, in electrocution the execution is preceded  by shaving and handcuffing while, in lethal gas the prisoner  has to  be stripped  of his  clothes, except a pair of shorts, in order that pockets of gas may not persist in the  clothes. In  addition, a  stethoscope head has to be strapped to the chest under the lethal gas method.      On the question of "certainty", the Commission observes in paragraph  729 of  its Report that the equipment required for hanging  is simpler  than that  which  is  required  for electrocution or execution by lethal gas. The lethal chamber is a complicated piece of mechanism while the electric chair depends for  its efficacy  upon the  supply  of  electricity which is  usually taken from commercial sources. In fact, in the  United   States,  executions   by  electrocutions  were occasionally delayed by failure of the power. The Commission recorded its conclusion by saying that neither electrocution nor lethal chamber had any advantage over hanging, in so far as the requirement of "certainty" is concerned.      In paragraph  732, the  Commission deals with the third aspect,  namely,   "Decency"  in   execution  of  the  death sentence. It  says that while considering this aspect it had kept two  things in  mind:  Firstly,  the  obligation  which obviously rests  on every  civilised State  to  conduct  its judicial  executions   with  decorum,  and,  secondly,  that judicial execution  should be  performed without  brutality, that it  should avoid gross physical violence and should not mutilate or  distort the  body. The  Commission records  its conclusion by  saying that  in so  far as the requirement of decency  is   concerned,  the  other  two  methods  have  an advantage over  hanging though,  all the  three methods were now used with all the decency possible in the circumstances.      The  Commission   records  its   final  conclusion   in paragraph 734  of the  Report by  saying that after weighing all the  factors carefully and bearing in mind that the onus of proof  was on  the advocates  of  change,  it  could  not recommend that  either electrocution  or gas  chamber should replace hanging  as a  method of  judicial execution: In the matter of humanity and certainty, the advantage lay with the system  of   hanging;  in  regard  to.  one  aspect  of  the requirement  of   decency  the   other  two   methods   were preferable. But, according to the Commission, that advantage could not be regarded as enough to turn the scale. 41      The counter-affidavit filed on behalf of the Government of India  by Shri  P.S. Ananthanarayanan,  Under  Secretary, Ministry of Home Affairs, shows that the Director General of Health  Services,   who  is   the  highest  adviser  to  the Government  of  India  in  these  and  allied  matters,  was consulted on  the question  whether the  system  of  hanging which is prevalent in India for executing the death sentence should be changed. The D.G.H.S. advised as follows:-      "Subject:-Mode  of   ending  the   life  of  a  convict                sentenced to death.           Continuation this  Directorate u.o. No. 31-204/55-      MI, dated the 10th April, 1956, on the above subject.           This Directorate  has consulted the Administrative      Medical    Officers,    Chemical    examiners,    other      criminologists and  experts, etc.,  On the  subject and      the views  expressed by  them fall  into the  following      groups:-      (1)  Those who  consider the  present method of hanging           being the best                     .... Number 15

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    (2)  Those favouring Electrocution      .... Number 17      (3)  Those favouring Medication, etc.   .... Number 3           Even though  electrocution has been advocated as a      desirable method  by a  considerable  number  of  those      consulted, it  is not a method without its drawbacks in      that death  is stated  in this  case not  to be  always      instantaneous or  even painless  and that  this  method      involves the  setting up  of a  considerable mechanical      outfit. From the replies received from various sources,      we  also  find  that  those  who  can  speak  with  the      authority of  experience and knowledge have spoken with      conviction regarding judicial hanging, properly carried      out, as  being the  quickest and  least painful method.      This is  also the  view of  the Serologist and Chemical      Examiner to  the Government  of India, Calcutta and the      majority view  of  the  Central  Medico-Legal  Advisory      Committee. We  are inclined to agree with this view and      do not  recommend any  change in  the present method of      execution by  judicial hanging  in the present state of      scientific knowledge." 42 Paragraph 16 of the counter-affidavit says that the D.G.H.S. held to the same view as recently as in February 1982.      The 35th  Report of  the Law  Commission  of  India  on Capital Punishment,  dated September  30,  1967  deals  with "Execution of  Sentences"  in  Chapter  XV.  The  Commission observes in paragraph 1097 of the Report that though hanging continued to  be the most prevalent method for executing the death sentence,  the course  of events  showed that  it  was being slowly  abandoned. Thus,  while in  1930,17 States  in U.S.A. used  to employ  that method,  only 6  retained it in 1967. Again,  while it  was in  force in  Yugoslavia  before 1950, it was replaced by the firing squad in that year.      In paragraph  1098, the  Law Commission  deals  briefly with the  Report of the Royal Commission of England while in paragraph 1099,  it discusses  the Report  of  the  Canadian Committee on the same subject. It would appear from what the Law  Commission  has  stated  in  this  paragraph  that  the Canadian Committee  considered  four  different  methods  of execution, namely,  hanging, electrocution,  gas-chamber and lethal injection.  The last mentioned method was believed to ensure instantaneous  and painless  death, but it could only be accomplished  by an intravenous injection requiring skill and the  Canadian Committee  considered that it would not be reasonable to  expect a  medical doctor to perform a task so repugnant to  the  traditions  of  the  medical  profession. Moreover, an  intravenous could  not be  administered unless the condemned  person was entirely acquiescent. The Canadian Committee appears to have noted that hangings in Canada were not conducted  with the same degree of precision as in U.K., as a  result of which it was difficult to know how the death was  caused  and  whether  the  loss  of  consciousness  had supervened instantaneously.  Holding on  the  basis  of  the evidence before it that hanging was regarded generally as an obsolete,  if   not  a   barbarous  method,   the  Committee recommended   that    hanging   should    be   replaced   by electrocution.      In paragraphs  1101 to 1148 (pages 339 to 345), the Law Commission of  India extracts the views which were expressed before it  as to  the ideal  method for  executing the death sentence.  Noting   in  paragraph  1149  that  there  was  a considerable body  of opinion which would like hanging to be replaced by  something "more  humane and more painless", the Commission says  in paragraph  1150 that to a certain extent the matter was one of medical opinion. The

