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PETITIONER: RAJENDRA PRASAD ETC. ETC.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT09/02/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. DESAI, D.A. SEN, A.P. (J)

CITATION:  1979 AIR  916            1979 SCR  (3)  78  1979 SCC  (3) 646  CITATOR INFO :  R          1979 SC 964  (1,23,27,28,29)  E          1979 SC1384  (2,10,11,13,14,15,20,22,23,24,  O          1980 SC 898  (4,5,6,7,8,142,198,202)  MR         1982 SC1325  (19,20,26,38,40,61,67,72,78)  RF         1983 SC 361  ((2)10)

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

HEADNOTE:      (Per majority-Krishna Iyer and Desai, JJ.) ^      1. The only question before the Court is as to when and why shall capital punishment be pronounced on a murderer and why not  in other  cases, within  the confines  of the Code. Urgency to  the solution  is obvious.  The overt ambivalence and covert conflict among judges concerning continued resort to  the   death  sentence   mirrors  the  uncertainties  and conflicts of values in the community itself. [89G & 90D] 2. Section  302 of  the IPC  throws little light on when the court shall  be the sentence of why the lesser penalty shall be preferred.  Since law  reflects life,  new meanings  must permeate the  Penal Code.  Deprivation  of  life  under  our system is  too fundamental  to be  permitted except  on  the gravest ground  and under the strictest scrutiny. [90F: 94C- D]      3. To  say that  discretion of  the Judge  passing  the sentence under  s. 302  IPC  is  guided  by  well-recognised principles shifts  the issue  to what those recognised rules are. The  big margin  of, subjectivism. a preference for old precedents, theories of modern penology, behavioral emphasis or social  antecedents,  judicial  hubris  or  human  rights perspectives, reverence for outworn social philosophers-this plurality of  forces plays a part in swining the pendulum of sentencing justice  erratically.  Until  Parliament  speaks, this Court cannot be silent. [95; 97G]      4. Executive  commutation is no substitute for judicial justice, at  best it  is administrative  policy and at worst pressure-based partiality.  The criteria  for  clemency  are often different [99C]

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    5. In  so far  as  s.  302  IPC  is  concerned  several attempts had  been made  to restrict or remove death penalty but never to enlarge its application. Parliamentary pressure has been  to cut  down death  penalty, although  the section formally remains  the same.  In the  case  of  the  Criminal Procedure Code  the legislative  development has shifted the punitive  centre   of  gravity  from  life  taking  to  life sentence. In  other words, the legislative trend seems to be while formerly  the rule  was to  sentence to death a person who is  convicted for  murder, it  is now to impose a lesser sentence for  reasons to  be recorded  in writing. Formerly, capital punishment  was to be imposed unless special reasons could be  found to  justify the  lesser sentence. After 1955 courts were  left equally free to award either sentence. The 1973 Code  has made  an an  mistakable shift  in legislative emphasise under  which life  imprisonment for  murder is the rule and  capital sentence  the exception  for reasons to be stated. [101D:104B-C] 79      6. Criminologists  all the  world over, however, argued that death  has decisively  lost the battle, and even in our Codes it  has shrunk  into a  weak exception.  What are  the exceptional cases ? Personal story of an actor in a shocking murder, if  considered,  may  bring  tears  and  soften  the sentence. He  might have  been a  tortured  child,  an  ill- treated orphan, a jobless man or the convict’s poverty might be responsible for the crime. [106G: 107B]      7. In  the post  Constitution period  s. 302 IPC and s. 345(3) of  the Cr.  P.C. have to be read in the humane light of Parts  III and  IV  illumined  by  the  Preamble  to  the Constitution.  In  other  words  the  sacrifice  of  a  life sentence is sanctioned only if otherwise public interest and social  defence   and  public   order   would   be   smashed irretrievably.    Such     extraordinary    grounds    alone constitutionally qualify  as special  reasons. One stroke of murder  hardly   qualifies  for  this  drastic  requirement, however gruesome  the killing may be. The searching question the Judge  must put to himself is what is so-extra-ordinari- ly reasonable  as to  validate the wiping out of life itself and with  it the  great rights  which inhere  in him  in the totality of facts. [121F; 110E-F]      8. The  retributive theory  has had  its day  and is no longer valid.  Deterrence and  reformation are  the  primary social goals  which make  deprivation of  life  and  liberty reasonable as penal penacea. [122C]      9. The current ethos, with its strong emphasis on human rights and  against death penalty, together with the ancient strains of culture spanning the period from Buddha to Gandhi must ethically inform the concept of social justice which is a  paramount   principle  and   cultural  paradigm   of  our Constitution [l22C-D]      10. The  personal  and  social,  the  motivational  and physical circumstances, of the criminal are relevant factors in adjudging  the penalty  as clearly provided for under the Code of  1973. So also the intense suffering already endured by prison  torture or  agonishing death penalty hanging over head consequent on the legal process. [112D-El      11. Although the somewhat obsolescent Mc’Naughten Rules codified in  s. 84  of the Penal Code alone are exculpatory, mental imbalances, neurotic upsets and psychic crises may be extenuatory and  the sense  of diminished responsibility may manifest itself in judicial clemency of commuted life incar- ceration. [l22F]      12. The  social justice  which the Preamble and Part IV (Art. 38)  highlight, as  paramount in the governance of the

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country has  a role  to mould the sentence. If the murderous operation of a die-hard criminal jeopardizes social security in a  persistent, planned  and  perilous  fashion  then  his enjoyment of  fundamental rights may be rightly annihilated. One test  for imposition  of death  sentence is  to find out whether the  murderer offers  such a traumatic threat to the survival of  social order.  Some of the principles are-never hang unless  society or  its members  may lose more lives by keeping alive  an  irredeemable  convict.  Therefore  social justice  projected   by  Art.  38  colours  the  concept  of reasonableness in  Art. 19 and non-arbitrariness in Art. 14. This complex  of articles validates death penalty in limited cases. Maybe train dacoity and bank robbery bandits reaching menacing proportions,  economic offenders  profit killing in an intentional  and organised  way, are such categories in a Third World setting. [112D: 114C: 112G] 80      13. Survival  of an  orderly society  without which the extinction of  human rights  is a  probability  compels  the higher protection  of the  law to  those  officers  who  are charged with  the fearless  and risky discharge of hazardous duties in  strategic situations. Those officers of law, like policemen on  duty or  soldiers and the like have to perform their functions  even in  the face  of threat  of  violence, sometimes in  conditions of  great  handicap.  If  they  are killed by  designers of  murder and the law does not express its strong  condemnation in extreme penalisation, justice to those called  upon to defend justice may fail. This facet of social justice  also may  in certain  circumstances  and  at certain stages  of  societal  life  demand  death  sentence. [123D-E]      14.  Special   reasons  necessary  for  imposing  death penalty must  relate not  to the  crime as  such but  to the criminal. [124E]      Jagmohan Singh v. State of U.P., [1973] 1 SCC 20; Ediga Annama v.  State of  A.P., [1974] 4 SCC, 443; Sunil Batra v. Delhi Admn., [1978] 4 SCC 494 at 569 & 572; referred to.      Capital punishment  in India;  The Impact  of the Ediga Anamma, by Prof. A. R. Blackshield-(July 1977), referred to.      Rajendra Prasad’s case:      The family  to which  the appellant  and  the  deceased belonged were  on inimical  terms. The appellant who was the son of  one of  the families  murder ed  the deceased. After some years  in the prison, he was released on Gandhi Jayanti day. On  return some  minor incident ignited his latent feud and he  stabbed to death a friend of the opposite family, he was sentenced to death.      The second  murder is  not to  be confounded  with  the persistent potential  for murderous attacks by the murderer. This was  not-a menace  to the  social order  but a specific family feud.  Here was  not a  youth of controllable violent propensities against  the community  but one  whose paranoid preoccupation with  a family  quarrel goaded  him to  go the rival. So  long as the therapeutic processes are absent from prisons these  institutions, for from being the healing hope of society,  prove  hardening  schools  to  train  desperate criminals. Desperate criminal is a convenient description to brand a  person. Seldom  is the  other  side  of  the  story exposed to  judicial view.  There is  nothing on  record  to suggest that the appellant was beyond redemption; nothing on record hints  at any  such attempt  inside the  prison.  The appellant  showed   no  incurable   disposition  to  violent outbursts against  his fellow-men.  There is  therefore,  no special reason  to hang  him.  He  should  be  awarded  life imprisonment.

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Kunjukunju’s case:      The  appellant,   a  married  man  with  two  children, developed illicit  sex relations with a fresh girl. In order to win her hand he murdered his wife and two children. There is no  evidence to  show that he was a desperate hedonist or randy rapist.  He is  not a  social security risk altogether beyond salvage  by therapeutic life sentence. Death sentence is commuted to life imprisonment. Dubey’s case: The appellant,  a young man, aged about 20, stabbed to death three members  of the  family with  whom his  family  had  a quarrel over partition of 81 property. It  is illegal  in  this  case  to  award  capital sentence  without   considering  correctional  possibilities inside prison.  He was  not a  murderer born but made by the passion of  family quarrel.  He could  be saved  for society with correctional techniques and directed into repentance. A family feud,  an altercation,  a  sudden  passion,  although attended with  extraordinary cruelty,  young  and  malleable age, reasonable  prospect of  reformation and absence of any conclusive circumstance  that the  assailant is  a  habitual murderer or  given to  chronic  violence-these  catenate  of circumstances bearing  on the  offender call  fol the lesser sentence. Sen l. (Dissenting)      1. (a) It is constitutionally and legally impermissible for the  Supreme Court  while hearing  an appeal  by special leave under  Art. 136  of the Constitution, on a question of sentence, to  restructure s. 302 of the Indian Penal   Code, 1860 or s. 354, sub-s. (3) of the Code of Criminal Procedure 1973, so  as to  limit the  scope of  the sentence  of death provided for the offence of murder under s. 302. [131F-G]      (b)  The  question  whether  the  scope  of  the  death sentence  should  be  curtailed  or  not,  is  one  for  the Parliament to decide. The matter is essentially of political expediency and, as such, it is the concern of statesmen and, therefore, properly  the domain  of the legislature, not the judiciary. [137E]      (c) In an appeal confined to sentence under Article 136 of the  Constitution, Supreme  Court has  not only the power but as  well as  the duty  to interfere if it considers that the appellant should be sentenced ’differently’, that is, to set aside  the sentence of death and substitute in its place the sentence  of imprisonment  for life, where it considers, taking the  case as  a whole,  the sentence  of death  to be erroneous, excessive  or indicative  of an improper exercise of discretion;  but at  the same time, the Court must impose some limitations  on itself  in the  exercise of  this broad power. In  dealing with  a sentence  which has been made the subject of  an appeal,  the  Court  will  interfere  with  a sentence only  where it  is ’erroneous  in  principle’.  The question, therefore,  in each  case is  whether there  is an ’error of principle’ volved.[134G-Hl      (d)  The  Court  has  the  duty  to  see  that  on  the particular  facts   and  circumstances   of  each  case  the punishment fits  the crime. Mere compassionate sentiments of a humane  feelings cannot  be a  sufficient reason  for  not confirming a  sentence of  death  but  altering  it  into  a sentence of imprisonment for life. In awarding sentence, the Court must,  as it should, concern itself with justice, that is, with unswerving obedience to established law. It is, and must be,  also concerned  with the  probable effect  of  its sentence both  on the general public and the culprit. Judges are  not   concerned  with   the  morales  or  ethics  of  a

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punishment. It is but their duty to administer the law as it is and not to say what it should be. It is not the intention of the  Supreme Court  to curtail  the scope  of  the  death sentence‘ under s. 302 by a process of judicial construction inspired by the personal views [35B: 137D-E]      2. It  is also-not  legally permissible  for this Court while hearing an appeal in a particular case where a capital sentence is  imposed,  to  define  the  expression  "Special reasons" occurring  in sub-s.  (3) of s. 354 of the Code, in such 82 JUDGMENT: virtually has  the effect  of abolishing the death sentence. [137H]      (a) Under  s. 354,  sub-s. (3)  of the Code of Criminal Procedure, 1973,  the Court is required to state the reasons for a  sentence awarded,  and in the case of imposition of a sentence of  death the Judge has to record "special reasons" for imposing death sentence. Punishment for murder as a rule should be  life imprisonment  and death  sentence is only an exception. [l59A]      (b) It  is neither feasible nor legally permissible for this Court  to give a definite connotation to the expression "special reasons" occurring in s. 354 sub-s. (3) of the Code of Criminal Procedure, 1973. It is difficult to put "special reasons" in  a straight-jacket. Each case must depend on its own particular  facts. The question of sentence must be left to the  discretion of the Sessions Judge trying the accused. Under the  present Code,  a trial for murder is divided into two stages.  There is  a bifurcated trial. The first part of the trial  is directed  solely to  the  issue  of  guilt  or innocence, and  concludes with  the finding  of the Sessions Judge on  that issue.  At the end of the trial when he comes to a  conclusion of  guilt, he  has to  adjourn the case for hearing the accused on the question of sentence. [159C-D]      Section  235,  sub-s.  (2)  of  the  Code  specifically provides for an opportunity of hearing to the accused on the question of  sentence after  a verdict  of guilt is recorded against him.  The burden is upon the prosecution to make out a case  for imposition  of  the  extreme  penalty.  Where  a sentence of  death is passed, the Sessions Judge has to make a reference  to the  High Court  under s. 366, sub-s. (1) of the Code.  Under s. 367, sub-s. (1) if the High court thinks a  further  inquiry  should  be  made  into,  or  additional evedence taken  upon, any  point bearing  upon the  guilt or innocence of  the convicted person, it may make such inquiry or take  such evidence  itself, or  direct it  to be made or taken by the Court of Sessions. In a case submitted under s. 366, the  High Court  under s. 368(a) may either confirm the sentence, or  pass  any  other  sentence,  i.e.  reduce  the sentence of  death into a sentence of imprisonment for life. thereafter an  appeal lies  to this Court by a special leave under Article 136 on the question of sentence. [159E-H]      Failing the  appeal, there  is the President’s power to grant reprieve  and pardon  under Article 72 (1), as well as the Governor’s power of commutation under Article 161 of the Constitution which is a sovereign function. The power of the President and of the Governor to grant reprieves and pardons is wide  enough to include the power to commute and to remit sentence of  punishment. All cases of capital punishment are closely scrutinised  by the  Executive at both the levels to see whether  there are  such  extenuating  circumstances  as would justify  a reprieve,  and the power to commute a death sentence is  freely exercised,  whenever there is some doubt as to  the severity  of the  punishment. Under  the  present

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system the  Prerogative of  Mercy in  the case  , of persons under sentence  of death  works well and it produces results gene rally  regarded as satisfactory. It helps in mitigating the rigour  of the  death sentence,  particularly in case of those murderers  whose execution  would  offend  the  public conscience. Very  few persons  under a sentence of death-may be one or two in a year, in a State are usually executed. It is, therefore,  not proper  for the Court to trench upon the President’s or  the Governor’s perogative to grant pardon or reprieve under Articles 72(1) and 161 in taking 83 upon itself  the task  of commutation  of a  death sentence, which is properly imposed, in the facts and circumstances of a particular  case, merely because there is a doubt that the Executive may  commute the  sentence ultimately, or by one’s views as to the utility of death penalty. [160A-E]      Balwant Sing  case [1976]  2 SCR  684;  Ambaram’s  Case 11974] 4  SCC 298 and Sarveshwar Prasad Sharma’s case 11978] 1 SCR 360; referred to.      (c) Judges are entitled to hold their own views, but it is the  bounden  duty  of  the  Court  to  impose  a  proper punishment, depending upon the degree of criminality and the desirability to  impose such  punishment  as  a  measure  of social necessity,  as a  means of  deterring other potential offenders. It  is only  in very  grave cases  where it  is a crime against  the society  and the  brutality of  the crime shocks the judicial conscience that the Court has the power, as well  as the  duty, to impose the death sentence. In view of these adequate safeguards, it can hardly be asserted that the sentence  of death  provided for  an offence  of  murder punishable under  s. 302,  is ’dehumanizing’  or that  it is ’unnecessary’. Where  the crime is cruel and inhuman a death sentence may be called for. [160F-H]      Ediga Anamma,  [1974] 4  S.C.C. 443;  Bishan Das & Ors. [1975] 3 S.C.C. 700; referred to.      (d) If  Parliament thought  it right  to  give  to  the Judges discretion  as to  the sentence,  they would  not  or ought not  to shrink  from their  onerous responsibility. It would not  be appropriate  to curtail  the  ambit  of  their discretion by  judicial process. A sentence of a wrong type, that is,  to substitute  a sentence of imprisonment for life where  the  death  sentence  is  called  for,  causes  grave miscarriage of  justice. A  sentence or pattern of sentences which fails  to take  due account  of gravity of the offence can seriously undermine respect for law. [164E-F]      (e) In  the three  cases there  were ’special  reasons’ within the  meaning of  s. 354,  sub-s. (3)  of the  Code of Criminal Procedure,  1973  for  the  passing  of  the  death sentence in  each  and,  therefore,  the  High  Courts  were justified in  confirming the  death sentence passed under s. 368(a) of  the Code.  Indeed, they  are illustrative  of the rate type  of cases,  that is, first degree murders, where a death sentence  is usually awarded in any civilised country. These were  cases of diobolical, cold-blooded brutal murders of innocent  persons,  that  is,  first  degree  murders  of extreme brutality  or depravity.  The inhumanity  of some of the  offences   defied  belief  Any  interference  with  the sentence of death, would be wholly unwarranted in each case. [l64G]      (f) It  is the  duty of  the Court  to impose  a proper punishment depending  upon the  degree  of  criminality  and desirability to  impose such  punishment  as  a  measure  of social necessity  as a  means of  deterring other  potential offenders. Failure  to impose a death sentence in such grave cases where  it is  a crime against the society-particularly

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in cases  of murders  committed with extreme brutality, will bring to nought the sentence of death provided for by s. 302 of the  Indian Penal  Code, 1860. To allow the appellants to escape with  the lesser  punishment after they had committed such intentional, cold-blooded deliberate and brutal murders will deprive  the law  of its  effectiveness and  result  in travesty of justice. [l68A-B] 84      (g) In  these appeals  it cannot  be asserted  that the award of  death sentence to the appellants was "erroneous in principle". Nor  can it  be said  that the sentence of death passed on  them was  arbitrary or excessive or indicative of an improper exercise of discretion. [167H]      (i) Rajendra Prasad’s case is destructive of the theory of reformation.  The ’therapeutic touch’ which it is said is the best  way of  preventing repetition  of the  offence has been of  no avail.  Punishment must  be designed  so  as  to deter,  as  far  as  possible  from  commission  of  similar offences. It should also serve as a warning to other members of society.  In both respects, the experiment of reformation has  miserably   failed.  There   is  no   doubt,  with  the commutation of his death sentence, the accused will commit a few more  murders and  he would again become a menace to the community. [165G]      (ii) In  Kunjukunju Janardhan’s  case the  accused, who acted as  a monster,  did not  even spare  his two  innocent minor children  in order  to get  rid of his wife and issues through her. The death sentence was the only and appropriate penalty which should be awarded in such a case. [166D]      (h) There is no inexorable rule that either the extreme youth of  the accused or the fact that he acted in a heat of passion must  always irrespective  of the  enormity  of  the offence or  otherwise be  treated as a sufficient ground for awarding the  lesser punishment.  The Court has to take into consideration all  the circumstances  which do not merit the extreme penalty.  In the  facts and  circumstances  of  this particular case  i.e. Sheo  Shanker  .  Dubey’s  case  these factors cannot outweigh other considerations. Three precious lives have  been lost by the dastardly act of the accused. A family has  ‘ been wiped off. The death sentence was clearly called for in this case-E firstly, as a threat or warning to deter potential  murderers, and  secondly as  the  guarantee against the  brutalisation of  human nature.  All facts  and circumstances, constitute  ’special reasons’ why the accused should be sentenced to death. [167E-Fl      3. It  cannot be said that imposition of death penalty, except in  the classes  of cases  indicated in  the majority Judgment would  be violative of Articles 14,19 and 21 of the Constitution.  Such   a  question   really  does  not  arise forconsideration. [136G]      (a) The  citizen’s right  to life  and personal liberty are  guaranteed   by  Article   21   of   the   Constitution irrespective of  his  political  beliefs,  class,  creed  or religion. The  Constitution has, by Article 21 itself forged certain procedural  safeguards for protection to the citizen of  his   life  and   personal   liberty.   The   idealistic considerations as  to the  inherent worth and dignity of man is a fundamental and prevasive theme of the Constitution, to guard against  the execution  of a citizen for his political beliefs. [136C-D]      (b) A  patriot  cannot  be  equated  with  an  ordinary criminal. A  humanistic approach  should not  obscure  one’s sense of  realities. When  a man commits a crime against the society  by  committing  a  diabolical,  cold-blooded,  pre- planned murder, of an innocent person the brutality of which

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shocks the  conscience  of  the  Court,  he  must  face  the consequences of his act. Such a person forfeits his right to life. [136E3] 85      Jagmohan Singh  v. State  of U.P.  [1973] 2  S.C.R. 541 followed.      Furman v.  Georgia, 408  U.S. 238,  33 L.  ed, 2nd  346 explained and differed from.      Michael de  Freites v.  Gaorgie  Ramouter  Benny,  L.R. [1975] AC 39; quoted with approval.      (c)  If   the  Courts   were  to   be  guided   by  the classification for inflicting death penalty only in the case of three  categories of  criminals, namely,  (i)  for  white collar offences (ii) for anti-social offences, and (iii) for exterminating a  person who is a menace to the society, that is, a ’hardened murderer’, the death sentence for an offence of murder  punishable under  section 302,  for all practical purposes would  be virtually non-existent. Unfortunately our penal laws  do not  provide for  death sentence  for  either white collar  crimes or  anti-social  offences.  As  regards ’hardened’ murderers,  there  are  few  to  be  found.  Many murders  unfortunately  go  undetected  and  many  a  brutal murderer has  to be  acquitted for  want of  legal  evidence bringing his  guilt beyond  reasonable doubt.  Nevertheless, when the  guilt is  proved, the Court should leave aside all humanitarian considerations if the extreme penalty is called for. A ’professional’ murderer must, as matter of course, be sentenced to  death because  he is  menace to  the  society. Whatever sympathy  the Court can have should be reserved for the victims  of the  crime rather than for the perpatrators. In such  cases, the law must take its course. [162B-E; 163C- D]      4. The  criminality of a crime consists not only in the criminal act  but in  what that  signifies. Its  immediately apparent features,  the obvious damage to person or property or to public security, are symptoms of a deeper disorder. It betokens, and  it fosters,  an attitude  in man  to man,  of reckless selfishness, decit or malice, which is incompatible in the long run with any decent social life. In any advanced society it  is, in  part at  least, on account of this wider character, less  easily discerned,  that the  graver offence are Punished. [l43E-F]      (a)   All    punishment    properly    implies    moral accountability. It  is related  to injury  and not  only  to damage or danger however greater. Capital punishment does so in an  eminent degree. It is directed against one who is ex- hypothesi an  inhuman brute,  i.e. it  is imposed  simply to eliminate who  is held  to  have  become  irretrievably,  a. Iiability or a menace to society. [142E]      (b) Punishment  like crime  has a  dual character.  The penalty which  the convicted  murderer incurs  is not simply death, but  death in disgrace and death as a disgrace. In so far as  capital punishment  is a threat, the threat consists not only  in death  but in  infamy. Any theory which ignores this characteristic is certainly defective. [l43F]      Sir Walter  Moberly The  Ethics of  Punishment  Ch.  Xl Capital Punishment pp. 271-81: referred to.      (c) Punishment  inflicted by the State in response to a violation of criminal law has been justified in various ways namely,  as   society’s  vengeance   upon  the  criminal  as atonement by  the wrong-doer,  as a means of deterring other criminals, as protection for the law-abiding and as a way of rehabilitating the criminal. 86 Theories of  rehabilitation are  largely speculative,  since

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there is lack of scientific evidence to support them, though it  has  been  influential  in  the  development  of  modern penology.[144A-B]      5. (a)  The capital punishment controversy falls within the strict limits of ’independent’ parliamentary law-making, and is  a typical  or representative of the kind of problems that leaders  of Parliament  face every  day. In  short, the case for  abolition of  the death sentence is political, not constitutional, The Government carries the responsibility of law and  order. That  is the  first‘ and fundamental duty of any Government.  The Executive  has the duty of advising the Government  of  the  laws  it  believes  necessary  for  the national wellbeing.  It is  the duty of the Court, including this Court, to administer the laws as they are. [l57D-E]      (b) Analysing  the substantive  merits of the cases for and against  the death  penalty for  murder is essentially a question for  the Parliament  to resolve  and  not  for  the Supreme Court  to decide.  Therefore, it would not be proper for the Judges to attempt to project their personal views in a matter  which lies  in the  realm of  political  decision- making, by  focussing on  a single controversy, the question of the proper penalty for the crime of murder. [157B]      (c) Any  justification for the capital sentence, as for other salient features of the penal system must be sought in the protection of the society and that alone. [145E]      Even where  it has  been legally retained, as in India, Capital Punishment  is now  seldom employed  except in  very grave cases  where it is a crime against the society and the brutality of  the  crime  shocks  the  judicial  conscience. Indeed the death penalty satisfies the society’s retributive goals and  is still  presumed to be a deterrent to potential offenders  Of   the  three  purposes  commonly  assigned  to punishment-retribution,    deterrence    and    reformation- deterrence is  generally held  to  be  the  most  important, although the continuing public demand for retribution cannot be ignored.  Prima facie,  the death  sentence is  likely to have a  stronger affect  as a  deterrent upon  normal  human beings  than  any  other  form  of  punishment.  People  are believed to refrain from crime because they fear punishment. Since people  fear death  more than anything else, the death penalty is the most effective deterrent. [146C-E]      (d) If  the appeal of capital punishment were merely to fear of  death, it  would be a very inefficient protector of society. In  civilised society and in peace time, government relies for  obedience more  on its  moral prestige  than  on violent repression  of crime.  Punishment only protects life effectively if  it produces  in possible-murderers, not only fear  of  the  consequences  of  committing  murder,  but  a horrified recoil  for the  thing itself It can only achieve, this, more  ambitious, task, if sentence of death is felt to embody  society’s   strongest  condemnation  of  murder  and keenest sense  of its  intolerable wickedness.  It is not by the fear  of death  but  by  exciting  in  the  community  a sentiment of  horror against  any particular  act, that  the offenders could be deterred from committing it. [143B-C]      Royal  Commission   on  Capital   Punishment  Para  59: referred to.      (e) The  punishment of  death should reflect adequately the revulsion  felt for  the gravest  of crimes by the great majority of citizens. Legislators and Judges: 87 share this  revulsion  themselves;  otherwise  indeed  their action would  be morally indefensible. Their aim then should be, not  only to  strike terror  nor even  to awaken popular indignation in  a direction  convenient  to  Government.  It

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would be  to arouse  in all  and sundry  their Own indignant repudiation of  a wicked act and at the same time, to deepen it in  themselves. In  this vain  sentence of death has been pronounced,   carried   out   and   acclaimed   with   stern satisfaction. Otherwise  the  conscience  of  the  community would  be   revolted  if   the  criminals  were  allowed  to live.[145F-G]      6.(a) The  theory that  (i) the death penalty is per se cruel and  unusual punishment  and  (ii)  alternatively  the inordinate delay in carrying it out makes it so has now been completely destroyed  by two  recent decisions  of the Privy Council.[149F]      Eaton Baker  v The Queen, L.R. [1975] AC 774 Freites v. George Ramouter Benny, LR [1975] AC 239; discussed.      (b) ln  the United  States of  America also  the  death penalty has  practically existed  more or  less harmoniously with humane  theories  of  criminal  justice  for  over  two hundred years (e.g). [151E]      (i) In  Trop v.  Dulles, [1958]  356 US 86, L. ed. 630, the Court refused to consider the death penalty as an indent of the  constitutional limit of punishment; (ii) In McGouths v. California,  [1971] 402  U.S. 183,  it was  held that the absence of  any guidelines  was  not  a  violation  of  "due process"  and  (iii)  In  Furman  v.  Georgia  the  multiple opinions did  not rule  out altogether  re-imposition of the death penalty  in the  future provided there was legislative structuring of a permissible system providing for sufficient procedural safeguards;  (iv) Later on, the death penalty has been reimposed  and this judicial approach stood reoriented. The constitutionality  of the death-penalty was supported by four factors  (1) the reference to capital punishment in the Constitution (ii)  the past  Supreme Court  decisions on the death penalty  (iii) the  limitations of judicial restraints and (iv)  the doctrine of separation of powers. [151F; 152D; 154E]      M. Cherif  Bassi Owni; Substantive Criminal Law p. 120- 128; referred to and (v)  In Gregg  v. Georgia, [1976] 428 U.S. 153; 49 L.ed. 2d. 859;  Proffit v.  Floride, [1976] 428 242; 49 L.ed. 2nd. 913; Jurek  Texas, [1976]  428 US 262; 49 L.ed. 2nd, 929-all concerned with  discretionary sentencing  procedures- and in Woodson v.  North Carolina,  [1975] 428 US 280; 49 L.ed. 944 and Roberts v. Lonisiana [1976] 428 US 326; 49 L.ed. 2d 974- both concerned  with mandatory  death sentence-it  was  held that (a) the punishment of death did not invariably violates the Constitution  (b) history  and precedent did not support the conclusion  that the death sentence was per se violation of 8th  and 14th  Amendments (c)  the evolving  standards of decency arguments  had been  substantially under  cut in the last four  years because  a large segment of the enlightened population regarded  the death  penalty as  appropriate  and necessary as  seen in the new legislation passed in response to Furman (d) the death penalty was not inherently cruel and unusual. It served two principal social purposes retribution and deterrence,  and therefore  the death  sentence for  the crime of  murder was  (1) not  without justification (2) not unconstitutionally   severe    and   (3)    not   invariably disproportionate to  the crime and (e) that Furman mandated, where discretionary  sentencing  was  used,  there  must  be suitable direction and 88 limitation to  minimise the risk of wholly and arbitrary and capricious  action,  the  bifurcated  trial  with  standards modelled after  the Modern  Penal Code juries gave just such guidance. [155F-G; 156A]

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Observation:      If there  has to  be a  law reform  at all, some regard must be had to the plight of the victim or his or her family by making provision for payment of compensation. While it is commonly accepted  that these convicted of violations of the criminal  law  must  "pay  their  debt  to  society,  little emphasis is  placed upon  requiring offenders  to "pay their debt" to  their victims.  These again  are matters  for  the Parliament to Provide.]