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43 general view  expressed before  the Commission  was  that  a method which  is certain,  humane quick and decent should be adopted for  executing the  death sentence. The society owed it to  itself that the agony at the exact point of execution should be  kept to the minimum. But the Commission felt that it was difficult to express any positive opinion as to which of the three methods-hanging, electrocution and gas-chamber- satisfied these  tests most, particularly when electrocution and gas-chamber  were untried  in India.  In paragraph 1151, the Commission records its conclusion by saying:           "We do not therefore recommend a change in the law      on this point." In other  words, the  recommendation of  the Commission  was that death  sentence should  be executed  by the  method  of hanging  prescribed   in  section  354(5)  of  the  Criminal Procedure Code, since there were no circumstances justifying its substitution  by any  other method  and since,  no other method was shown to be more satisfactory.      In February 1978, Dr. Hira Singh, Prison Adviser to the National Institute  of Social Defence, submitted his opinion to the  Ministry of  Home Affairs,  Government of  India, as follows:           "In ancient  days the  execution of death sentence      was often  attended  by  cruel  forms  of  torture  and      suffering inflicted  on the  offender. With the passage      of  time,   however,  the  methods  of  execution  have      undergone various  changes. The  old practices  such as      beheading, drawing,  stoning,  impaling,  precipitation      from a  height, etc.,  have been  gradually replaced in      all civilised  countries by  new  methods  of  hanging,      electrocution, gas  chamber and shooting. These changes      have occurred  mainly on the premise that death penalty      means simply the deprivation of life and as such should      be made  as quicker  and less  painful as possible. The      old methods were considered inhuman.           According  to  the  study  on  Capital  Punishment      published  by  the  United  Nations  in  1962,  hanging      remains  the  most  frequent  method  of  execution  in      various coun- 44      tries  including   the  United  Kingdom  and  generally      throughout the Commonwealth. In the United States it is      no doubt  losing ground  in favour of electrocution and      lethal gas.  The modern  method of hanging differs from      its traditional  form as  it  involves  an  abrupt  and      immediate severance  of  the  cervical  vertebrae.  The      whole process  is carried out with care and skill so as      to avoid  any bungling and untoward incident. The State      Jail Manuals  contain  elaborate  instructions  on  the      arrangement  for   execution,  inspection  of  gallows,      testing of equipment and the manner of execution." The Prison  Adviser thereafter sets out guidelines contained in the  Model Prison  Manual which have to be followed while executing the  death sentence  by the  method of hanging. In paragraph 3  of his  opinion he  says that  the chances of a mishap in  the electrocution  process cannot  be  eliminated altogether and  that in  the United  States, there have been occasions when  the current  failed to  reach the chair when the switch was engaged. After describing the procedure which is adopted  in the methods of electrocution, gas chamber and shooting, he  says that  there are  cases  on  record  where executions  by  shooting  were  bungled  by  nervous  firing squads. Dr. Hira Singh concludes:           "The question  of introducing  electric  chair  in

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    place of hanging as a mode of execution may be examined      from the  administrative as  well as humanitarian view-      points. It  is often argued that death by hanging takes      lesser time  to execute than the other modes, though it      may not  be invariably true. In any case electric chair      has in  no way  proved to be more efficient in reducing      pain or suffering inflicted on the offender. In hanging      the  body   is  liable   to  be   disfigured   but   in      electrocution  also  the  leg  is  some-times  slightly      burnt. Above  all electrocution  involves much costlier      equipment and  operational preciseness than hanging. In      view of  such  considerations  there  seems  to  be  no      particular advantage  in switching over to the electric      chair in the execution of death sentence even if such a      system may outwardly look to be more sophisticated." The opinion  of the  Prison Adviser  is at Annexure V to the counter-affidavit of Shri P.S. Ananthanarayanan. 45      We had  allowed one  Dr. Chandrakant  of the  All India Institute of  Medical Sciences,  New Delhi,  to intervene in these proceedings. We may, with some advantage, refer to his written submissions.  Dr. Chandrakant  did his  M.B.B.S.  in 1970 and  was in the Army Medical Corps for a period of five years. He  holds a  Diploma in Oto-rhino-Laryngology and the degree of  M.D. in  Forensic  Medicine  and  Toxicology.  It appears that  he has also done a three-year degree course of LL.B. from the Allahabad University. He is presently working as a  Lecturer in the Department of Forensic Medicine of the Institute, in  which capacity  he  is  required  to  conduct Medico-legal autopsies.  He claims  that  he  has  conducted approximately  1100   medico-legal  autopsies   uptil   now. According to  him, hanging  is the best method for executing the death  sentence  since  by  that  method,  death  ensues instantaneously due  to a combination of shock, asphyxia and crushing  of   Spinal  Medulla.   He  says  that  there  are misconceived  notions   about  judicial   hanging   due   to improvised and  faulty mechanism  of the process involved in suicidal hangings  and due  to  lack  of  knowledge  of  the anatomical  structure  of  the  neck  and  human  body,  Dr. Chandrakant describes  the human  anatomy and  says that  in hanging, whenever  there is  injury to  Medulla, to  Pons or Medulla oblongata,  all the  three vital  centres called  as "Tripod of  life" are  affected which  causes  instantaneous death. Dr.  Chandrakant has  given a  brief  description  of about 15  different methods  which have been followed at one time or the other for executing the death sentence.      In a  book called "Hanging through the ages (History of Capital Punishment)"  by George R. Scott (Torchstream Books, London), the  entire history of the technique of hanging has been  traced.   The  author   says  at  page  211  that  the introduction of an improved, technique of hanging has served to expedite  the process of hanging, giving less pain to the prisoner and  that, "the  long drop"  and other improvements have achieved  a great  deal though, despite everything that has been done, accidents are inevitable.      In "Kenny’s  Outlines of Criminal Law," (19th Ed. 1966) edited by J.W. Cecil Turner, it is stated at page 618, foot- note  5   that:  "Hanging   does  not  operate  now  through suffocation,  but  by  a  ‘long  drop’,  invented  by  Prof. Haughton of  Dublin, which  dislocates the  vertebrae and is calculated to produce an instantaneous and painless death." 46      In "New  Horizons in Criminology" by Harry Elmer Barnes and Negley K. Teeters (3rd Ed. 1966), it is stated: "Society has resorted to many different methods in executing criminal