&      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 512 of 1978.      Appeal by  Special Leave  from the  Judgment and  Order dated 12-9-74 of the Allahabad High Court in Criminal Appeal No. 501/74.           AND      CRIMINAL APPEAL NO. 513 of 1978      Appeal by  Special Leave  from the  Judgment and  Order dated 9-1-1978  Kerala High  Court in Crl. A. No. 213/77 and Ref. Trial No. 3/77.           AND CRIMINAL APPEAL NO. 513 of 1978      Appeal by  special leave  from the  Judgment and  Order dated 28-9-77 of the Allahabad High Court in Criminal Appeal No. 261/73 and Reference No. 6/77.      R. K. Garg for the Appellant in Crl. A. No. 513/78.      S. K.  Bagga, Amicus  Curiae for  the Appellant in Crl. A.512/78      P. K.  Pillai, Amicus  Curiae for the Appellant in Crl. A. No. 511/78      D. P. Uniyal and M. V. Goswami for the State of U.P.      K.R. Nambiar for the State of Kerela.      The  Judgment  of  Krishna  Iyer  and  Desai,  JJ.  was delivered by  Krishna Iyer,  J.; Sen,  J. gave  a dissenting opinion.      KRISHNA IYER, J.                     THE DEADLY QUANDARY      To be  or not  to be:  that is  the question  of lethal import and  legal moment,  in each  of these  three  appeals where leave is confined to the 89 issue of  the propriety  of the  impost of  capital  penalty against which  the brutal  culprits desparately beseech that their dear  life be  spared by  the  Summit  Court  and  the incarceratory alternative  be awarded  instead. There is, as here, a  judicial dimension  to the  quasi-Hamletian dilemma when "a  murder most  foul" demands  of  sentencing  justice punitive infliction  of death  or the  lesser punishment  of life imprisonment,  since the Penal Code leaves the critical choice   between    physical   liquidation   and   life-long incarceration to  the enlightened  conscience and sensitized judgment of the Court.      A narration  of facts  is normally  necessary  at  this early stage but we relegate it to a later part, assuming for the nonce  the monstrosity  the murder in each case. Is mere shock  at   the  horrendous   killing  sufficient  alibi  to extinguish one  more life, de hors circumstances, individual and social,  motivational and  psychical ? The crime and the criminal, contemporary societal crisis, opinions of builders and moulders  of the  nation, cultural winds of world change and other profound factors, spiritual and secular, and above all,  constitutional,   inarticulately  guide   the  Court’s

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faculty in  reading the meaning of meanings in preference to a mechanistic  interpretation of  s. 302 I.P.C. projected in petrified print from Macaulay’s vintage mint.      We banish  the possible  confusion  about  the  precise issue before  us -it  is not  the constitutionality  of  the provision for  death penalty,  but only  the canalisation of the sentencing  discretion in  a  competing  situation.  The former problem  is now  beyond forensic doubt after Jagmohan Singh(’) and  the latter  is in  critical need  of  tangible guidelines, at  once constitutional  and functional. The law reports reveal  the impressionistic  and unpredictable notes struck by  some decisions  and the  occasional vocabulary of horror and  terror, of extenuation and misericordia, used in the  sentencing  tailpiece  of  judgments.  Therefore,  this jurisprudential exploration,  within the framework of s. 302 I.P.C., has  become necessitous,  both because  the  awesome ’either/or’ of the Section spells out no specific indicators and law  in this fatal area cannot afford to be conjectural. Guided missiles.  with lethal  potential, in unguided hands, even judicial,  is a  grave risk  where the  peril is mortal though tempered by the appellate process. The core question- the only  question that  occupies our  attention, within the confines of  the Code,  is as  to when and why shall capital sentence be  pronounced on  a murderer  and why not in other cases.      The penological  poignancy and  urgency of the solution is obvious  since the human stakes are high, and error, even judicial error      (1) Jagmohan  Singh v  State of  Uttar Pradesh (1973) I S.C.C.20. 7-196SCI/79 90 silences for  ever a living being and despatches him to that ’undiscovered  country   from  whose   bourn  no   traveller returns’: nor,  once executed,  can ’storied urn or animated bust back  to its  mansion call  the fleeting  breath’.  The macabre irrevocability  of the  extreme  penalty  makes  the sombre issue  before us  too important  to be  relegated, as often happens, to a farewell paragraph, with focus on fright ful features  of the crime and less stress on the crime-doer and related  factors. When  human rights  jurisprudence  and constitutional protections  have escalated to sublime levels in our  country and  heightened awareness  of the gravity of death penalty is growing all over the civilised globe in our half-century, is  it right  to leave  s. 302 I.P.C. in vague duality and  value-free neutrality?  Any  academic  who  has monitored Indian  sentencing precedents on murder may awaken to ’the  overt ambivalence and covert conflict’ among judges ’concerning continued  resort to  the death sentence’ which, according to  Prof.  Blackshield,(’)  ’seems  to  minor  the uncertainties and  conflicts  of  values  in  the  community itself’. This  tangIed web of case-law has been woven around the terse  terms of  s. 302,  I.P.C. during the last hundred years.                THE OLD TEXT AND THE NEW LIGHT           Section  302.  Whoever  commits  murder  shall  be      punished with  death, or  imprisonment  for  life,  and      shall also be liable to fine.      Such stark brevity leaves a deadly discretion but beams little legislative  light on  when the  court shall hang the sentencee or why the lesser penalty shall be preferred. This facultative fluidity  of the  pro vision  reposes a trust in the court  to select.  And ’discretionary  navigation in  an unchartered sea is a hazardous undertaking unless recognised and recognizable  principles, rational  and  constitutional,

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are  crystallised   as  ’interstitial  legislation’  by  the highest court.  The flame  of life cannot flicker uncertain! and so  s.  302  I.P.C.  must  be  invested  with  pragmatic concreteness  that   inhibits  ad   hominem   Responses   of individual  judges   and  is   in  penal   conformance  with constitutional  norms   and  world  conscience.  Within  the dichtomous frame-work  of s.  302 I.P.C., upheld in Jagmohan Singh, we have to evolve working rules of punishment bearing the  markings   of  enlightened   flexibility  and  societal sensibility.  Hazy  law,  where  human  life  hangs  in  the balance, injects  an agonising  consciousness that  judicial error may      (1)   Prof. A.  R. Blackshield,  Associate Professor of           Law,  University   of  New  South  Wales:  Capital           Punishment in  India:  The  Impact  of  the  Ediga           Anamma Case-July 1977. 91      prove to  be ’crime’  beyond punishment’.  And  history bears testimony to reversal of Court verdict by Discovery of Time. The  tragic speech  in  the  Commons  of  former  Home Secretary (Chuter Ede) makes ghastly reading (1)           "I was  the Home  Secretary who  wrote  on  Evans’      papers. "The  law must  take its course." I never said,      in 1948  that a  mistake was impossible. I think Evans’      case shows,  in spite  of all that has been done since,      that a  mistake was  possible, and that, in the form in      which the  verdict was  actually given  on a particular      case, a  mistake was  made. I  hope that no future Home      Secretary, which in office or after he has left office,      will ever  have to  feel that  although he did his best      and no one could accuse him of being either careless or      inefficient, he  sent a  man to the gallows who was not      "guilty as charged."      That  is  why  we  devote  a  whole  judgment  to  what ordinarily is a brief finale at the end of a long opinion.      ln Ediga  Annamma(2), this  Court  did  set  down  some working formulae  whereby a  synthesis could  be reached  as between    death    sentence    and    life    imprisonment. Notwithstanding the  catalogue of  grounds warranting  death sentence as  an exceptional  measure, ’life’ being the rule, the judicial  decisions have  been differing (and dithering) at various  levels, with  the result the need for a thorough re-examination has  been forced  on us  by counsel  on  both sides. Prof. Blackshield makes an acid comment: (3)           "The fact  is that  decisions since  Ediga  Anamma      have  displayed   the  same   pattern   of   confusion,      contradictions and aberrations as decisions before that      case ....To  test this,  I have abstracted from the All      India Reporter seventy cases in which the Supreme Court      has had  to choose between life and death under Section      302: the  last twenty-five  reported cases  before  the      date  of   Ediga  Anamma,   and  the  next  forty  five      (including, of course, Ediga Anamma itself) on or after      that date."           "But  where   life  and   death  are   at   stake,      inconsistencies which  are understandable  may  not  be      acceptable. The  hard evidence of the accompanying "kit      of cases" compels the      (1)   The Crusade  against Capital  Punishment in Great           Britain by Elizabeth Orman Tuttle, 1961, p. 96.      (2)   Ediga Annama  v. State of Andhra Pradesh (1974) 4           S.C.C. 43.      (3)   Prof. A.  R. Blackshield,  Associate Professor of           Law,  University   of  New  South  Wales:  Capital           Punishment in  India. The Impact of Ediga Annamma.

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         Case-July 1977. 92      conclusion that,  at least  in contemporary  India, Mr. Justice  Douglas’   argument  in  Furman  v.  Georgia(l)  is correct:  that   arbitrariness  and   uneven  incidence  are inherent and  inevitable in  a system of capital punishment; and that therefore- in Irritant constitutional terms, and in spite of  Jagmohan  Slngh-the-retention  of  such  a  system necessarily violates  Article 14’s  guarantee  of  "equality before the law." The author further observes:           "One source of the confusion seems to have been an      under-current of disagreement as to the correctness and      applicability of  the argument in Ediga Anamma. But the      only direct  challenge has been in Bishan Dass v. State      of Punjab,  AIR 1975 SC 573 (January 10, 1975: Case 52)      and, with  respect, the  challenge there  seems clearly      misconceived." What a  study of  the decisions  of the higher courts on the life-or-death choice  shows is  that judicial  impressionism still shows  up and  it is  none too  late  to  enunciate  a systematised set  of criteria  or at  least reliable beacons Ediga   Annamma    (supra)   in    terms,   attempted   this systematisation:           "Let  us   crystallise  the   positive  indicators      against death  sentences under  Indian  Law  currently.      Where the  murderer  is  too  young  or  too  old,  the      clemency of penal justice helps him. Where the offender      suffers   from   socio-economic,   psychic   or   penal      compulsions insufficient  to attract  a legal exception      or to  down-grade the crime into a lesser one, judicial      com  mutation  is  permissible.  Other  general  social      pressures,  war   ranting  judicial   notice,  with  an      extenuating impact  may in  special cases,  induce  the      lesser penalty.  Extraordinary features in the judicial      process, such  as that the death sentence has hung over      the  head  of  the  culprit  excruciatingly  long,  may      persuade the  Court to  be compassionate. Like wise, if      others involved  in the  crime and  similarly  situated      have received  the benefit  of life  imprisonment or if      the offence  is only  constructive (i.e.  combining the      "murder"  provision   with  the   "unlawful   assembly"      provisione again  (if) the  accused has  acted suddenly      under  another’s  instigation,  without  premeditation,      perhaps the  court may humanely opt for life, even life      where  a   just  cause  or  real  suspicion  of  wifely      infidelity pushed  the criminal  into the crime. On the      other hand,  the weapons  used and  the manner of their      use the      (1) 408 U. S. at 238. 93      horrendous features  of the crime and hapless, helpless      state A of the victim, and the like, steel the heart of      the law  for a  sterner sentence.  We cannot  obviously      feed into a judicial computer all such situations since      they are astrological imponderables in an imperfect and      undulating society.  A legal  policy on  life or  death      cannot  be   left  for   ad-hoc  mood   or   individual      predilection and  so we have sought to objectify to the      extent possible,  abandoning retributive  ruthlessness,      amending the  deterrent creed  and accepting  the trend      against the  extreme and irrevocable penalty of putting      out life.’’(l)      From  what  we  have  said  and  quoted  and  from  the persistence Or  forensic divarication,  it  has  now  become

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necessary to  have a  second look  at the  life versus death question, not  for summarising  hitherto decided  cases  and distilling  the   common  factors   but  for   applying  the Constitution to  cut the  Gordian knot. The Suprema lex must set the  perspective and illumine the meaning of subordinate statutes   especially    where   some   provisions   contain obfuscatory elements,  for, our  founding fathers  have  not hammered out  a merely pedantic legal text but handed down a constellation of  human  values,  cherished  principles  and spiritual norms  which belight  old codes  and imperial laws and impel  new interpretations  and legislations  to tune up the New  Order. The  Indian Penal Code must be sensitized by the healing  touch of  the  Preamble  and  Part  lII.  Wrote Wheeler, J :(2)           "That court  best serves  the law which recognises      that the  rules of  law  which  grew  up  in  a  remote      generation may, in the fullness of experience, be found      to serve  another generation  badly, and which discards      the old  rule when  it finds  that another  rule of law      represents what  should be according to the established      and settled judgment of society..." Benjamin N. Cardozo, said: (3)           "If judges  have woefully misinterpreted the mores      of their  day, or  if the  mores of  their day  are  no      longer those  of  ours,  they  ought  not  to  tie,  in      helpless submission, the hands of their successors."      Such a  solution to  the death/life alternatives, where the Code  leaves the  Judge in  the cold,  has  its  limits. "Justice Homes put his view pithily when he said that judges make law  interstitially, that  they are confined from molar to molecular motion. Justice Frankfurter puts      (1)   Ediga Annamma  v. State  of A. P. (1974) 4 S.C.C.           443 at 453.      (2)  Dwy v. Connecticut Co., 89 Conn. 74, 99.      (3)   The Nature of the Judicial Process by Benjamin N.           Cardozo. p. 152. 94 it more  colloquially saying that judges make law at retail, legislators at wholesale.’’(l) Therefore, it is no heresy to imbibe and  inject the social philosophy of the Constitution into the  Penal Code to resolve the tension between the Past and the Present.           QUO VADIS DISCRETIONARY DEATH SENTENCE ?      lndian  Justice   and  the   constitutional  order  are centuries ahead  of the  barbarities of  Judge  Jeffreys  of ’Bloody Assizes’ fame; and ideologically away from the years of imperial  butchery of Indian uprising when the Penal Code was drafted.  Since Law  reflects Iife,  new  meanings  must permeate the  Penal Code.  The deprivation of life under our system is  too fundamental  to  be  permitted  save  on  the gravest ground  and under the strictest scrutiny if Justice, Dignity,  Fair   Procedure   and   Freedom   are   creedally constitutional. So  it is  that in this bunch of appeals the court is  called upon by counsel for the appellants to repel sentence by  hunch and to lay down broad norms and essential principles as beacon lights which make the law of murder, in the sentencing sector, most restrictive and least vagarious.      More  illumination   and  closer   examination  of  the provisions viz.,  s.302 in  the larger  humanist context and constitutional conspectus,  is  necessitous.  Legal  justice must be made of surer stuff where deprivation of life may be the  consequence.   So  we  have  heard  a  wider  range  of submissions and  sought the,’amicus’ services of the learned Solicitor General. An intervener (Committee for Abolition of Death Penalty,  interested in abolition of death penalty has

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submitted, through  Dr. L.  M. Singhvi,  some  material.  We record our  appreciation af  the  assistance  given  by  the former and  take due  note of  the views  presented  by  the latter. Light,  not heat,  is welcome from any source in aid of judicial justice.      We are cognizant of the fact that no inflexible formula is feasible  which will  provide a  complete set of criteria for the  infinite variety  of circumstances  that may affect the gravity  of the  crime of  murder,  as  pointed  out  by Palekar, J.  in Jagmohan  Singh (supra).  The learned  Judge further observed:           "The impossibility  of laying down standards is at      the very  core of  the criminal  law as administered in      India which  in vests  the  judges  with  a  very  wide      discretion in  the  matter  of  fixing  the  degree  of      punishment. The  discretion in  the matter  of sentence      is, as already pointed out, liable to be corrected , by      superior courts." (p. 35)      (1) "Social Justice" Ed. by Richard B. Brandt, p. 109. 95      What is  important to  remember  is  that  while  rigid prescriptions  and   random  prescriptions   which  imprison judicial  discretion  may  play  tricks  with  justice,  the absence, altogether,  of any  defined  principles  except  a variorum of  rulings may  stultify sentencing law and denude is of  decisional precision. ’Well-recognised principles’ is an elegant phrase. But what are they, when minds differ even on the basics ?      Fluctuating  facts   and  keleidoscopic  circumstances, bewildering  novelties   and  unexpected  factors,  personal vicissitudes  and  societal  variables  may  defy  standard- setting for  all situations;  but that  does not  mean  that humane principles should be abandoned and blanket discretion endowed, making  life  and  liberty  the  plaything  of  the mentality of  human judges. Benjamin Cardozo has pricked the bubble of  illusion  about  the  utter  objectivity  of  the judicial process: (1)           "I have  spoken of  the  forces  of  which  judges      avowedly avail  to shape  the form and content of their      judgments.  Even  these  forces  are  seldom  fully  in      consciousness. They  lie so  near the surface, however,      that their existence and influence are not likely to be      disclaimed.  .  .Deep  below  consciousness  are  other      forces, the  likes and  the dislikes, the predilections      and  the  prejudices,  the  complex  of  instincts  and      emotions and  habits and  convictions, which  make  the      man, whether he be litigant or judge." Section 302  is silent; so the judges have to speak, because the  courts   must  daily   sentence.  Merely  to  say  that discretion is guided by wellrecognised principles shifts the issue to  what those recognised rules are. Are they the same as were  exercised judicially  when Bhagat  Singh was  swung into physical oblivion ? No. The task is to translate in new terms the  currently  consecrated  principles,  informed  by tradition, methodized by analogy, disciplined by system, and subordinated to ’the primordial necessity of order in social life’. The  error of parallax which dated thought processes, through dusty precedents, may project needs to be corrected. That is the essay we undertake here.      Moreover, the  need for  well-recognised principles  to govern the  ’deadly’ discretion  is so  interlaced with fair procedure that  unregulated power  may even militate against Art. 21  as expounded  in Maneka Gandhi’s case(2), an aspect into which  we do not enter here. Judicial absolutism or ad- hocism is anathema in our constitutional scheme. It