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and other  allegedly dangerous persons. Drowning, stoning to death, burning at the state and beheading have all been used in the  past. Of all the modern methods of administering the death penalty,  hanging has  been the  most widely  used. We read of  hangings in  the earliest  historic literature  and throughout the  world even today it is still the most widely used.,,      In a  publication called ‘Capital Punishment’ under the auspices of  the United  Nations, Department of Economic and Social Affairs, New York, 1962, it is stated in paragraph 57 of the chapter called ‘The Execution’ that in earlier times, a great  variety of  methods of  execution was  known to the law, the carrying out of a sentence of death being sometimes attended by  ‘cruel forms  of torture  intended  in  certain cases to aggravate the suffering. The publication says: .‘On grounds of  humanity and  of the  respect due  to the  human person  the   modern  law   has  in  general  dropped  these practices. The  death penalty  means  nowadays,  simply  the deprivation of  life.  The  differences  which  today  exist regarding the methods of carrying out the death sentence are attributable to the efforts made to render death quicker and less painful".  The same paragraph mentions that hanging has generally been  abandoned in the United States. According to the issue  of ‘Time’  magazine dated  January 24, 1983, only four States  of America  still prescribe hanging as a method for executing  the death  sentence.  Paragraph  59  of  U.N. publication says  that "Hanging  remains the  most  frequent method in  use". It  lists over 25 countries of the world in which the  method of hanging is used for executing the death sentence.      In so far as the judicial exposition of this subject is concerned, attention  may be drawn to the latest decision of this Court  in Bachan  Singh in which the majority said that under the  successive Criminal  Procedure Codes  which  have been in  force in India for about 100 years, the sentence of death is  to be  carried out  by the  method of hanging. The founding fathers  of the  Constitution, some  of  whom  were distinguished jurists  (in the  proper sense  of that term), cannot be  assumed to be ignorant of the provision contained in section  354(5) of  the Code.  And, despite the fact that the death  sentence has  to  be  carried  out  by  the  mode prescribed in that 47 section, they  recognised the existence and validity of that sentence. The  majority accepted  the  proposition  that  by reason of  the provision  contained in Article 21, no person can be  deprived of  his life  or personal liberty except in accordance  with   fair,  just   and  reasonable   procedure established by  law. Applying  that postulate,  it  observed that the  framers of  the Constitution did not consider that either the  death sentence  or the  traditional mode  of its execution prescribed  by section  354(5) of  the Code  was a degrading punishment  which would  defile the dignity of the individual within  the contemplation  of  the  Constitution. These observations are significant, with the caveat that the question as  regards the  validity of  section 354(5) of the Code was not directly in issue in Bachan Singh.      This then  is the  data on  which reliance is or can be placed by  the Union  of India  for discharging  the  burden which rests  upon it  for proving that the method of hanging prescribed by  section 354(5)  of the  Code does not violate the guarantee contained in Article 21 of the Constitution.      Though it  must be  conceded that  the various  learned counsel for  the petitioners  led by  Shri R.K. Garg and Dr. N.M. Ghatate  have argued  their respective cases with great

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fervour, industry  and tenacity,  the writ petitions furnish no data  or reasons  whatsoever as  to why the method of the hanging is  violative of  Article  21.  Mostly,  the  prayer clauses of  petitions simply  contain  a  request  that  the system of  hanging should  be declared  to be  violative  of Articles 14,  19 and 21 of the Constitution. Articles 14 and 19 were  hardly even  mentioned in the arguments on the main point and,  rightly so.  The arguments advanced in regard to the violation of Article 21 went far beyond the scope of the averments  in   the  writ   petitions  but   that   is   not unprecedented in this Court. Moreover, in a matter involving the question  of life  and death,  technicalities cannot  be allowed  to   defeat  justice.   We  could  have  asked  the petitioners to  amend their  petitions but rather than doing so, we  decided to  hear  a  full-dressed  argument  on  the validity of  section 354(5)  of the  Code, regardless of the paucity of pleadings, especially since the writ petitions do not  involve   any  challenge   under  Article   14  of  the Constitution. We  have heard  the  petitioners’  counsel  at length on  every conceivable aspect of the question involved in these petitions. We have proceeded to this judgment, on a careful consideration of the diverse submissions made before us. 48      Dr. Ghatate,  who began  the arguments on behalf of the petitioners, contended  that the  method of hanging involves pain,  degradation   and  suffering   wherefor  that  method violates Article  21 and  cannot be  used for  executing the death sentence.  In support  of this  argument, he  drew our attention to  certain passages in the dissenting judgment of Bhagwati, J.,  in Bachan  Singh. At  page 285 of the Report, the learned Judge has extracted a passage from a decision of the California  Supreme Court  in which  it  is  said  that, "Penologists and  medical experts  agree that the process of carrying out  a verdict  of death  is often so degrading and brutalizing  to   the  human   spirit   as   to   constitute psychological torture".  In the  absence of citation, we are unable to  trace the decision or to see the context in which the   California   Supreme   Court   made   the   particular observation. We  do not  know  who  these  "Penologists  and medical experts"  are and  where they  have expressed agreed opinions attributed  to them.  It is  not even clear whether the California  Court was dealing with the validity of death penalty or  with the  methods of executing that penalty and, if the  latter, whether it has condemned every method of the execution and not the method of hanging only. The purport of the passage  seems  to  indicate  that  the  question  under inquiry  was   that  death  sentence  is  a  ‘cruel  unusual punishment’. As  we have  shown, the  expert evidence before the Royal  Commission of  U.K. was  quite to  the  contrary, especially in  regard to  the improved  technique of hanging which came  into operation  after the recommendations of the Committee appointed in 1886 were implemented.      At page  287 of  the  Report  Bhagwati,  J.,  has  made certain observations which also Dr. Ghatate has pressed into service. We  have already extracted those observations while dealing  with  the  preliminary  objection  of  the  learned Solicitor General.  The sum  and substance of the particular passage is  that  "hanging  is  undoubtedly  accompanied  by intense physical  torture and  pain".  In  support  of  this conclusion, the  learned Judge  quotes Warden  Duffy of  San Quentin, a high security prison in U.S.A,, who had described with  particularity  the  procedure  which  obtains  at  the hangings of  prisoners.  After  extracting  a  statement  of Warden Duffy  at page  288, the  learned Judge says: "If the

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drop is  too short, there will be a slow and agonising death by strangulation.  On the  other hand,  if the  drop is  too long, the  head will  be torn  off. In  England centuries of practice have  produced a  detailed chart  relating a  man’s weight and  physical condition to the proper length of drop, but even there mistakes 49 have been  made." Our  difficulty again  is the  absence  of citation of  the descriptive  hassage which  appears at page 288 of  the Report. We do not know where, and in which year, Warden Duffy  gave the particular description of the hanging process. The  process described by him is apparently similar to the  one which  is now  regarded as  outmoded and  is  no longer in use. Besides, Warden Duffy was a stern opponent of the capital  punishment. In  a series  of articles under the caption "San  Quentin is  my Home"  which  appeared  in  the Saturday Evening  Post, March  25-May 13, 1950, he denounced the capital  sentence by pointing out, inter alia, how every known method of executing that sentence is fraught with pain and suffering.  We will  have occasion  to call attention to what he  has to  say about the Gas Chamber too. But evidence before us  shows that the mechanics of the method of hanging has undergone  significant improvement over the years and if the expression is not inapt in the context, hanging has been almost perfected into a science. The chances of a mishap are minimal now  though, the chances of an accident can never be eliminated  totally,   If  that  could  be  done,  the  word "accident" will not appear in the dictionary of wise men. In regard  to  the  improvements  effected  in  the  method  of hanging, we  will only draw attention to the findings of the Royal Commission  and the opinion expressed by other experts to which we have already referred.      Finally, Dr.  Ghatate relies  upon an  account given in 1927 by  a Surgeon  who witnessed  a double execution, which has been  extracted in the judgment of Bhagwati, J., at page 288 of  the Report.  It appears  from the  Surgeon’s account that ‘one  of the  supposed corpses’  gave a  gasp which the Surgeon was,  very naturally,  horrified to hear. Two bodies not completely  dead were then raised to the scaffold again. In  his   account  the   Surgeon  has   stated  that  though dislocation of  the neck  is the  ideal aimed at in hanging, that had  proved rather  an exception in his own post-mortem findings which showed that in the majority of instances, the cause of  death was  strangulation and  asphyxia. Relying on this  account   Bhagwati,  J.,  concludes:  "These  passages clearly  establish   beyond  doubt  that  the  execution  of sentence of  death by  hanging does involve intense physical pain and  suffering, though  it may  be regarded  by some as more humane  than electrocution  or  application  of  lethal gas." With  great respect,  our difficulty is the same as in regard to  the two earlier passages extracted by the learned Judge, one  from the  California Supreme  Court judgment and the other from Warden Duffy. We 50 do not  know who  the Surgon is and from where the quotation is extracted. Besides, as we have repeatedly said, there has been a  significant improvement in the mechanism of hanging. Old experiences are not to be discarded out of hand but they cannot be  applied to  new  situations  without  a  critical examination  of   their  relevance   to  those   situations. Otherwise,  technical   sciences,  particular   the  medical science, shall have made their remarkable advance in vain.      We have  given our  anious and respectful consideration to the  passages extracted  and the observations made by our learned Brother  Bhagwati. The fact that these are contained

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in a  majority judgment  is no  justification  for  ignoring them. In  a matter  as socially  sensitive as  this,  it  is improper to  overlook the opposing point of view, whether it is expressed in a minority judgment or elsewhere.      Bhagwati, J.,  says in the last passage extracted by us from his  judgment that  the method  of hanging  is  perhaps regarded by  some as  more humane  than electrocution or the application of  lethal gas. Dr. Ghatate has his own point of view. He contends that electrocution is the quickest and the simplest method  of executing  the death  sentence, in which there is  no scope  for failure of the apparatus. He has two alternative submissions to make: One, falling electrocution, administration of  lethal injection  should be  adopted as a method for  executing the  death sentence  and, two, failing lethal injection,  shooting by  a  firing  squad  should  be resorted to. We assume that the learned counsel has obtained his client’s  instructions on  the use  of these alternative methods, particularly shooting.      Truly, we are not concerned to determine the merits and demerits of these alternative methods of execution which are canvassed by  the learned  counsel and  some of which are in vogue in  some other  parts of  the  world.  If  the  method prescribed by  section 354(5)  of the  Code is  violative of Article 21, the matter must rest there because. as contended by Dr.  Ghatate himself,  the Court  cannot  substitute  any other method  of execution  for the method prescribed by law and which  alone is  permissible under  the law. However, an understanding of  the  process  involved  in  the  competing methods used  for executing  the death  sentence  and  their comparative assessment  is not  altogether pointless.  If it can be  demonstrated clearly  that some  other method  has a real and  definite advantage over the method of hanging, the question will  naturally arise  as to why the State does not adopt that method. An arbitrary rejection 51 of a  method proved  to be  simpler, quicker and more humane than hanging may not answer the constitutional prescription.      The Royal  Commission mentions  in paragraph 717 of its Report that  during their  visit to  America, they inspected the electric  chairs in  the Sing  Sing Prison, New York and the District  of Columbia  Jail, Washington,  and that  they received evidence  about the  use of  the electric  chair in other States. The Commission has given the following account of the  method  of  electrocution  based  primarily  on  the information obtained by them in Washington:           "The execution  takes place at 10 a.m. At midnight      on the  preceding night the condemned man is taken from      the condemned  cell  block  to  a  cell  adjoining  the      electrocution chamber.  About 5.30 a.m., the top of his      head and  the calf  of one  leg are  shaved  to  afford      direct contact  with the  electrodes. (The  prisoner is      usually handcuffed during this operation to prevent him      from seizing  the  razor.)  At  7.15  a.m.,  the  death      warrant is read to him and about 10 O’clock he is taken      to the  electrocution chamber....  Three officers strap      the condemned  man to  the chair,  tying him around the      waist, legs  and wrists. A mask is placed over his face      and the  electrodes are  attached to his head and legs.      As soon  as this  operation  is  completed  (about  two      minutes after  he has  left the  cell,) the  signal  is      given and the switch is pulled by the, electrician; the      current is  left on for two minutes, during which there      is alternation  of two or more different voltages. When      it is  switched off,  the body  slumps forward  in  the      chair. The  prisoner does  not make  any sound when the