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    (1)   The Nature of the Judicial Process by Benjamin N.           Cardozo p.  167. (2)  Maneka Gandhi  v.  Union  of           India (1978) I S.C.C. 248.      (2)  Maneka Gandhi v Union of India (1978) 1 S.C.C.248 96 has been  said that  ’a judge  untethered by  a  text  is  a dangerous instrument’;  and we  may well  add,  judge-power, uncanalised by  clear principles  may be  equally  dangerous when the  consequence of  his marginal  indiscretion may  be horrific hanging of a human being until he be dead. Palekar, J. himself  accepted that  "well-recognised principles" must govern sentencing discretion.      The  precise   criteria  which   constitute,  and   the normative nature  of those  principles did not directly fall for decision  as that  case proceeded  on the basis that the lower  courts   had   rightly   exercised   the   sentencing discretion. The  precise and  only issue that was mooted and decided in Jagmohan Singh(l) was the constitutionality of s. 302 I.P.C.  and the  holding was  that ’the  death  sentence imposed after trial in accordance with procedure established by law  is not  unconstitutional’.  The  acceptance  of  the invulnerability of  discretionary power  does  not  end  the joureney;  it   inaugurates  the   search  for  those  ’well recognised  principles’   Palekar,  J.,  speaks  of  in  the Jagmohan case. Incidental observations without concentration on  the  sentencing  criteria  are  not  the  ratio  of  the decision. Judgments  are not  Bible for  every  line  to  be venerated.      When the legislative text is too bald to be self-acting or  suffers   zigzag  distortion   in  action   the  primary obligation is  on Parliament  to enact  necessary clauses by appropriate amendments  to s.  302 I.P.C. But if legislative undertaking is not in sight judges who have to implement the Code cannot  fold up  their professional hands but must make the  provision   viable  by   evolution   of   supplementary principles even  if it  may appear to possess the flavour of law-making. Lord Dennings observations are apposite:           "Many of the Judges of England have said that they      (lo not  make law.  They only  interpret it. This is an      illusion which  they have  fostered. But it is a notion      which is  now being  discarded  everywhere.  Every  new      decision-on every new situation-is a development of the      law. Law  does not  stand still.  It moves continually.      Once this  is recognised, then the task of the Judge is      put on  a higher  plane. He  must consciously  seek  to      mould the  law so as to serve the needs of the time. He      must not  be a  mere mechanic,  a mere  working  mason,      laying brick  on brick,  without thought to the overall      design.  He   must  be  an  architect-thinking  of  the      structure as  a whole, building for society a system of      law which  is strong,  durable and  just. It  is on his      work that civilised society itself depends."      (1)   The Supreme Court of India-A Socio-Legal Critique           of  its  Juristic  Techniques  by  Rajeev  Dhavan-           Foreword by Lord Denning, M. R. 97      The Court’s tryst with the Constitution obligates it to lay down  A general  rules, not  a complete directory, which will lend  predictabilily to the law vis-a-vis the community and guide  the judiciary  in such  a grim  verdict as choice between  life   and  death.  The  right  to  life,  in-  our constitutional order,  is  too  sacred  to  be  wished  away without so much as Directive Principles for its deprivation, save  sweeping   judical  discretion   and   reference   for confirmation or  appellate review_ the know-how for exercise

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of either  being left  to the  assumed infallibility  of the curial process  in the  face of the daily reality that there are cxtreme variations among judges themselves on ’when’ and ’why’ the extreme penalty shall or shall not be inflicted.      Currently, the  welter of  the British Indian and post- Independence decisions and the impact of laconic legislative changes in the Criminal Procedure Code the competition among the retributive,  deterrent, the  reformative and  even  the existentialist theories  of punishment  and  of  statistical studies and  sociological  and  cultural  winds  settle  the lethal fate of the living man in the cage.      Law must  be honest to itself. Is it not true that some judges count  the number of fatal wounds, some the nature of the weapons  used, others count the corpses or the degree of horror and  yet others  look into  the age  or  sex  of  the offender and  even the  lapse  of  time  between  the  trial court’s award  of death  sentence and  the final disposal of the  appeal  ?  With  some  judges,  motives,  provocations, primary or  constructive guilt,  mental disturbance  and old feuds, the  savagery of  the murderous  moment or  the  plan which has  preceded the  killing,  the  social  milieu,  the sublimated class  complex and  other odd  factors enter  the sentencing calculus.  Stranger still,  a  good  sentence  of death by  the trial  court is sometimes upset by the Supreme Court because  of Law’s  delays. Courts  have been  directed execution of murderers who are mental cases, who do not fall within the  McNaghten rules,  because of  the insane fury of the slaughter.  A big  margin of  subjectivism, a preference for old  English precedents,  theories of  modern  penology, behavioural emphasis  or social antecedents, judicial hubris or human  rights perspectives,  criminological  literacy  or fanatical reverence  for outworn  social philosophers buried in the  debris  of  time  except  as  part  of  history-this plurality of forces plays a part in swinging the pendulum of sentencing justice  erratically. Therefore, until Parliament speaks, the court cannot be silent. (Hopefully, s.302 l.P.C. is being  amended, at  long last,  but it  is only  half-way through as  the Rajya Sabha proceedings show. We will revert to it later). 98      Prof. Blackshield,  on an  analytical study  of  Indian death sentence  decisions, has  remarked with unconventional candour:           "But  where   life  and   death  are   at   stake,      inconsistencies which  are understandable  may  not  be      acceptable." His further comments are noteworthy:           "The fact is that in most cases where the sentence      of death under S.302 is confirmed by the Supreme Court,      there is  little or  no discussion  of the  reasons for      confirmation. Sometimes  there is  a brief assertion of      "no extenuating  circumstances" (which  seems to  imply      that  the   Court  is   making  its  own  discretionary      judgment; at  other times there is a brief assertion of      "no ground to interfere" (which seems to imply that the      Court is  merely reviewing  the legitimacy  of the High      Court’s  choice   of  sentence).   The  result   is  to      obfuscate, probably beyond any hope of rationalisation,      the analytical issues involved."(supra)      The twists  and turns  in sentencing  pattern  and  the under-emphasis on  the sentencee’s  circumstances in decided cases make  an in-depth  investigation of  the  ’principles’ justifying the award of death sentence a constitutional duty of conscience.  This Court  must extricate, until Parliament legislates, the  death sentence  sector  from  judicial  sub

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jectivism and consequent uncertainty. As Justice Cardozo, in The Nature of the Judicial Process, bluntly states: (1)           "There has  been a  certain lack of candor in much      of the  discussion of  the theme,  or rather perhaps in      the refusal  to discuss  it, as  if  judges  must  lose      respect and  confidence by  the reminder  that they are      subject to  human limitations.. if there is anything of      reality in my analysis of the judicial process, they do      not stand  aloof on  these chills  and distant heights;      and we  shall not help the cause of truth by acting and      speaking as  if they  do. The  great tides and currents      which engulf the rest of men do not turn aside in their      course and pass the judges by."      It is  fair to  mention that the humanistic imperatives of the  Indian    Constitution, as paramount to the punitive strategy of  the Penal  code, have  hardly been  explored by courts in  this field of ’life or death’ at the hands of the law. The  main focus of our judgment is on this poignant gap in ’human  rights jurisprudence’  within the  limits of  the Penal Code,  impregnated by  the  Constitution.  To  put  it pithily, a  world order  voicing  the  worth  of  the  human person, a cultural legacy      (l) pp. 167-168. 99 charged with  compassion, an  interpretative liberation from colonial A  callousness to  life and  liberty, a concern for social justice  as setting the sights of individual justice, interact with  the inherited text of the Penal Code to yield the goals  desiderated by  the Preamble  and Articles 14, 19 and 21.      Nor can  courts be  complacent in the thought that even if they err the clemency power will and does operate to save many a life condemned by the highest court to death. For one thing, the  uneven politics  of executive clemency is not an unreality  when   we  remember   it  is  often  the  violent dissenters, patriotic  terrorists, desperadoes  nurtured  by the sub-culture  of poverty and neurotics hardened by social neglect, and  not the  members of  the Establishment or con- formist  class,   who  get  executed  through  judicial  and clemency processes.  Executive commutation  is no substitute for judicial  justice; at  best it  is administrative policy and at worst pressure-based partiality. In either case, that court self-condemns itself which awards death penalty with a sop  to   its  conscience  that  the  habitual  clemency  of Government will  soften the  judicial excess in sentence. If justice under  the law  justifies the  lesser sentence it is abdication of  judicial power to inflict the extreme penalty and extraneous  to seek  consolation in  the possible benign interference by the President. The criteria for clemency are often different.  We arc  thus left  with the  necessity  to decipher sentencing discretion in the death/life situation.                     SENTENCING CYNOSURES      Having stated  the area  and object of investigation we address ourselves  to this grave penological issue purely as judges  deciding  a  legal  problem,  putting  aside  views, philosophical or criminological, one holds. But law, in this area, cannot  go  it  alone;  and  cross-fertilisation  from sociology,  history,   cultural  anthropology   and  current national perils  and  developmental  goals  and  above  all, constitutional currents, cannot be eschewed.      Let us  leave ’law’  a while and begin with drawing the backdrop with a lurid brush. Every sombre dawn a human being is hanged  by the  legal process, the flag of humane justice shall be  hung half-mast. Such is the symbolic reverence the land of  Gandhi should  pay to  human life  haltered  up  by

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lethal law. The values of a nation and ethos of a generation mould concepts of crime and punishment. So viewed, the lode- star of  penal policy  to day,  shining  through  the  finer culture of  former centuries,  strengthens the  plea against death penalty.  Moreover, however  much judicially  screened and constitutionally  legitimated,  there  is  a  factor  of fallibility, a  pall that  falls beyond recall and a core of sublimated cruelty implied in every death penalty. 100 This  is   the  starting   point  of   our  re-appraisal  of presidential and  legislative texts, with a view to evolving clearer  criteria   for  choice   between   the   Life-Death Alternatives enacted  into  the  Penal  Code.  We  may,  for emphasis,  recall   s.  302   I.P.C.,-at  once  laconic  and draconic, which reads:           s.302.-Punishment  for   murder.-Whoever   commits      murder shall  be punished  with death,  or imprisonment      for life, and shall also be liable to fine." We approach  the resolution of the punishment predicament in a manner  at once  legal,  logical  and  criminological  and impregnated with  values constitutional.  Therefore, we will first study  the significant legislative developments in the two interacting  Codes and  related par liamentary essays at change.  Where   broad  conclusions   emerge  from  such  an investigation, constitutional  reinforcement may  be sought. Since the  Constitution  is  paramount  and  paramountcy  is paramountcy,   its   expansive   humanism   must   overpower traditional ’terrorism’  in the practice of sentencing. When this stage is reached and formulation of guidelines made, we will consider  the criminological foundations of theories of punishment   which   harmonise   with   the   human   rights jurisprudence of  our cultural  cosmos. Finally, we will set down the  salient cynosures  for judges  in their day-to-day labours.      One sentencing  aspect which  has found prominent place in  the  Criminal  Procedure  Code,  1973,  but  more  often ignorantly ignored,  needs  to  be  highlighted  for  future guidance. The  cases actually  de  manding  decision,  their factual  matrices   and  the   actual  application   of  The principles  we   have  formulated   to  the   appeals  under consideration are the decisive part of the judgment.      The sister Codes-the Indian Penal Code and the Criminal Procedure  Code-are   interwoven   into   the   texture   of sentencing. So  much so, the various changes in s.367 of the Procedure Code,  1898 and its re-incarnation in s.354 of the Code of  1973 impact on the inter pretation of s. 302 of the Penal Code. The art of statutory construction seeks aid from connective tissues, as it were, of complementary enactments. This  mode   offers  a   penological  synthesis   Parliament legislatively intended.  From this angle, we may examine the history of the amendments to the Procedure Code in so far as they mould’  the sentencing  discretion  vested  by  s.  302 I.P.C.      Vintage words  adapt their semantic content with change in Society’s  thoughtways and people’s mores. Linkwise, Law- Life mutuaIity  moulds  judicial  construction.  So  when  a nineteenth century Code, 101 with vital impact on life and liberty, falls for examination in the last quarter of the twentieth century, criminological developments finds  their way  into the process of statutory decoding. This  is obviously  permissible, even necessary. A progressive  construction   which  up-dates   the  sense  of statutory language  has been  adopted  in  Weems  v.  United States(1) and commended by jurists.

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    We may  ask ourselves whether the Procedure Code, which intertwines  with   the  Penal   Code  lends   discretionary direction? Similarly,   a  brief  suruey  of  the  trend  of legislative endeavours  may also  serve to  indicate whether the  people’s   consciousness  has  been  projected  towards narrowing or  widening the  scope for  infliction  of  death penalty. Current  criminological theories,  the march of the abolitionist movement  across the  continents, the  national heritage and  voice  of  the  makers  of  modern  India  and parliamentary re-thinking  on reform  of the  Penal Code may also be  indicators. In this setting, let us rationalize and humanize the discretionary exercise under s.302 I.P.C.      Several attempts  have been  made to restrict or remove death penalty  under s.  302 but  never even once to enlarge its application. Parliamentary pressure has been to cut down death penalty,  although the  section formally  remains  the same and  is very  nearly being  wholly recast benignly. The cue for the Court is clear.      "In 1931,  an abolition  bill  was  introduced  in  the Legislative Assembly  by Gaya Prasad Singh; but a motion for circulation of the bill was defeated after it was opposed by the government.      The pattern  after independence has been much the same. In 1956,  a bill  introduced in  the Lok Sabha by Mukund Lal Agarwal was  rejected after government opposition. In 1958 a Resolution for  abolition,  moved  in  the  Rajya  Sabha  by Prithvi Raj  Kapur, was withdrawn after debate. (Its purpose had been  served, said Shri Kapur). "The ripples are created and it  is in the air": Rajya Sabha Debates, April 25, 1958, Cols.444-528. In  1961 a  further Resolution,  moved in  the Rajya Sabha  by Mrs  Savitry Devi Nigam, was negatived after debate.      In 1962,  however Resolution  moved in the Lok Sabha by Raghunath Singh  received more  serious attention: Lok Sabha Debates, April  21, 1962,  Cols.307-365. The  Resolution was withdrawn,   but only  after the  government  had  given  an undertaking  that  a  transcript  of  the  debate  would  be forwarded to the Law Commission, for consi- 102 deration in  the context of its review of the Penal Code and the Criminal  Procedure Code.  The result was a separate Law Commission Report  on Capital  Punishment, submitted  to the government in September, 1967." (supra)      At pages 354-55, the Law Commission summarized its main conclusions as follows           It is  difficult to  rule out that the validity of      or the  strength behind,  many  of  the  arguments  for      abolition. Nor  does the  commission treat  lightly the      argument based on the irrevocability of the sentence of      death, the  need for a modern approach, the severity of      capital punishment,  and the  strong feeling  shown  by      certain sections  of public opinion in stressing deeper      questions of human values.      Having regard,  however, to the conditions in India, to the variety  of the social upbringing of its inhabitants, to the disparity  in the level of morality and education in the country, to  the vastness   of its area, to the diversity of its population  and to  the paramount need for main taining, law and  order in the country at the present juncture  India cannot  risk     the  experiment  of  abolition  of  capital punishment."      Currently, there  is a Bill introduced in the Lok Sabha for total  abolition. The  most meaningful  contribution  to ’human rights  legality’  in  the  ’terminal’  territory  of punitivity is  the parliamentary  amendment to  s.302 I.P.C.

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half-way through  and, if we may say so  with respect, half- fulfinling  both     the   humanist  quintessence   of   the Constitution and,  may be,  the creed  of the  Father of the Nation. Gandhiji long ago wrote in the Harijan:           "God Alone  Can Take  Life Because  He Alone Gives           it"      We will  dwell on  this Indian  Penal Code  (Amendment) Bill, 1972 passed by the Rajya Sabha in  1978, later in this Judgment but  mention this seminal event as a kindly portent against the  ’homicidal’ exercise  of discretion,  often  an obsession with  retributive justice  in  disguise.  And  the parliamentary prospects,  to the extent relevant to judicial discretion disappoint  those who  are restless  if murder is divorced from  death penalty.  The Future shapes the Present on occasions  and therefore  we take note of this big change in the  offing. Section  302, as  now recast  by  the  Rajya Sabha, reads:      302. (1)  Whoever   commits  murder   shall,  save   as           otherwise vided  in sub-section  (2), be  punished           with imprisonment  for  life  and  shall  also  be           liable to fine. 103           (2)  Whoever commits murder shall,-                (a)  if the  murder has  been committed after                     previous planning  and involves  extreme                     brutality; or                (b)  if  the   murder  involves   exceptional                     depravity; or                (c)  if the  murder is of a member of  any of                     the armed  forces of  the Union  or of a                     member of  any police  force or  of  any                     public servant and was committed-                     (i)  while such member or public servant                          was on duty;                     (ii) in consequence  of anything done or                          attempted to be done by such member                          of public  servant  in  the  lawful                          discharge  of   his  duty  as  such                          member or public servant whether at                          the time  of  murder  he  was  such                          member or  public  servant  as  the                          case may  be, or  had ceased  to be                          such member or public servant; or                (d)  if the  murder is  of a  person who  had                     acted in  the lawful  discharge of  this                     duty under  section 43  of the  Code  of                     Criminal Procedure,  1973,  or  who  had                     rendered assistance to a Magistrate or a                     police  officer  demanding  his  aid  or                     requiring his  assistance under  section                     37 or section 129 of the said Code; or                (e)  if the murder has been committed by him,                     while  under  sentence  of  imprisonment                     for- life,  and such sentence has become                     final,                be punished  with death,  or imprisonment for                life, and shall also be liable to fine.           (3)  Where a  person while undergoing sentence  of                imprisonment  for   life  is   sentenced   to                imprisonment for  an offence under clause (e)                of sub-section  (2) such  sentence shall  run                consecutively and not concurrently:(1)      Maybe, the  fuller and finer flow of the constitutional stream of  human dignity  and social  justice will shape the provision more  reformatively. Suffice  it to  say that  the

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battle against  death penalty  by  parliamentary  action  is gaining ground  and those who do live in the ivory tower-and Judges, hopefully,  do  not-will  take  cognizance  of  this compassionate trend.      The inchoate  indicators  gatherable  from  the  direct reforms of  death penalty  take us  to the  next ’neon sign’ from the changes in the 104 Procedure Code.  Section 302  I.P.C., permits  death penalty but s.354  (3) of  the Procedure  Code, 1973  processes  the discretionary  power.   The  central   issue  of  death/life discretion is not left naked by the Procedure Code which, by necessary  implication,   has  clothed   it  with  pro  life language.  The   legislative  development,  through  several successive amendments,  has shifted  the punitive  centre of gravity from  life-taking, to  life sentence. To start with, s. 367(5)  obligated the  court to  ’state  the  reason  why sentence of  death was  not passed’.  In  other  words,  the discretion was  directed positively  towards death  penalty. The next  stage  was  the  deletion  of  this  part  of  the provision leaving  the judicial  option open.  And then came the new humanitarian sub-section [s. 354 (3)] of the Code of 1973, whereby  the dignity  and worth  of the  human person, under-scored in  the Constitution,  shaped the  penal policy related to murder. The sub-section provides:           "When the  conviction is for an offence punishable      with death  or, in  the alternative,  with imprisonment      for life  or imprisonment  for a  term  of  years,  the      judgment shall  state  the  reasons  for  the  sentence      awarded, and,  in the  case of   sentence of death, the      special reasons for such sentence."                                             (emphasis added)      Thus     on  the  statutory  side,  there  has  been  a significant  shift since India became free. In practice, the effect of the pre-1955 version is that while the former rule was to . sentence to death a person convicted for murder and to impose  the lesser sentence for reasons to be recorded in writing, the  process has suffered a reversal now. Formerly, capital punishment  was to be imposed unless special reasons could be  found to  justify the  lesser sentence.  The  1955 amendment, removing  the requirement,  had left  the  courts equally free to award either sentence. Finally, with the new 1973 provision-           "a great  change  has  overtaken  the  law.....The      unmistakable shift in legislative emphasis is that life      imprisonment  for   murder  is  the  rule  and  capital      sentence the exception to be resorted to for reasons to      be  stated...   It  is   obvious  that   the  disturbed      conscience of  the State on the vexed question of legal      threat to  life by. way of death sentence has sought to      express itself  legislatively, the  stream of  tendency      being  to  wards  cautious,  partial  abolition  and  a      retreat from total retention."      The twin  survey of  attempted  and  half  accomplished changes in  the  Penal  Code  and  the  statutory  mutation, pregnant with significance, 105 wrought into  the procedure Code, definitely drives judicial discretion  to a benign destination. The message of the many legislative exercises  is that  murder  will  ordinarily  be visited only  with life  imprisonment and  it is  imperative that death sentence shall not be directed unless there exist "special reasons for such sentence."      The era  of broad  discretion when  Jagmohm’s case  was decided   has ended  and a  chapter of restricted discretion

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has since  been inaugurated.  This is a direct response, not merely to  the humane  call of the Constitution, but also to the wider  cultural  and  criminological  transformation  of opinion on  the futility  of the law of ’Life for Life’ ’red in tooth and claw’. No longer did judicial discretion depend on vague  ’principles’. It  became accountable to the strict requirements of s.354(3) of the 1973 Code.      By way  of aside, we may note that the consolation that judicial discretion  in action  is geared  to justice is not always true to life.           "The discretion  of a judge is said by Lord Camden      to be  the law  of tyrants: it is always unkonwn; it is      different in  different men;  it is casual, and depends      upon constitution,  temper and passion. In the best, it      is of  ten times  caprice; in  the worst,  it is  every      vice, folly  and  passion  to  which  human  nature  is      liable........ "  1  Bouv.  Law  Dict.,  Rawles’  Third      Revision p.885."           "An appeal to a judge’s discretion is an appeal to      his  judicial   conscience.  The   discretion  must  be      exercised, not  in opposition  to,  but  in  accordance      with,  established  principles  of  law."  (Griffin  v.      State, 12 Ga. App. 615)"      Here is  thus an  appeal to  the informed conscience of the sentencing  judge not  to award  death penalty  save for special reasons  which  have direct nexus with the necessity for hanging the murderer by law.      The revolutionary import of the target expression, in a death sentence  situation, viz.,  ’the special  reasons  for such sentence  demands perceptive exploration with emotional explosion or  sadistic  sublimation  disguised  as  ’special reason’. Here  we  enter  the  penological  area  of  lethal justice, social defence and purpose-oriented punishment.      Before launching  on the decisive discussion it is fair to be  frank on  one facet of the judicial process. To quote Richard B Brandt: 106           "Much of  law is  designed to  avoid the necessity      for the  judge to  reach what  Holmes called his ’can’t      helps’, his  ultimate convictions  or values. The force      of precedent,  the close  applicability of statute law,      the separation  of powers, legal presumptions, statutes      of limitations,  rules of  pleading and  evidence,  and      above all  the pragmatic assessments of fact that point      to one result whichever ultimate values be assumed, all      enable the  judge in  most cases  to stop  short  of  a      resort to  his personal  standards.  When  these  prove      unavailing, as  is more likely in the case of courts of      last resort  at the  frontiers of  the  law,  and  most      likely in  a   supreme constitutional  court, the judge      necessarily resorts  to his  own scheme  of values.  It      may, therefore,  be said  that the most important thing      about a judge is his philosophy; and if it be dangerous      for him to have one, it is at all events less dangerous      than the self-deception of having none."    THE CODES, THE CONSTITUTION AND THE  CULTURAL BACKDROP      Primarily we seek guidelines from the two Codes, in the omnipresence   and    omnipotence   of    the   over-arching Constitution. The Indian cultural current also counts and so does our spiritual chemistry, based on divinity in everyone, catalysed by  the Buddha-Gandhi compassion. ’Every saint has a  past  and  every  sinner  a  future’-strikes  a  note  of reformatory potential  even in  the most ghastly crime. This axiom is a vote against ’death’ and hope in ’life’.      Many humane  movements and  sublime souls have cultured

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the higher  consciousness of  mankind, chased  death penalty out of  half  the  globe  and  changed  world  view  on  its morality. We  will, in the culminating part of our judgment, cull great  opinions  to  substantiate  this  assertion  but content here with pointing to their relevance as part of the conspectus.      Criminologists have elaborately argued that ’death’ has decisively lost the battle as the dominant paradigm and even in our Codes has shrunk into a weak exception. Even so, what are these  exceptional cases? Not hunch or happen-stance but compelling grounds,  lest the  ’Chancellor’s foot’  syndrome reappear in different form. So let us examine the grounds in this new sheen.      An easy  confusion is  over-stress on the horror of the crime and  the temporary  terror verging  on insane violence the perpetrator  displays, to  the exclusion  of a  host  of other weighty  factors when  the scales  are  to  settle  in favour of killing by law the killer who resorts to unlaw. 107      Speaking  illustratively  is  shocking  crime,  without more, good  to justify  the lethal verdict? Most murders are horrifying,  and   an  adjective  adds  but  sentiment,  not argument. The  personal story  of an  actor  in  a  shocking murder, if  considered,  may  bring  tears  and  soften  the sentence. He might have been a tortured child, an illtreated orphan, a  jobless starveling,  a badgered  brother, wounded son,  a  tragic  person  hardened  by  societal  cruelty  or vengeful justice, even a Hamlet or Parasurama. He might have been angelic  boy but  thrown into mafia company or inducted into dopes  and drugs by parental neglect or moraly-mentally retarded or disordered. Imagine a harijan village backed out of existence  by the genocidal fury of a kulak group and one survivor, days  later, cutting  to pieces the villain of the earlier outrage.  Is the  court in  error in  reckoning  the prior provocative barbarity as a sentencing factor?      Another  facet.   Maybe,  the   convict’s  poverty  had disabled his  presentation of  the social  milieu  or  other circumstances of  extenuation in  defence. Judges  may be of moods, soft  or severe;  their weaknesses  may be sublimated prejudices;  their   sympathies  may   be  persona    hyper- sensitivity. Did  not Lord  Camden, one  of the greatest and purest of English judges, say           "that the  discretion of  a judge  is the  law  of      tyrants; it  is always  unknown;  it  is  different  in      different  men;   it  is   casual,  and   depends  upon      constitution, temper  and passion.  In the  best it  is      oftentimes caprice;  in the  worst, it  is every  vice,      folly and  passion  to  which  human  nature  can    be      liable." (State v. Cummings 36 Mo.263 278 (1865)?      When life is at stake, can such frolics of fortune play with judicial veriest?      The nature of the crime-too terrible to contemplate-has often been  regarded a  traditional peg  on which  to hang a death penalty. Even Ediga Annamma (supra) has hardened here. But  ’murder   most  foul’   is  not   the  test,   speaking scientifically. The  doer may be a patriot, a revolutionary, a weak  victim of  an overpowering passion who, given better environment, may  be a good citizen, a good administrator, a good husband,  a great  saint .  What was  Valmiki once? And that sublime  spiritual star, Shri Aurobindo, tried once for murder but by history’s fortune acquitted.      If we  go only  by the  nature  of  the  crime  we  get derailed by  subjective  paroxysm.  ’Special  reasons’  must vindicate the sentence and so 108

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must be  related to  why the murderer must be hanged and why life imprisonment  will not  suffice. Decided cases have not adequately   identified    the   manifold    components   of comprehensive sentencing.  Resultantly, what  is regarded as decisive is  only  relevant  and  what  is  equally  telling remains untold.  For reasons  of ’  special’ grimness may be cancelled by juvenile justice. Brutality of the crime may be mollified at  the level  of sentencing justice by background of despair.  Even a  planned barbarity  may be induced by an excessive obsession  by one who could be a good person under other surroundings. Why, the ghastly crime may in rare cases be due to a brain tumour. Myriad factors of varying validity may affect  the death  penalty either way. The criminal will be projected on the scene and examined from different angles since the  punishment  is  on  the  person  though  for  the offence.             CAPITAL PENALTY AND THE CONSTITUTION      In these  pathless woods  we must  seek light  from the Constitution regarding ’special reasons’. After all, no Code can rise higher than the Constitution and the Penal Code can survive only  if it pays homage to the suprema lex. The only correct approach  is to  read into s.302 I.P.C. and s.354(3) Cr.P.C.,  the   human  rights   and  humane  trends  in  the Constitution.  So   examined,  the  right  to  life  and  to fundamental freedoms is deprived when he is hanged to death, his  dignity  is  defiled,  when  his  neck  is  noosed  and strangled. What  does s.302  do  by  death  penalty  to  the sentence? It finally deprives him of his fundamental rights. True,  fundamental  rights  are  not  absolute  and  may  be restricted reasonably,  even prohibited  totally, if  social defence compels  such a  step. Restriction  may expand  into extinction in extreme situations. (see Narendra Kumar)      Punishment by  deprivation of  life or  liberty must be validated by  Arts. 21,  14 and 19-the first guarantees fair procedure, the  second is  based on  reasonableness  of  the deprivation of  freedom  to  live  and  exercise  the  seven liberties and  the last is an assurance of non-arbitrary and civilized punitive  treatment. But  in  the  connotation  of these and  other Articles  of Part  III, the  social justice promise of  Part IV  and the primordial proposition of human dignity set high in the Preamble must play upon the meaning.      Crime and penal policy have to obey the behests set out above and  we may gain constitutional light on the choice of ’life’ or   death’  as appropriate  punishment.  Article  14 surely ensures  that  principled  sentences  of  death,  not arbitrary or  indignant capital  penalty, shall  be imposed. Equal protection emanates from equal principles in 109 exercise of  discretion. In  other words,  the constraint of consistency and the mandate against unreasoning disregard of material circumstances are implicit lest discretion attracts the acrid epigram of judicial caprice.      The dignity  of the  individual shall not be desecrated by infliction   of  atrocious death  sentence merely because there is  a  murder  proved  although  crying  circumstances demand the  lesser penalty. To exemplify, supposing a boy of fifteen incited  by his  elder brothers,  chases with them a murderer of their father and after hours of search confronts the villain  and vivisects  him in blood-thirsty bestiality. Do you  hang the  boy, blind  to his  dignity and tenderness intertwined?      We mean to illustrate the applicability, not to exhaust the variables.  Even here we may make it clear that equality is not to be confounded with flat uniformity.           The element  of  flexibility  and  choice  in  the

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    process  of  adjudicating  is  precisely  what  justice      requires  in   many  cases.  Flexibility  permits  more      compassionate   and   more   sensitive   responses   to      differences which  ought to  count  in  applying  legal      norms, but  which get  buried in the gross and rounded-      off language  of rules  that are  directed at wholesale      problems instead  of particular disputes. Discretion in      this   sense allows  the individualization  of law  and      permits justice  at times  to be  hand-made instead  of      mass-produced.      In   urging   that   discretion   is   the   "effective individualizing agent  of the  law", Dean  Pound pointed out that           In proceedings  for  custody  of  children,  where      compelling  consideration(s)   cannot  be   reduced  to      rules.. determination must be left, to no small extent,      to the  disciplined but  personal feeling  of the judge      for what  justice demands." (22 Syracuse L.R. 635, 636)      (1).      Every variability is not arbitrary. On the contrary, it promotes  rationality   and  humanity.   Article  19   is  a lighthouse with  seven lamps  of liberty  throwing  luminous indications  of  when  and  when  only  the  basic  freedoms enshrined therein can be utterly extinguished. The Judge who sits to  decide between death penalty and life sentence must ask himself:  Is it ’reasonably’ necessary to extinguish his freedom of  speech, of  assembly and  association,  of  free movement, by  putting out finally the very flame of life? It is constitutionally  permissible to  swing a criminal out of corporeal existence only if the 110 security  of   State  and  society,  public  order  and  the interests of  the  general  public  compel  that  course  as provided in  Art. 19(2) to (6). They are the special reasons which s.354(3)  speaks of.  Reasonableness as  envisaged  in Art.19 has  a relative connotation dependent on a variety of variables-cultural, social,  economic and  otherwise. We may give concrete  instances at  a later  stage of this judgment but feel  it necessary to state here that what is reasonable at a  given time  or in a given country or in a situation of crisis may not be the same as on other occasions or in other cultural  climates.   Indeed,  that   is  the  unspoken  but inescapable silent command of our constitutional system.      So, we  search for  guidelines within s.302 I.P.C. read with s.354  Cr. P.C., and find that ordinarily, for murder a life-term is  appropriate save  where ’special  reasons’ are found for  resort to  total extinction of the  right to life and farewell  to fundamental rights. Public order and social security must  demand it. That is to say, the sacrifice of a life is sanctioned only if otherwise public interest, social defence and  public order  would be  smashed  irretrievably. Social justice  is rooted  in spiritual  justice and regards individual dignity  and human divinity with sensitivity. So, such extra-ordinary  grounds alone  constitutionally qualify as ’special  reasons  as leave no option to the court but to execute the  offender if  State and  society are to survive. One stroke   of  murder hardly  qualifies for  this  drastic requirement, however  gruesome the  killing or  pathetic the situation, unless  the inhere  t testimony  oozing from that act is  irresistible that  the  murderous  appetite  of  the convict is  too chronic  and deadly  that ordered  life in a given locality  or society or in prison itself would be gone if this  man were  now or  later to be at large. If he is an irredeemable murderer,  like a bloodthirsty tiger, he has to quit his  terrestrial  tenancy.  Exceptional  circumstances,

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beyond easy visualisation, are needed to fill this bill.      To repeat  for emphasis, death-corporeal death-is adieu to fundamental  rights. Restrictions  on fundamental  rights are permissible if they are reasonable. Such restriction may reach the  extreme state  of extinction  only if  it  is  so compellingly   reasonable   to   prohibit   totally.   While sentencing, you  cannot be arbitrary since what is arbitrary is per se unequal.      As stated  earlier you  cannot be  unusually cruel  for that spells  arbitrariness and  violates Art.14. Douglas, J. made this point clear: (1) 111           "There is  increasing recognition of the fact that      the basic   theme  of equal  protection is  implicit in      "cruel and unusual" punishments. "A penalty .... should      be considered ’unusually’ imposed if it is administered      arbitrarily or discriminatorily."           They  are   pregnant   with   discrimination   and      discrimination is an ingredient not compatible with the      idea of  equal protection  of the laws that is implicit      in the ban on "cruel and unusual" punishments."      In Maneka Gandhi, this Court wrote           We must reiterate here what was pointed out by the      majority in  E.P.Royappa v.  State of  Tamil  Nadu  (2)      namely  that   "from  a  positivistic  point  of  view,      equality  is   antithetic  to  arbitrariness.  In  fact      equality  and  arbitrariness  are  sworn  enemies;  one      belongs to  the rule  of law  in a  republic, while the      other, to the whim and caprice of an absolute monarch."      You  cannot  inflict  degrading  punishment  since  the preamble speaks  of ’dignity  of the individual’. To stone a man to  death is  lynch law which breaches human dignity and is  unreasonable   under  Art.19  and  unusually  cruel  and arbitrary under  Art. 14.  Luckily, our country is free from that barbarity legally.      The searching  question the  Judge must  put to himself is: what  then  is  so  extra-ordinarily  reasonable  as  to validate the wiping out of life itself and with it the great rights which  inhere in  him in  the totally  of facts,  the circle being drawn with ample relevancy.      Social justice, which the Preamble and Part IV (Art.38) hignlight as  paramount in  the governance  of country, also has a  role to  mould  the  sentence.  But  what  is  social justice? Despite  its  shadowy  semantics  we  may  get  its essence once  we grasp   the  Third World setting, the ethos and cultural  heritage and  the national  goal or tryst with destiny.      Balakrishna Iyer, J., in Sridharan Motor Service, Attur v. Industrial Tribunal, Madras and Others(3) observed:           "Concepts of  social justice  have varied with age      and clime.  What would  have appeared to be indubitable      social justice  to a  Norman or  Saxon in  the days  of      William the 112      Conqueror will  not be  recognised as  such in  England      today. What  may apear  to be  incontrovertible  social      justice to  a resident  of Quebec  may wear a different      aspect to a resident of Peking. If it could be possible      for Confusius,  Manu, Hammurabi  and  Solomon  to  meet      together at  a conference  table, I  doubt whether they      would be  able to  evolve agreed  formulae as  to  what      constitutes   social   justice,   which   is   a   very      controversial field....  In countries  with  democratic      forms of  Government public opinion and the law act and      react on each other."