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    current is turned on, and unconsciousness is apparently      instantaneous. He  is not, however, pronounced dead for      some minutes after the current is disconnected. The leg      is sometimes  slightly burned,  but  the  body  is  not      otherwise marked or mutilated." In paragraph 7 8, the Commission says:           "No case of mishap was recorded in Washington, but      it seems  that in  some other  States there  have  been      occasions when  the current  failed to  reach the chair      when the  switch was  engaged. Some  States install  an      emergency 52      generator in order that an execution may not be delayed      by failure of the commercial."      Lest it  be  thought  that  the  Report  of  the  Royal Commission, having been given 30 years back, the description of the  process of  electrocution contained  therein may not apply to the modern conditions, we may draw attention to the cover story on the death penalty which appended in the issue of ‘Time’ magazine, dated Jan. 24, 1983. The write-up. which is  predominantly  in  favour  of  abolition  of  the  death sentence, contains  a vivid  description of  the methods  of electrocution, gas  chamber and  lethal injection  which are used in  some of the States in America. The cover story, "An Eye  for   an  eye",  gives  the  following  description  of electrocution at page 12 of the issue;           "The chair is bolted to the floor near the back of      a 12  ft. by  18 ft. room. You sit on a seat of cracked      rubber secured by rows of copper tacks. Your ankles are      strapped into  half-moon-shaped foot  cuffs lined  with      canvas. A  2-in-wide greasy leather belt with 28 buckle      holes and  worn grooves  where it  has been pulled very      tight many  times is  secured around  your  waist  just      above the  hips. A cool metal cone encircles your head.      You are now only moments away from death.           But you  still  have  a  few  seconds  left.  Time      becomes stretched  to the  outermost  limits.  To  your      right you see the mahogany floor divider that separates      four brown  church-type pews from the rest of the room.      They look  odd in this beige Zen-like chamber. There is      another door  at the  back through  which the witnesses      arrive and  sit in the pews. You stare up at two groups      of fluorescent  lights on the ceiling. They are on. The      paint on the ceiling is peeling.           You fit  in neat and snug. Behind the chair’s back      leg on  your right  is a cable wrapped in gray tape. It      will sluice the electrical current to three other wires      : two  going to each of your feet, and the third to the      cone on  top of  your head.  The room  is  very  quiet.      During your  brief walk  here, you looked over shoulder      and saw early morning light creeping over the Berkshire      Hills. Then into this silent tomb. 53           The air vent above your head in the ceiling begins      to hum.  This means  the executioner  has turned on the      fan to  suck up  the smell  of burning  flesh. There is      little time  left. On your right you can see the waist-      high, one-way  mirror in the wall. Behind the mirror is      the executioner,  standing before a gray marble control      panel with  gauges, switches  and a  foot-long lever of      wood and metal at hip level.           The executioner  will pull  this lever four times.      Each time  2,000 volts  will course  through your body,      making your  eyeballs first bulge, then burst, and than      broiling your brains ..."