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    We may add that in a developing country, in the area of crime and  punishment, social  justice is  to be  rationally measured by  social defence  and,  geared  to  developmental goals.      Thus, we  are transported  to the  region of  effective social defence  as a  large component  of social justice. If the murderous  operation of  a die-hard criminal jeopardizes social  security  in  a  persistent,  planned  and  perilous fashion, then  his enjoyment  of fundamental  rights may  be rightly annihilated.      When,  then,  does  a  man  hold  out  a  terrible  and continuing threat  to social  security in  the setting  of a developing country?  He does  so if,  by his  action, he not only murders  but by  that offence,  poses a  grave peril to societal survival.  If society  does not survive, individual existence comes  to nought. So, one test for impost of death sentence is  to find  out whether the murderer offers such a traumatic  threat  to  the  survival  of  social  order.  To illustrate, if  an economic offender who intentionally mixes poison in  drugs  professionally  or  willfully  adulterates intoxicating  substances   injuriously,  and   knowingly  or intentionally causes  death for  the sake of private profit, such trader  in  lethal  business  is  a  menace  to  social security and  is, therefore,  a violator  of social  justice whose extinction  becomes necessary  for society’s survival. Supposing a  murderous band  of armed dacoits inteintionally derails  a   train  and  large  number  off  people  die  in consequence, if  the ingredients  of murder  are present and the object  is to  commit robbery  inside  the  train,  they practise social  injustice and  imperil social security to a degree that  death penalty  becomes a necessity if the crime is proved  beyond doubt. There may be marginal exceptions or special extenuations  but none where this kind of dacoity or robbery  coupled   with  murder   becomes  a  contagion  and occupation, and  social security  is so  gravely  imperilled that the fundamental rights of the defendant become a deadly instrument whereby  many are  wiped out  and terror  strikes community  life.   Then  he   ’reasonably’   forefeits   his fundamental rights  and takes  leave of  life under the law. The style of violence and 113 systematic  corruption  and  deliberately  planned  economic offences by      corporate top echelons are often a terrible technology of  knowingly causing  death on  a macro scale to make a  flood of profit. The definition of murder will often apply to them. But because of corporate power such murderous depradations are  not charged.  If prosecuted  and convicted for murder, they may earn the extreme penalty for taking the lives of  innocents deliberately  for astronomical scales of gain.      Likewise, if  a man  is a  murderer,  so  hardened,  so blood-thristy, that  within the prison and without, he makes no bones  about killing  others or  carries on  a prosperous business in cadavers, then he becomes a candidate  for death sentence.  If  psychoanalysts  and  psychiatrists  find  him irredeemable in  the reasonable  run of  time then his being alive will  involve more  lives being lost at his hands. If, however, he  can be  reformed in a few years’ time by proper techniques  of  treatment  imprisonment  for  life  is  good enough. But, on the other hand if he is far too hadened that it has  become his  second nature  to murder, society cannot experiment with  correctional strategy,  for, when  he comes out of  jail, he may kill others. Such an incurable murderer deserves  to  be  executed  under  the  law  as  it  stands. Difficult to  imagine  though,  but  even  the  bizarre  may

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happen. The  social setting, the individual factors and like imponderables still  remain to be spelt out. While the world is spiralling  spiritually towards  a society without State- sanctioned homicide,  a narrow  category may  under  current Indian societal  distortions deserve  death penalty although realistically the  Law is held at bay by corporate criminals killing people  through economic, product, environmental and like crimes.      Death penalty  functionally fails  to operate  in  this area for  reasons not  relevant to  unravel here  but  theta justice often  claims human  lives by hanging sentences by a distorted   vision of  the penological purposes anu results. What we  mean is  that the retention of death sentence in s. 302 is  rigorously restricted  to  these  macro-purposes  of social defence,  state security  and public  order.  But  in practice, purblind   application  of capital  penalty claims victims  who   should  not  be  hanged  at  all.  The  gross misapplication springs  from professional  innocence of  the ideological,  constitutional,  criminological  and  cultural trends in  India and  abroad. Judicial decisions have hardly investigated these  areas, have conjured up grisly images of crime and  criminal, and,  fed  on  discarded  doctrines  of retribution and  deterrence, indulged  in death awards blind to the  socio-spiritual changes  taking place in theoretical foundations of  criminology and  sublime  movements  on  our human 114 planet. The ’robes’ are a repository of many rare  qualities but shall  add  to  its  repertory  latest  developments  in sentencing wisdom.      A  paranoid   preoccupation  with  the  horror  of  the particular crime  oblivious to  other social  and individual aspects is  an error. The fact that a man has been guilty of barbaric killing  hardly means  that his  head  must roll in the  absence  of  proof  of  his  murderous  recidivism,  of incurable criminal  violence, of  a mafia holding society in ransom  and  of  incompatibility  of  peaceful  co-existence between the  man who  did the  murder and  society  and  its members.      We may  constellate some  of the principles. Never hang unless society  or its  members may probably lose more lives by keeping  alive an irredeemable convict. If rehabilitation is possible  by long  treatment in  jail, if  deterrence  is possible by  life-long prison terms, capital sentence may be misapplied. Death  penalty is  constitutionalised by reading into s.  354(3) Cr.  P.C.,  those  ’special  reasons’  which validate the  sentence as  reasonably necessitous  and  non- arbitrary, as just in the special societal circumstances.(1)      Social justice  turns on culture and situation. We must listen, even  as judges  who are  human and  not wholly free from  sublimated   violence,  to  the  words  of  great  men condensed in  the message  to the  Delhi Conference  Against Death Penalty a few months ago. Lok Nayak Jai Prakash Narain said :      To my  mind, it is ultimately a question of respect for life and  human approach  to those who commit grievous hurts to others.  Death sentence  is no  remedy for such crimes. A more humane and constructive remedy is to remove the culprit concerned from  the normal  milieu and treat him as a mental case. I am sure a large proportion of the murderers could be weaned away  from their  path  and  their  mental  condition sufficiently  improved  to  become  useful  citizens.  In  a minority of  cases, this  may not  be possible.  They may be kept   in prison  houses till they die a natural death. This may cast  a heavier economic burden on society than hanging.

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But I  have no  doubt that  a humane  treatment  even  of  a murderer will  enhance man’s  dignity and  make society more human."      (emphasis added)      Andrie  Sakharov,   in  a   message  to  the  Stockholm Conference on  Abolition organised  by Amnesty International last year, did put the point more bluntly: (2) 115           I regard the death penalty as a savage and immoral      institution  which   undermines  the  moral  and  legal      foundations of a society. A State, in the person of its      functionaries, who  like all  people  are  inclined  to      making superficial  conclusions who like all people are      subject  to  influences,  connections,  prejudices  and      egocentric motivations  for their behaviour, takes upon      itself the  right to the most terrible and irreversible      act the deprivation of life. Such a State cannot expect      an improvement  of the moral atmosphere in its country.      I reject  the notion  that the  death penalty  has  any      essential deterrent effect on potential offenders. I am      convinced  that  the  contrary  is  true-that  savagery      begets only  savagery....I am convinced that society as      a whole  and each of its members individually, not just      the  person  who  comes  before  the  courts,  bears  a      responsibility  for  the  occurrence  of  a  crime....I      believe  that   the  death  penalty  has  no  moral  or      practical justification  and represents  a survival  of      barbaric  customs   of   revenge.   Blood-thirsty   and      calculated revenge  with no  temporary insanity  on the      part  of   the  judges,  and  therefore,  shameful  and      disgusting."      (emphasis added)      Tolstoy  wrote   an  article   "I  cannot   be  silent" protesting against death sentence where he said :           "Twelve of those by whose labour we live, the very      men whom  we have  depraved and  are still depraving by      every means  in our  power-from the  poison of vodka to      the terrible  falsehood of  a creed  we impose  on them      with all  our might,  but do  not ourselves believe in-      twelve of  those men strangled with cords by those whom      they feed  and clothe  and house, and who have depraved      and still  continue to  deprave them.  Twelve husbands,      fathers,  and   sons,  from   among  those  upon  whose      kindness, industry,  and  simplicity  alone  rests  the      whole of  Russian life,  are  seized,  imprisoned,  and      shackled. Then  their hands are tied behind their backs      lest they  should seize  the ropes  by which  are to be      hung, and they are led to the gallows."      Victor Hugo’s words are not vapid sentimentalism:           "We shall  look upon crime as a disease. Evil will      be treated in charity instead of anger. The change will      be simple  and sublime.  The cross  shall displace  the      scaffold, 116      Reason is  on our  side, feeling  is on  our side,  and      experience is on our side."      Gandhiji wrote:           "Destruction  of   individuals  can   never  be  a      virtuous act.  The evil-doers  cannot be done to death.      Today there  is a  movement afoot  for the abolition of      capital punishment  and  attempts  are  being  made  to      convert prisons  into hospitals  as if they are persons      suffering from a disease."      Quotations from  noble minds are not for decoration but for  adaptation  within  the  framework  of  the  law.  This

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Gandhian  concept  was  put  to  the  test  without  effects calamitous in the Chambal dacoits’ cases :           "Take the  classic example  of  the  blood-thirsty      dacoits of  Chambal. The  so-called dacoits, in reality      the Thakurs  of Delhi  in the 12th century, were driven      to the  desolate Chambal  Valley.  They  had  no  other      recourse except  to steal and, if necessary, murder for      their survival.  The 800  years injustice they suffered      can be  remedied only  by their  economic emancipation.      Remember, no  one is born a criminal. Sarvodaya leaders      Jayaprakash Narain  and Vinoba  Bhave won  over dacoits      with  love,   affection  and  understanding-  something      sophisticated, automatic weapons failed to do."      We have,  unfortunately  no  follow-up  study  of  this experiment.      Coming down  to unhappy  pragmatism, death  penalty  is permissible  only  where  reformation  within  a  reasonable range, is  impossible. The confusion is simple but die-hard. We  lawfully   murder  the  murderer,  not  the  murder,  by infliction of  capital sentence.  for  which  the  strictest justification is  needed if  human  ignity  assured  by  the Constitution  is  not  to  be  judicially  dismissed  as  an expandable luxury.      The deduction  is  inevitable  that  simply  because  a murder is brutal, lex talionis must not take over nor humane justice flee. This proposition is tested in a crisis and the court’s responsibility  is heavy  to satisfy itself that the nature of  the crime is considered, not for its barbarity as such but  for its  internal evidence  of  incurably  violent depravity. We  have  dealt  with  this  aspect  earlier  but repeat, since it is horrendous or many lives have been lost. Our culture  is at  stake, our  Karuna  is  threatened,  our Constitution  is   brought  into   contempt  by  a  cavalier indifference  to   the  deep   reverence  for   life  and  a superstitious offering  of human sacrifice to propitiate the Goddess of Justice. 117      These  illustrations   show   that   angry   or   scary irrationality has  no   place  in  awarding  death  sentence because ’reasonableness’  and fairness are the touchstone of the constitutionality of capital penalty. Thus, we hold that only in these very limited circumstances can the court award the extreme  penalty. The  terrible  nature  of  the  murder should  not   frenzy  the  court  into  necessary  ’capital’ penalty, for  its pertinence  is only to the extent it helps to decide  whether the  prisoner, if  released after  a  few years  in  a  penitentiary,  will  reasonably  be  prone  to continued killing.  If life-long  imprisonment will  prevent further killing,  he may be allowed to live with the limited fundamental rights allowed in a prison setting.      Even in  extreme cases,  one  has  to  judge  carefully whether the  social  circumstances,  personal  remorse,  the excruciation of  long pendency  of the  death sentence, with the prisoner  languishing in  nearsolitary suffering all the time, are  not adequate  infliction, so  as to  make capital sentence too  cruel  and  arbitrary  and  agonising  not  to violate Art.  14. Our  penal pharmacopoeia  must provide for the extreme  remedy of  extinction of  the whole personality only in  socially critical  situations. This  is  spiritual- social justice.      Sometimes the thought is expressed that the life of the victim, the  misery of his family and the great pain cruelly caused, are  forgotton by  those who  advocate mercy for the brutal culprit.  This is  a fallacy fraught with miscarriage of justice.  Punishment is  not compensation like the ’blood

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money’ of Islamic law. It is not lex talionis of retributive genre. To  be strictly compensatory or retributive, the same type of  cruel  killing  must  be  imposed  on  the  killer. Secondly, can the hanging of the murderer bring the murdered back to  life ? ’The dull cold ear of death’ cannot hear the cries or see the tears of the dying convict. There is a good case for huge fines along with life-terms in sentences where the sum is realisable and payable to the bereaved.      The  Indian  Penal  Code  fabricated  in  the  imperial foundry well  over a  century ago  has not received anything but cursory  parliamentary attention  in the  light  of  the higher values  of the  National Charter which is a testament of social  justice. Our  Constitution respects  the  dignity and,  therefore,   the  divinity   of  the   individual  and preservation of  life, of everyone’s life. So the Court must permeate the Penal Code with exalted and expanded meaning to keep pace  with constitutional  values  and  the  increasing enlightenment  of  informed  public  opinion.  A  nineteenth century text,  when applied to twentieth century conditions, cannot be  construed by  signals from  the grave.  So, while courts cannot  innovate beyond  the law,  the law  cannot be viewed as cavemen’s pieces. The penological winds of change, reflected in 118 juristic debates,  bills for  abolition of  death penalty in Parliament  and   the  increasing   use  of   clemency   and commutation by the highest Executive, must affect the living law of statutory application.      There is  yet another  consideration  of  grave  moment which must,  weigh with  the court, vowed to uphold Justice- Social, Economic  and Political.  Who, by and large, are the men whom  the gallows  swallow ?  The white-collar criminals and  the  corporate  criminals  whose  wilful  economic  and environmental  crimes   inflict  mass  deaths  or  who  hire assassins and  murder by remote control ? Rarely. With a few exceptions,  they   hardly  fear  the  halter.  The  feuding villager, heady  with country  liquor, the  striking workers desperate  with   defeat,  the   political   dissenter   and sacrificing liberator  intent on  changing the  social order from satanic  misrule, the waifs and strays whom society has hardened  by   neglect  into  street  toughs,  or  the  poor householder-husband or  wife driven  by  dire  necessity  or burst of  tantrums-it is this person who is the morning meal of the macabre executioner.      Justice  Douglas,  in  a  famous  death  penalty  case, observed:           Former Attorney  Ramsey Clark has said: ’It is the      poor, the  sick, the  ignorant, the  powerless and  the      hated who are executed."           "A characteristic  of village  murderers in India:      over 60  per cent  of them  have  lost  their  parents,      either one  or both,  at the  time of commission of the      crime. Inadequate  parental protection  is thus  one of      the primary  factors in  the upbringing  of a murderer.      The very  existence of parents helps the healthy growth      of the offspring and prevents the children from falling      into the whirlpool of crime." Comments the  Editor, the  Illustrated Weekly of India dated August 29, 1976.      Historically speaking,  capital sentence  perhaps has a class bias  and colour  bar, even  as criminal  law barks at both but  bites the proletariat to defend the proprietariat, a  reason   which,  incidentally,   explains  why  corporate criminals including top executives who, by subtle processes, account for  slow or  sudden killing  of  large  members  by

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adulteration,  smuggling,  cornering,  pollution  and  other invisible operations,  are not  on the wanted list and their offending operations   which  directly  derive  profit  from mafia and  white-collar crimes  are not  visited with  death penalty, while  relatively  lesser  delinquencies  have,  in statutory  and   forensic  rhetoric,  deserved  the  extreme penalty. Penal 119 law is  not what  the printed  text professes  but what  the prison cell and   the condemned man testify.      Courts take  a close-up  of the immediate circumstances not the  milieu which  made the  murderer nor  the  environs which make  him man  again. In  equal justice under the law, this imbalance of s. 302 I.P.C., in action cannot be missed.      The tradition-bound  agencies of  justicing cocooned by judicial   precedents   reflecting   by-gone   values   make sentencing processes  ’soft’ where they should be severe and tainted with  torture where  a healing  touch comports  with culture. Indeed,  the habitual cerebrations of both wings of the profession  have been  guiltless of the great experiment of injecting  the humanism  of the  National Charter through the interpretative  art  into  criminal  statistics.  Social justice on  the one  hand, means  social defence from white- collar and  kindred criminals  not  through  procrastinating illusions of  punishment but  instant  deterrents  to  anti- social  delinquents  and,  on  the  other,  Prison  Justice, Reforms of  offenders, non-institutional  strategies through community  participation   in  correction  and,  above  all, sentencing essays  which ensure  dignity of  the  individual human decencies  and uplifting  projects which  re-make  the criminal into  a good  citizen. Several of our prison houses and practices make us wonder about institutional criminality and ’punishment’  becoming a  brand of  crime and,  worse, a manufacturing  process   of  dehumanized  criminals.  Prison Reform is  on the  national agenda.  Sentencing Reform  soon deserves to be added.      An Indo-Anglian  appreciation  of  British  Justice  is sometimes relied  on  subconsciously,  strengthened  by  the ambiguous Report  of the Royal Commission on Capital Penalty to substantiate  the retentionist  theory. But  it is  note- worthy that  Sir Samuel  Romilly,  critical  of  the  brutal penalties in  the then  Britain, said  in 1817: ’The Laws of England  are  written  in  blood’.  Alfieri  has  suggested: ’Society prepares  the crime,  the criminal  commits it. ’We may permit  ourselves the  liberty to  quote from  Judge Sir Jeoffrey Streatfield:  ’If you are going to have anything to do with the criminal courts, you should see for yourself the conditions under which prisoners serve their sentence.’           "It would  be extremely  gratifying  to  scan  the      pages of  British legal  and social history and to find      that the  members of  the judiciary  were invariably in      the fore-front  of the  movement towards enlightenment,      progress  and   humanity.  Unfortunately   until   very      recently, this  has never  been the  case; in  fact, it      would be  fair to  say the  judges  have  usually  been      amongst the principal opponents of penal reform. It may      be 120      that they  were too  far divided  from the  rest of the      populace in  the remoteness  of their  dignity, and too      far removed  in their standards of physical comfort and      intellectual elegance.  Perhaps if a number of them had      personally investigated  the pitiable  squalor  of  the      prisons, the depravity of the haulks,   and the bestial      cruelties on  the scaffold,  some at  least might  have

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    been shocked  into a  public condemnation of the entire      penal system.  But, as it was, they preferred to remain      either ignorant  of or  acquiescent to the aftermath of      their judgments  and of  all the  ensuing horrors which      were being carried out in the name of the law.’’(1) British Justice  has abandoned  death penalty for murder for two decades  now (Homicide  Act, 1957) without escalation of murderous crime. Attempts to get round the Murder (Abolition of Death Penalty) Act, 1965 have failed in Parliament and as Barbara Wooton says, ’Capital punishment thus appeared to be itself sentenced  to death’  for murder.  To quote the Royal Commission’s recommendation  for retention  after Parliament has abolished  death penalty is only of historical interest: "After the  Abolition Act  had been  in force for over seven years,  the   Criminal  Law  Revision  Committee  considered whether any  further changes  in the penalty for murder were desirable. Their conclusions were almost entirely negative."      This perspective  justifies  judicial  evolution  of  a humane penal  doctrine because  the legislative  text is not static; and  as Chief Justice Warren wrote in Trop v. Dulles the court ’must draw its meaning from the evolving standards of a  maturing society’.  The great answer to grave crime is culturing of  higher consciousness, removing the pressure of a perverted social order, and nourishing the inner awareness of man’s  true nature.  This is true penal reform, including jail reform.      A difficult  category which  defies easy solution, even in  the  developmental-social  justice  background,  is  the political or  ideological murderer.  Where freedom  of faith and conscience  is affirmed,  as in  our Constitution, where concentration of  wealth and  ethnic and  social suppression are anathema  and egalitarian-cum-distributive  justice  are positive goals,  ’criminals’ motivated  by  the  fundamental creed of  our Constitution may well plead for the benefit of life imprisonment.  Count Leo  Tolstoy in  his Recollections and   Essays    denounces   death   penalty   even   against revolutionaries by arguments too Gandhian to be dismissed by Indian judges in the sentencing sector of discretion. We 121 do not  dogmatise but suggest the trend. Law by itself is no answer to  Justice as  the sublime  instances  of  Socrates, Jesus are martyrs galore in the long story of Man point.      We do  not underrate  the importance  of strong  public denunciation  of   serious  crimes  like  murder  and  heavy punishment for  it. The critical question is whether capital sentence or  incarceration for  life in  a hospital setting- both stern,  but the former a final farewell to life itself, the latter a protracted living ordeal-which of the two harsh alternatives should be inflicted.      Criminologists have  reached near-consensus  that death penalty for  murder is  judicial futility as a deterrent and is a  vulgar barbarity,  if fruitless.  And  Reformationists have made headway so much that about 80 countries have given up capital  sentence. England had 200 offences which carried death sentences  and publicly  hanged  boys  and  girls  for stealing spoons  and  the  like.  Stealing  persists,  death penalty has disappeared. The importance of death sentence as a deterrent  is brought  out with  characteristic wit by Dr. Johnson, who  according to Boswell, noted pickpockets plying their trade  in a crowd assembled to see one of their number executed. There  is no moral defence against the application of  Justitia   dulcore  misericordiac   temperate   (Justice tempered by  mercy, literally  by sweetness  of  compassion) even in the name of deterrence.                     CONDENSED GUIDELINES

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    We may  summarise our  conclusions to facilitate easier application and to inject scientific formulation.      1. The criminal law of the Raj vintage has lost some of its vitality,  notwithstanding  its  formal  persistence  in print in  the  Penal  Code  so  far  as  s.  302  I.P.C.  is concerned. In  the post-Constitution  period s.  302 I.P.C., and s.  345(3) of  the Code of Criminal Procedure have to be read in  the humane  light of  Parts  III  and  IV,  further illumined by  the Preamble  to the  Constitution.  In  Sunil Batra a Constitution Bench of this Court has observed:           "Consciously and  deliberately we  must focus  our      attention,  while   examining  the  challenge,  to  one      fundamental fact  that we  are required  to examine the      validity of  a pre-constitution  statute in the context      of the  modern reformist  theory  of  punishment,  jail      being treated as a correctional institution" "Cases are      not unknown  where merely on account of a long lapse of      time the Courts have commuted the sentence of 122      death to  one of  life imprisonment  on the sole ground      that the  prisoner was  for a  long time hovering under      the formenting effect of the shadow of death."      "The scheme  of the  Code, read  in the  light  of  the      Constitution,   leaves   no   room   for   doubt   that      reformation, not  retribution, is  the sentencing lode-      star."      (emphasis added)      2. The  retributive theory  has had  its day  and is no longer valid.  Deterrence and  reformation are  the  primary social goals  which make  deprivation of  life  and  liberty reasonable as penal panacea.      3. The current ethos, with its strong emphasis on human rights and  against death penalty, together with the ancient strains of culture spanning the period from Buddha to Gandhi must ethically inform the concept of social justice which is a  paramount   principle  and   cultural  paradigm   of  our Constitution.      4.  The  personal  and  social,  the  motivational  and physical circumstances, of the criminal are relevant factors in adjudging  the penalty  as clearly provided for under the new Code  of 1973.  So also  the intense  suffering  already endured by prison torture or agonising death penalty hanging over head consequent on the legal process.      5. Although  the somewhat  absolescent M’Naughten Rules codified in  s. 84  of the  Penal Code alone are exculpatory mental imbalances, neurotic upsets and psychic crises may be extenuatory and  the sense  of diminished responsibility may manifest  itself  in  judicial  clemency  of  commuted  life incarceration.      6. Social  justice, projected  by Art.  38, colours the concept of  reasonableness in  Art. 19 and non-arbitrariness in Art. 14. This complex of articles validates death penalty in a limited class of cases as explained above. Maybe, train dacoity  and   bank  robbery   bandits,  reaching   menacing proportions,  economic   offenders  profit-killing   in   an intentional and  organised way,  are such  categories  in  a Third World setting.      Apart from  various considerations which may weigh with the Court,  one consideration which may be relevant in given circumstances, is  the planned  motivation that  goaded  the accused to  commit the  crime. Largely  in  India  death  is caused  not  by  a  cool,  calculated,  professionally  cold blooded planning  but something that happened on the spur of the moment.  In fact in faction-ridden society factions come to grip  on a  minor  provocation  and  a  gruesome  tragedy

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occurs. 123      But with  the development  of  the  complex  industrial society there  has come  into existence a class of murderers who indulge  in a  nefarious activity  solely for  personal, monetary or  property gain.  These white collar criminals in appropriate cases  do deserve  capital punishment as the law now stands,  both as  deterrent and  as putting an end to an active mind  indulging in incurably nefarious activities. It is such  characteristics that  determine more  or  less  the gravity and  the character  of the  offence and offender. We may venture  that sometimes there is big money in the subtle "murder"  business   disguised  as   economic  offences   or industrial clashes;  and there  social  justice  in  certain circumstances punctures  ’soft’ justice  and opts for lethal sentence. Where  intractable mafia  shows  up  in  murderous profusion, the  sentence of  death must, reluctantly though, defend society.      7. The survival of an orderly society without which the extinction of  human rights  is a  probability  compels  the higher protection  of the  law to  those  officers  who  are charged with  the fearless  and risky discharge of hazardous duties in  strategic situations. Those officers of law, like policemen on  duty or  soldiers and the like have to perform their functions  even in  the face  of  threat  of  violence sometimes in  conditions of  great  handicap.  If  they  are killed by  designers of  murder and the law does not express its strong  condemnation in extreme penalisation, justice to those called  upon to defend justice may fail. This facet of social justice  also may  in certain  circumstances  and  at certain stages of societal life demand death sentence.      8. When  an environmental  technologist, food  and drug chemist or  engine manufacturer  intentionally acts  in  the process,  abetted   by  the   top  decision-makers   in  the corporation concerned, in such manner that the consumer will in all  probability die  but is  kept wilfully  in the  dark about the  deadly consequence by glittering advertisement or suppressio veri,  he deserves  dealth penalty  for society’s survival, if he fulfils the elements of murder. Maybe, a re- definition of  murder may  be  needed  to  make  this  legal mandate viable.  Parliamentarians and judicial personnel may benefit by  the observations made by Ralph Nader on American Law-in-action.           "In no  clearer fashion  has the  corporation held      the law  at bay  than in  the latter’s paralysis toward      the  corporate  crime  wave.  Crime  statistics  almost      wholly ignore  corporate or  business crime;  there  is      list of  the ten  most  wanted  corporations;  the  law      affords no means of regularly collecting 124      data on  corporate crime;  and much  corporate criminal      behaviour (such as pollution) has not been made a crime      because of  corporate opposition.  For example,  wilful      and knowing  violations of  auto, tire,  radiation, and      gas  pipe-line  safety  standards  are  not  considered      crimes under  the relevant  statutes even  if lives are      lost as  a result.  The  description  of  an  array  of      corporate crimes  in this  forthright  book  reveals  a      legal process  requiring courage,  not routine duty, by      officials to  enforce the  laws against  such outrages.      The law is much more comfortable sentencing a telephone      coin box thief to five years than sentencing a billion-      dollar price-fixing  executive to six weeks in jail. In      one recounting  after another,  the authors pile up the      evidence toward  one searing  conclusion-that corporate

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    economic, product, and environmental crimes dwarf other      crimes in  damage to  health, safety  and property,  in      confiscation or  theft of other people’s monies, and in      control of the agencies which are supposed to stop this      crime and  fraud. And it all goes on year after year by      blue-chip corporate recidivists.           Why ?  It is  easy to  answer-"power." But that is      the beginning, not the end, of understanding."      9.  ’Special  reasons’  necessary  for  imposing  death penalty must  relate, not  to the  crime as  such but to the criminal. The crime may be shocking and yet the criminal may not deserve  death penalty.  The crime  may be less shocking than other  murders and  yet the  callous criminal,  e.g.  a lethal  economic  offender,  may  be  jeopardizing  societal existence  by  his  act  of  murder.  Likewise,  a  hardened murderer or  dacoit or  armed robber  who kills and relishes killing, the  raping and murdering to such an extent that he is  beyond   rehabilitation  within   a  reasonable   period according to  current psycho-therapy  or curative techniques may deserve  the  terminal  sentence.  Society  survives  by security for  ordinary life.  If officers enjoined to defend the   peace   are   treacherously   killed   to   facilitate perpetuation of murderous and often plunderous crimes social justice steps  in to  demand death  penalty dependent on the totality of circumstances.      10. We must always have the brooding thought that there is  a  divinity  in  every  man  and  that  none  is  beyond redemption. But  death penalty,  still on  our Code,  is the last step  in a  narrow category  where, within a reasonable spell, the  murderer is  not likely to be cured and tends to murder others,  even within  the prison  or  immediately  on release, if left alive-a king cobra which, by chronic habit, knows only 125 to sting  to death unless defanged if possible. The patience of society  must be  tempered  by  the  prudence  of  social security  and   that  is   the  limited   justification  for deprivation of  fundamental rights  by extinguishment of the whole human  being. The  extreme penalty can be invoked only in extreme situations.      The criminology  of higher consciousness claims that by expanding inner  awareness through  meditational  and  yogic techniques the  worst offender  can be  reformed, if prisons can  function   more  fulfillingly   and  less  fatuously  a consummation devoutly  to be wished ! Murderers are not born but made and often can be unmade.      This claim,  if experimented  with and  found credible, goes a  long way to remove from the scales of justice stains of  human   blood.  When  this  healing  hope  is  developed adequately, may  be the penal pharmacopoeia may remove death sentence from the system. The journey is long and we are far from home. Currently, our prisons often practice zoological, not humanising  strategies, as  some competent  reports  and writings tend to prove.      What we  have laid down is not in supersession of those extenuating situations  already considered  by this Court as sufficient to commute death sentence but is supplementary to them and  seeks to  streamline,  so  that  erratic  judicial responses may be avoided.      In Ediga  Annamma(supra), for  instance, this Court has held, and while endorsing, we repeat it for emphasis:           "Where the  murderer is  too young or too old, the      clemency of  penal justice help him. Where the offender      suffers   from   socio-economic,   psychic   or   penal      compulsions insufficient  to attract  a legal exception