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Electrocution was  first introduced  in the  New York  State prison at  Auburn on  August 6, 1890. The initial victim was one William  Kemmler whose  challenge to the validity of the method of  electrocution as  a cruel  and unusual punishment was rejected  by the  U.S. Supreme Court. Though this method is now  advocated as  a humanitarian  move, in  reality, its original introduction appears to have been the result of the effort of an electrical company to market its products.      Though  it   is  generally   believed  that   death  by electrocution is  entirely painless,  a distinguished French scientist, L.G.V.  Rota, disputes this contention. Labelling this method  of executing  the death  sentence as  a form of torture, Rota  contends that a condemned victim may be alive for several minutes after the current has passed through his body without  a physician  being certain  whether death  has actually occurred  or not.  He adds  that some  persons have greater physiological  resistance to  the  electric  current than others,  and that, no matter how weak the person, death cannot supervene  instantly. Another  attack on  the pain of death  in  electrocution  was  made  by  Nicola  Tesla,  the electrical wizard. The opposite view is 54 expressed by  Robert G.  Elliott in  ‘Agent of  Death’  (New York: Dutton,  1940). Robert  Elliott, one-time  executioner for several eastern States, who officiated at 387 executions maintains that electrocution is painless.      Power seldom fails in countries like America, U.S.S.R., and Japan.  Even then,  the  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  electrical power in our country, the electric chair will become an instrument of torture. One can well imagine the consequences of the use of the electric chair in the city of Calcutta or, for the matter of that, in the capital  City of  Delhi. For technical reasons, even the Supreme Court  complex is  not spared  from  frequent  load- shedding during working hours. Lawyers, litigants and Judges have now  trained themselves  to  suffer  the  inconvenience arising from  failure of  electricity. But, it would be most unfair to  expect a  prisoner condemned to death to get into the electric  chair twice or thrice, for the reason that the electric current failed during the process of electrocution. It is not our intention to blame anyone for the power crisis because it  would seem  that it  is partly  due  to  natural causes and  is not  man-made. But  facts are  facts must  be faced.      Execution by  lethal gas  is  discussed  by  the  Royal Commission in  paragraphs 719  to 722  of  its  Report.  The Commission says  in paragraph  719 that they did not inspect any lethal  gas chamber  during their  visit to America, but they were  supplied with written evidence about execution by lethal gas.  They also had the advantage of hearing evidence from one  Mr. Philip  Allen, the then Deputy Chairman of the Prison Commission and of receiving a report from the English Neurologist, Dr.  Macdonald  Critchley,  both  of  whom  had inspected  the   lethal  chamber   at  St.  Quentin  Prison, California, of  which the famous Clinton Duffy was a warden. In paragraph  720 of  the Report, the Royal Commission says: "The lethal chamber is very elaborate in comparison with the apparatus needed  for other  methods  of  execution.  It  is expensive to  install and  requires a  complicated series of operations  to   produce  the  gas  and  to  dispose  of  it afterwards". The description of the gas chamber method given by the Royal Commission is like this:           The chamber  is required to be hermetically sealed

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    to prevent leakage of cyanide gas, the doors leading to      the 55      chamber  are   required  to   be  connected   with   an      electrically controlled  panel,  the  prisoner’s  arms,      legs and  abdomen are  tied to  the chair  with leather      straps, a  pound of sodium cyanide pellets is placed in      a trap  in the  seat of  the chair  and three  pints of      sulphuric acid  and six  pints of water mixed in a lead      container are  placed in  a  position  to  receive  the      cyanide pellets. A rubber hose is connected to the head      of a  stethoscope which  is strapped  to the prisoner’s      chest. The  entire clothing  of the prisoner is removed      except for  shorts. Finally,  a leather mask covers the      prisoner’s face. After the prisoner is pronounced dead,      Amonia  gas  is  forced  into  the  chamber  until  the      indicators within the chamber show that all cyanide gas      has been neutralised. The Amonia gas is then removed by      a specially constructed exhaust fan. Paragraph 721  of the  Royal Commission’s  Report shows that the length  of time  taken by  this method  of execution  is about 45  minutes. In paragraph 722 the Commission says that when this method was first employed, it was thought that the gas  had  a  suffocating  effect  which  would  cause  acute distress, if  not actual  pain, before  the prisoner  became unconscious. According to the Commission, it seems to be now generally agreed that unconsciousness ensues very rapidly in the gas chamber method.      Clinton  Duffy,   warden   of   San   Quentin   Prison, California, says  that the  operation  of  the  gas  chamber execution  includes   "funnels,  rubber  gloves,  graduates, towels soap, pliers, scissors, fuses and a mop: in addition, sodium cyanide  eggs, sulphuric  acid, distilled  water, and amonia".      Coming to  the method of shooting by a firing squad, we have already extracted an opinion which shows that there are chances of  bungling in  that method.  But  a  more  serious objection to  which this  method is  open is  that it is the favourite past-time  of military  regimes which trample upon human rights  with impunity.  They shoot  their citizens for sport. Shooting is an uncivilised method of 56 extinguishing life  and it  is enough  to say  in  order  to reject in  that the particular method is most recklessly and want only  used for  liquidating opposition  and  smothering dissent in  countries which  do not respect the rule of law. Lastly, 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 of  law  will unwittingly confer  respectability on  the ’shoot  to  kill, tactics which are alarmingly growing in proportion.      What remains  now to  consider is  the system of lethal injection. The Royal Commission has discussed that method in paragraphs 735  to 749 of its Report. Lethal injection is by and large  an untried  method. But  that  is  not  its  most serious defect. The injection is required to be administered intravenously, which  is a  delicate and  skilled operation. The Prison  Medical Officers  who were  interviewed  by  the Royal  Commission  doubted  whether  the  system  of  lethal injection was more humane than hanging (See paragraph 739 of the  Report).  The  British  Medical  Association  told  the Commission that  no medical  practitioner should be asked to take part  in  bringing  about  the  death  of  a  convicted murderer and  that the  Association would  be most  strongly opposed to  any proposal  to introduce a method of execution

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which would  require the services of a medical practitioner, either in  carrying out  the actual process of killing or in instructing others  in the  technique of  that process.  The Commission expressed  its conclusion  in  paragraph  749  by saying that  it could  not recommend  that, in  the  present circumstances, lethal  injection should  be substituted  for hanging  since  they  were  not  satisfied  that  executions carried out by the administration of lethal injections would bring about  death more  quickly, painlessly and decently in all cases. The Commission, however, recommended, unanimously and emphatically,  that the  question should be periodically examined, especially  in the  light of  the progress made in the science of anaesthetics.      We may  lastly refer  to the affidavit filed by one Dr. N.P. Singh  who was  allowed to  intervene on  behalf of the National Association  of Critical Care Medicine (India), New Delhi. He  says in  his affidavit  that society  has come to realise that death by hanging is not a merciful and pleasant way of  putting a  patient to a terminal end: "As members of the medical  profession and  the Association, we feel that a patient may  be put to sleep by any sleep inducing injection (barbiturates)  and   subsequently,  the   above   mentioned electrocution 57 and gas  chamber methods  may be  applied as  the  patient’s sense would  have been  dulled by  the drug injection". This system certainly  has the  merit of naivete and novelty but, on the  face of  it, the  system is  impracticable and would appear to  involve complications  and torture to an uncommon degree. We  may in  this behalf draw attention to an article "The Death  Penalty: Moral argument and capricious practice" by Andrew  Rutherford, a  senior  Lecturer  in  Law  at  the Southampton University,  which appeared in ’The Listener’ of July  7,   1983,  published   by  the  British  Broadcasting Corporation. In  that  article,  the  writer  refers  to  an incident to the effect that in 1982 December, a prisoner was put to  death in  Texas by  means of  an injection of sodium pentothol. The incident led the American Medical Association to declare:  "The use  of a  lethal injection  as a means of terminating the  life of  a convict  is not  the practice of medicine". The  writer proceeds  to say  that there  is  not likely  to  be  any  great  enthusiasm  for  the  method  of electrocution as  well, since  in April  1983, it took three 30-seconds shots  of 1,900 volts before a man in Alabama was pronounced dead.      It  is   clear  from   this  narrative   that   neither electrocution, nor  lethal gas,  nor shooting,  nor even the lethal injection  has any distinct or demonstrable advantage over the  system of  hanging. Therefore, it is impossible to record the  conclusion with any degree of certainty that the method of  hanging  should  be  replaced  by  any  of  these methods.      But, for due compliance with the mandate of Article 21, it is  not enough  to find that none of the other methods of execution has  a real  advantage over the method of hanging. The other  methods may  have some  of  the  vices  of  being impracticable, complicated, slow and uncertain. That is only one side  of the  picture because, the circumstance that the other methods are not feasible does not establish of its own force that  the method  of hanging  is free  from blame. The weakness of  defence cannot  establish the plaintiff’s case. In other  words, though hanging may not suffer in comparison with the  other methods,  what we must determine is whether, hanging  as  a  method  of  executing  the  death  sentence, considered in  isolation, that is to say, without comparison

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with the  other methods,  offends  against  the  cannons  of Article 21.      There is  a responsible  body of  scientific and  legal opinion which  we have  discussed, which holds the view that hanging by rope 58 is not  a cruel  mode of  executing the death sentence. That system is  in operation  in large  parts  of  the  civilised world. That  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 Article 72 (1) (c) of the Constitution.      Having given  our most  anxious  consideration  to  the central point  of inquiry,  we have  come to  the conclusion that, on the basis of the material to which we have referred extensively, the State has discharged the heavy burden which lies upon  it to prove that the method of hanging prescribed by section 354(5) of the Code of Criminal Procedure does not violate  the  guarantee  contained  in  Article  21  of  the Constitution. The  material before  us shows that the system of hanging  which is  now in  vogue consists  of a mechanism which is  easy to  assemble. The preliminaries to the act of hanging are quick and simple and they are free from anything that  would  unnecessarily  sharpen  the  poignancy  of  the prisoner’s apprehension.  The chances  of an accident during the course  of hanging can safely be excluded. The method is a quick  and certain  means of executing the extreme penalty of law.  It eliminates the possibility of a lingering death. Unconsciousness supervenes  almost instantaneously after the process is  set in  motion and  the death  of  the  prisoner follows as  a result  of the  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 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 of 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. ’Imaginable’,  because in the very  nature of  things, there  are no survivors who can give  first-hand  evidence  of  the  pain  involved  in  the execution of  a death  sentence. Dead men tell no tales. The question as  regards the  factor of pain has therefore to be judged on  the basis  of scientific  investigations  and  by applying the  test of reason. The conclusion that the system of hanging is as painless 59 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.      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. If  a prisoner  is sentenced  to death, it  is lawful  to execute  that punishment  and  that only. He  cannot be  subjected to  humiliation,  torture  or

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degradation before  the execution of that sentence, not even as necessary  steps in  the execution of that sentence. That would amount  to inflicting  a punishment  on  the  prisoner which does  not have the authority of law. Humaneness is the hall-mark of  civilised laws. Therefore, torture, brutality, barbarity,  humiliation  and  degradation  of  any  kind  is impermissible in  the execution of any sentence. The process of hanging  does not  any of  these, directly, indirectly or incidentally.      Accordingly, we  hold that  the  method  prescribed  by section  354(5)  of  the  Code  of  Criminal  Procedure  for executing the  death sentence does not violate the provision contained in Article 21 of the Constitution.      There is one point which still remains to be considered and that  is the  point made  by Shri R.K. Garg. He contends that it  is inhuman  to kill  under any  circumstances, even under a  judgment  of  a  Court  and,  therefore,  no  death sentence can  be executed  at all by means fair or foul. The fact that  the method  prescribed by  law for  executing the death sentence  is humane makes no difference for, according to him, Article 21 imposes a total prohibition on the taking of human  life, which  would include  the execution of death sentence. It  is impossible  to accept  this contention. The argument, in  truth and  substance, is aimed at the validity of the  death sentence itself and, indeed, much of what Shri Garg said  is directed  at showing the invalidity of section 302 of  the Penal Code rather than the invalidity of section 354(5) of  the Code  of Criminal Procedure. We are unable to appreciate how  it is  unlawful, in  the abstract and in the absolute, to  execute a  lawful order.  If it  is lawful  to impose the  sentence of death in appropriate cases, it would be lawful to 60 execute that  sentence in an appropriate manner. Article 21, undoubtedly, has  as much  relevance on  the  passing  of  a sentence, as  on the  manner of  executing it.  Therefore, a two-fold consideration has to be kept in mind in the area of sentencing. Substantively,  the sentence  has  to  meet  the constitutional  prescription   contained,   especially,   in Articles 14  and 21.  Procedurally, the  method by which the sentence is  required by  law to be executed has to meet the mandate of Article 21. The mandate of Article 21 is not that the death  sentence shall  not be executed but that it shall not be executed in a cruel, barbarous or degrading manner.      If we  were to  accept the  argument of  Shri Garg, the imposition of  death sentence  would become  an exercise  in futility: pass  the sentence  of death  if you  may but,  it shall  not   be  executed   in   any   manner,   under   any circumstances. A Constitution so carefully conceived as ours cannot be  construed to  produce such  a  startling  result. Indeed, the  argument, if  carried to its logical conclusion will make  it impossible to execute any sentence whatsoever, particularly of  imprisonment,  because  every  sentence  of imprisonment necessarily  involves pain  and suffering  to a lesser  or   greater  degree.   Painless  punishment   is  a contradiction in terms.      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.  Granting   that  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

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any kind.  If the  larger  interests  of  the  community  as opposed to  the interests  of an individual require that the 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 Article 21.      Though Article  21 was  the focal  point of  this case, almost everyone  of the  learned counsel appearing on behalf of  the   petitioners  drew   inspiration  from  the  Eighth Amendment to  the United  States Constitution which provides that "Excessive  bail shall  not be  required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." 61      The prohibition  against cruel  and unusual  punishment dates back to the Magna Carta though it found recognition in the English  Law by  its adoption in the English Declaration of Rights  in 1688.  The purpose  of this  enactment was  to check the barbarous punishments which were common during the regime  of   the  Stuarts,   like  pillory,   disemboweling, decapitation and  drawing and quartering. As a result of the English reform movement which was started in the seventeenth century  by   the  European   humanists,  these  punishments gradually fell  into disrepute.  The  fundamental  principal underlying  the   prohibition  against   cruel  and  unusual punishments was  incorporated into  the Bill  of  Rights  in 1791.      The early  development of law in America shows that the prohibition against  cruel and unusual punishments concerned itself with  unusual cruelty  only, the  emphasis being upon "unnecessary  cruelty   and  pain".  In  Kemmler,  death  by electrocution was  held not  necessarily cruel. In O’Neil v. Vermont Justice  Field, in  his dissenting opinion, enlarged the concept  of unusual punishment to cover penalties "which shock the  sense of  justice". In  Trop v.  Dulles a sharply divided  Court   held  that  divesture  of  citizenship  was constitutionally forbidden.  Chief Justice  Warren, speaking for three  Justices, observed that the content of the Eighth Amendment was  not static and that it "must draw its meaning from  the  evolving  standards  of  decency  that  mark  the progress of  a maturing  society". According  to the learned Chief Justice,  the Eighth Amendment whose "basic concept is nothing  less   than  the  dignity  of  man",  ensures  "the principle of  civilized treatment".  After the  decision  in Troop,  the   American  Supreme   Court  has   formulated  a sophisticated definition of the Eighth Amendment clause in a series of  important cases  called the  "18  Key  cases".  A resume of  those cases can be found in ’Substantive Criminal Law’ by  Prof. M. Cherif Bassiouni (Ed. 1978, pp. 44-45). It shows that  even a second electrocution after the failure of the first  attempt, provided it is not an intentional effort to inflict  unnecessary suffering, was held not violative of the Eighth Amendment (Louisiana v. Resweber. It was observed in that case that:           "the  cruelty   against  which   the  Constitution      protects a  convicted man  is cruelty  inherent in  the      method of 62      punishment, not the necessary suffering involved in any      method employed to extinguish life humanely. No one can      deny that some suffering and anguish is bound to result      to the  condemned man  at the  time of execution of his      death sentence.  But it  is not wholly inappropriate to      observe that  having had  the opportunity to avoid that      suffering and  anguish, he chose the path of risking it      in favour  of earning  some other  benefit. His minimal

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    suffering is  real, but so we believe was the suffering      of his victims and even so will be the suffering of the      victims of  those other criminals who believe that they      can commit  crimes  of  great  atrocity  with  relative      impugnity". It is  this ’relative  impunity’ which  attracts the rule in Bachan Singh.      Though the  Eighth Amendment has thus a dynamic content which has  been evolved  over  the  years  as  public  moral perceptions changed  from time  to time,  several concurring opinion show  that in  America, capital  punishment  is  not considered to  be violative  of the Eighth Amendment. In the words of  Chief Justice  Earl Warren, "the death penalty has been employed throughout our history, and, in a day which it is still  widely accepted,  it cannot be said to violate the constitutional  concept   of  cruelty".   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.      No sustenance  can therefore be derived from the Eighth Amendment to  the argument that either the death sentence or the  method   of  executing  that  sentence  by  hanging  is violative of Article 21 on the ground that death sentence is barbarous or that the method of hanging is cruel, inhuman or degrading. Hanging  as a mode of execution is not relentless in its  severity. As  Judges we  ought not to assume that we are endowed  with a  divine insight  into  the  needs  of  a society. On  the contrary,  we should heed the warning given by Justice Frankfurter: "As history amply proves, the judi- 63 ciary is prone to misconceive the public good by confounding private notions with constitutional requirements".      For   these    reasons    the    challenge    to    the constitutionality of  section 354(5) of the Code of Criminal Procedure fails and the writ petitions are dismissed. Orders whereby the  executions of  death sentence  were stayed  are hereby vacated  except in  W.P. (Crl.) No. 503 of 1983 which will be  listed on  27th September, 1983, for being heard on merits. SLP (Crl.) No. 196 of 1983 is dismissed.      SABYASABHI MUKHARJI,  J. I  respectfully agree with the conclusions of  my learned  brother, the  Chief  Justice.  I would like,  however, to  state that  in  the  judgment,  my learned brother has observed:-           "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." I respectfully  agree that  as soon  as it  is shown  that a Statute or  Act in  question 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. I, however,  respectfully at  present would  not express  my opinion whether  in all  such cases, the State has a further initial burden  to prove  that the  procedure established by law is  just, fair  and reasonable. With this observation, I respectfully  agree  with  all  the  other  conclusions  and observations made by my brother, the learned Chief Justice. H.L.C.                                  Petitions dismissed. 64

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