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    or to  downgrade the  crime into a lesser one, judicial      commutation  is   permissible.  Other   general  social      pressures,  warranting   judicial   notice,   with   an      extenuating impact  may, in  special cases,  induce the      lesser penalty.  Extraordinary features in the judicial      process, such  as that the death sentence has hung over      the  head  of  the  culprit  excruciatingly  long,  may      persuade the  Court to  be compassionate.  Likewise, if      others involved  in the  crime and  similarly  situated      have received  the benefit  of life  imprisonment or if      the offence  is only  constructive, being  under s. 302      read with  s. 149,  or  again  the  accused  had  acted      suddenly  under  another’s  instigation,  without  pre-      meditation, perhaps  the Court  may  humanely  opt  for      life, even like where a just cause or real suspicion of      wifely indefility  pushed the  criminal into the crime.      On the other hand, the weapons used and 126      the manner of their use, the horrendous features of the      crime and  hapless, helpless  state of  the victim, and      the like,  steel the  heart of  the law  for a  sterner      sentence."      In Srirangan v. State of Tamil Nadu the Court set aside a death sentence even though three had been killed. That was a case  of three innocent lives put down without provocation and although  the courts  below had  concurrently  inflicted death sentence,  a Bench of three judges confining the focus on sentence  alone commuted the punishment. The crucial role of young  age (in  his  twenties)  and  a  trace  of  mental imbalance in  robbing the  propriety of  a death impost even from such  a ghastly  case of  tripe murder  was emphasised. This Court’s  observations  on  the  sensitive  attitude  to sentencing and the wide spectrums of considerations under s. 354(3) Cr. P.C. are helpful here:           "The plurality of factors bearing on the crime and      the doer of the crime must carefully enter the judicial      verdict.    The    winds    of    penological    reform      notwithstanding, the  prescription in s. 302 binds, the      death penalty  is still  permissible  in  the  punitive      pharmacopoeia  of   India.  Even  so,  the  current  of      precedents and  the relevant  catena of  clement facts,      personal, social  and other,  persuade us  to hold that      even as  in Nanu  Ram v.  State of  Assam (AIR  1975 SC      762), the lesser penalty of life imprisonment will be a      more appropriate punishment here." A brief word about Lalla Singh. That was a case of murder of three persons  and the  head of one of the deceased, a lady, was severed.  The trial judge awarded the extreme penalty to him who  did this  gruesome deed.  But the court reduced the sentence to life term grounded on the long and agonising gap between the  date of offence and the disposal of the case by the Supreme Court:           "While we  are unable  to  say  that  the  learned      Sessions Judge  was in  error in  imposing the  extreme      penalty, we  feel that  as the offence was committed on      18-6-1971 more  than six years ago, the ends of justice      do not  require that  we should confirm the sentence of      death passed on the first respondent." 127      We have  read the  penal Code  (s. 302) in harmony with the Procedure  Code (s.  354(3)) and tuned up both the Codes to receive  the command  of the  Constitution. ’Too kind for too long to criminals’ is a cynical comment which comes with a call  for revival  of more hangings as a gut reaction to a horrible crime,  forgetting that  crimelessness  comes  only

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from higher  consciousness. And,  in a  democracy,  if  such offences escalate  beyond endurance and such cries rise from all over,  penal policy  may change,  whether the judges and jurists and  moralists and  murderers relish it or not. Even so, the  basic humanity  of mankind cannot be surrendered to panicky calls  and passionate  reactions provoked  by  stray though shocking, events.      Two significant developments need to be stressed before we  conclude  the  general  discussion.  The  first  is  the functional failure, at the forensic level, of the meaningful provision in  the Procedure  Code, 1973 intended to help the court to  individualise sentencing  justice to fit the crime and the criminal.      The sentence  of death  can be  imposed by the Sessions Judge and  it can  only be executed after it is confirmed by the High  Court as  provided in  Chapter XXVIII of the Code. The procedure  prescribed for the trial of sessions cases is contained in  Chapter XVIII.  Section 235  which is relevant for this purpose reads as under:-           "235(1) After  hearing  arguments  and  points  of      law(if any),  the Judge  shall give  a judgment  in the      case.           (2) If  the accused is convicted, the Judge shall,      unless he proceeds in accordance with the provisions of      section 360,  hear  the  accused  on  the  question  of      sentence, and  then pass  sentence on  him according to      law."      A specific  stage is  prescribed in  the trial of cases tried by the Sessions Court in accordance with the procedure prescribed in  Chapter XVIII. After the prosecution evidence is complete  and the  accused is  called upon  to enter  the defence and  if evidence  is led on behalf of defence, after the defence  evidence is  complete, the  Court  should  hear arguments of  the Prosecutor  and the  advocate on behalf of the accused  (see s.  234). Thereafter  comes s.  235  which obligates the  Court to  give a  judgment. The  question  of sentence does not enter the verdict or consideration at this stage. If  the accused  is to  be acquitted, the matter ends there. If  the Court, upon consideration of the evidence led before it,  holds the  accused guilty of any offence it must pronounce judgment  to the  extent  that  it  holds  accused guilty of a certain offence. 128      Thereafter a  statutory duty  is cast upon the Court to hear the  accused on  the question  of sentence.  Sub-s. (2) obligates the  Court to  hear the accused on the question of sentence. In  fact, this  provision should  be construed  to mean that  where the  Court has  to choose  one or the other sentence  and  if  with  a  view  to  inflicting  a  certain sentence, special  reasons  are  required  to  be  recorded, obviously the  State which is the prosecutor, must be called upon to  state to  the Court which sentence as prosecutor it would consider appropriate in the facts and circumstances of the case.      Where the  accused is convicted for an offence under s. 302,  I.P.C.,   the  Court   should  call  upon  the  Public Prosecutor at  the stage  of s. 235(2) to state to the Court whether the  case is  one where  the accused  as a matter of justice should  be awarded the extreme penalty of law or the lesser sentence  of imprisonment  for life.  If  the  Public Prosecutor informs the Court that the State as Prosecutor is of the  opinion that  the case  is  not  one  where  extreme penalty is  called for and if the Sessions Judge agrees with the submission, the matter should end there.      If on  the other hand the Public Prosecutor states that

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the case  calls for  extreme penalty  prescribed by law, the Court  would  be  well  advised  to  call  upon  the  Public Prosecutor to  state and establish, if necessary, by leading evidence, facts  for seeking  extreme penalty  prescribed by law. Those reasons and the evidence in support of them would provide the  special reasons  according to  the State  which impel capital punishment. It would be open to the accused to rebut this  evidence either by submissions or if need be, by leading evidence.  At  that  stage  the  only  consideration relevant for  the purpose  of  determining  the  quantum  of punishment  would   be  the  consideration  bearing  on  the question of  sentence alone  and not  on the validity of the verdict of  guilty. After  considering the  submissions  and evidence  it  would  be  for  the  Court  with  its  extreme judicious approach and bearing in mind the question that the extreme penalty  is more  an exception,  to  determine  what would be  the appropriate  sentence.  This  would  ensure  a proper  appreciation   of  vital   considerations   entering judicial verdict for determining the quantum of sentence.      We hope  the Bar  will assist  the Bench in fully using the resources  of the new provision to ensure socio-personal justice,  instead   of  ritualising   the   submissions   on sentencing by  reference only to materials brought on record for proof or disproof of guilt.      The second major development is the amendment of s. 302 IPC moved  by Government  and already  passed by  the  Rajya Sabha doing 129      away with  death penalty for murder save in exceptional categories. So  far as  it goes, the benignity of the change reflects the  constitutional culture  we have explained. The discretion still  left, in  our view,  must be guided by the mariner’s compass we have supplied in this Judgment.                  THE FACTS AND CONCLUSIONS      Having stated the law at length, we have to apply it to the facts  of the  cases, which  we proceed  to state. After all, "Let  the facts  be known as they are, and the law will sprout from  the seed  and turn  its  branches  towards  the light".  We   may  now   state  the  facts  needed  for  the application of the principles set out above.                    RAJENDRA PRASAD’S CASE      A long-standing family feud, with years-long roots, let to a  tragic murder. The houses of Ram Bharosey and Pyarelal had fallen  out  and  periodic  fuelling  of  the  feud  was furnished by  the kidnapping  of a  wife, the  stabbing of a brother and  the like. Lok Adalats of village elders brought about truce,  not peace.  The next  flare-up was a murder by the appellant,  a rash  son of  one of  the  feuding  elders Pyarelal. He was sentenced to life imprisonment (which means no reformation  but hardening  process, since  our jails are innocent of  carefully designed  programme of  re-humanizing but have  an iatrogenic,  inherited drill of de-humanising). The young  man, after  some  years  served  in  prison,  was released  on  Gandhi  Jayanti  Day.  But  Gandhian  hospital setting was,  perhaps, absent  in the  prison which,  in all probability, was untouched by reformation of diseased minds, the fundamental Gandhian thought. The result was the release kept  alive  his  vendetta  on  return,  aggravated  by  the ’zoological’ life  inside. Some  minor incident  ignited his latent feud  and he  stabbed Ram  Bharosey  and  his  friend Mansukh  several   times,  and  the  latter  succumbed.  The ’desperate character’  once sentenced,  deserved death  this second time,  said the  Sessions Court  and the  High  Court confirmed the view.      An application of the canons we have laid down directly

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arises. There  is the common confusion here. A second murder is not  to be  confounded with  the persistent potential for murderous attacks  by the murderer. This was not a menace to the social  order but  a specific  family feud.  While every crime is  a breach  of social  peace, the assailant is bound over only if he is a public menace. Likewise, here was not a youth of  uncontrollable violent  propensities  against  the com- 130 munity but  one whose  paranoid preoccupation  with a family quarrel goaded  him to  go at  the rival. The distinction is fine but  real. How  do we designate him ’desperate’ without blaming the  jail which  did little to make a man out of the criminal clay  ? So long as therapeutic processes are absent from prisons, these institutions, far from being the healing hope of  society, prove hardening schools to train desperate criminals. The  pitiless verse  of Oscal  Wilde is pitifully true even today:           "The vilest deeds, like poison weeds,           Bloom well in prison air;           It is only what is good in Man           That wastes and withers there" "Desperate criminal"  is a convenient description to brand a person. Seldom  is the  other side  of the  story exposed to judicial view-the  failure of  penal  institutions  to  cure criminality and  their success  in breaking  the  spirit  or embittering it.      Prasad’s prison  term never  ’cured’ him.  Who bothered about cure  ? The  blame for  the second murder is partly on this neglect.      Nothing on  record suggests  that Rajendra  Prasad  was beyond redemption;  nothing on  record  hints  at  any  such attempt inside  the prison  Lock-up of  a criminal  for long years behind  stone walls  and iron  bars,  with  drills  of breaking the  morale, will  not change  the prisoner for the better Recidivism  is an  index of  prison failure,  in most cases. Any  way, Rajendra showed no incurable disposition to violent outbursts  against his fellow-men. We see no special reason, to  hang him  out of  corporeal existence. But while awarding him  life imprisonment  instead, we  direct for him mental-moral  healing   courses   through   suitable   work, acceptable meditational techniques and psychotherapic drills to regain  his humanity  and dignity.  Prisons are not human warehouses but humane retrieval homes.      Even going  by precedents like Lalla Singh (supra) this convict has  had the  hanging agony  hanging over  his  head since 1973,  with nearsolitary confinement to boot. He must, by now,  be more  a vegetable  than a  person and  hanging a vegetable is not death penalty. This is an additional ground for our reduction.                     THE KUNJUKUNJU CASE      The next  case is  no different  in the result but very different on  the facts.  The  scenario  is  the  usual  sex triangle, terribly perverted. One 131 randy Janardanan-the appellant-with a wife and two children, developed sex relations with a fresh girl and the inevitable social resistance  to this  betrayal of marital fidelity led to a  barbaric short-cut  by this  in criminal of cutting to death the  innocent wife  and the  immaculate  kids  in  the secrecy of  night. To  borrow the  vivid words of the courts below, ’deliberate’, ’cold-blooded’ was the act, attended as it  was   with  ’considerable  brutality’.  This  ruled  out mitigation and supplied ’special reasons’, according to both the courts  below, for  the awesome  award of death penalty.

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Was that  right ? If the crime alone was the criterion, yes; but if the criminal was the target, no.      The brucial  question is  whether  the  crime  and  its horrendous  character   except  to  the  extent  it  reveals irreparable depravity  and chronic  propensity is  relevant. The innocent  three will  not be  happy because  one  guilty companion is  also added  to their  number. Is  Janardanan a social  security   risk,  altogether   beyond   salvage   by therapeutic life  sentence ? If he is, the pall must fall on his cadayer.  If not,  life must  burn  on.  So  viewed,  no material, save  juridical wrath and grief, is discernible to invoke social  justice and  revoke his  fundamental right to life. A  course of  anti-aphrodisiac  treatment  or  willing castration is a better recipe for this hypersexed human than outright death  sentence. We  have not  even information  on whether he  was a  desperate hedonist or any rapist with ’Y’ chromosomes in  excess, who  sipped every flower and changed every hour,  so as  to be  a sex  menace  to  the  locality. Sentencing is a delicate process, not a bling man’s buff. We commute the death sentence to life imprisonment.                        THE DUBEY CASE      There were  three accused  to begin with. The appellant was convicted of the murder of three relatives and sentenced to death.  The other  two were  held guilty, by the Sessions Judge of  an offence  of s.  302 read  with s. 34 I.P.C. and awarded life  imprisonment. The  appeal of  the  latter  was allowed and  that of  the former dismissed both on crime and punishment. The learned Judges expressed themselves thus:           "Considering that  Sheo Shankar,  appellant caused      the death  of three  persons so closely related to him,      by stabbing  each of  them in  the chest  one after the      other, and that too on no greater provocation than that      there had  been an exchange of abuses, I do not see how      it can  be said that sentence of death errs on the side      of severity.  It was urged that this appellant was only      17, 18 years old and so in view of 132      the ruling of the Supreme Court in Harnam v. State (AIR      1976 SC  2071), he should not be sentenced to death. In      the first  place, the note of learned Sessions Judge on      his statement shows that he was 19, 20 years old and he      had understated  his age.  Secondly, I  doubt that  the      observation of  the Supreme  Court in the said case can      be applicable  to such  a case  of triple murder, where      such victim is deliberately stabbed in the chest." The whole  reasoning crumbles on a gentle probe. A thumbnail sketch of the case is that the appellant, his father and his brother were  angrily dissatisfied  with a  family partition and, on  the tragic day, flung the vessels over the division of which  the wrangle  arose, went inside the house, emerged armed, picked up an altercation eventuating in the young man (whose age  was around  18 or  20) stabbing  to death  three members of  the other  branch of  the family.  He chased and killed, excited  by the  perverted sense of injustice at the partition. It  is illegal  to award capital sentence without considering the  correctional possibilities  inside  prison. Anger, even  judicial anger,  solves no problems but creates many.      Have the courts below regarded the question of sentence from this angle ? Not at all. The genesis of the crime shows a family  feud. He  was not  a murderer born but made by the passion of  family quarrel.  He could  be saved  for society with correctional  techniques and  directed into  repentance like the Chambal dacoits.      What startles  us is  the way  the adolescence  of  the

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accused has  been by-passed  and  a  ruling  of  this  Court reduced to  a casualty  by a  casual observation. Hardly the way decisions  of the  Supreme Court,  read  with  Art.  141 should be by-passed.      Had the  appellant been  only 18 years of age, he would not have been sentenced to death as the High Court expressly states. The High Court is right in stating so. Tender age is a tender circumstance and in this country, unlike in England of old,  children are  not executed.  Since the  age of  the accused  is  of  such  critical  importance  in  a  marginal situation like  the present  one, one  should have  expected from the  courts below  a closer examination of that aspect. Unfortunately, they  have  not  got  the  accused  medically examined for  his age  nor have  they received  any specific evidence on the point but have disposed of the question in a rather summary  way: "In  the first  place, the  note of the learned Sessions  Judge on  his statement  shows that he was 19/20 years old and he had understated his age. Secondly, 133 I doubt  that the  observations of  the Supreme Court in the said case  (AIR 1976  SC 2071)  can be  applicable to such a case of  triple murder,  where each  victim is  deliberately stabbed in  the chest."  A judge  is no expert in fixing the age of  a  person  and  when  precise  age  becomes  acutely important  reliance   on  medical  and  other  testimony  is necessary. One  cannot agree with this manner of disposal of a vital  factor bearing  on  so  grave  an  issue  as  death sentence. Nor  are  we  satisfied  with  the  court  vaguely distinguishing a  ruling of this Court. It is not the number of deaths  caused nor the situs of the stabs that is telling on that  decision to  validate the  non-application  of  its ratio. It  is a mechanistic art which counts the cadavers to sharpen the  sentence oblivious  of other  crucial  criteria shaping a dynamic, realistic policy of punishment.      Three deaths  are regrettable, indeed, terrible. But it is no social solution to add one more life lost to the list. In this  view, we  are satisfied  that the appellant has not received reasonable  consideration on  the question  of  the appropriate sentence.  The criteria  we have  laid down  are clear enough  to point  to the  softening of the sentence to one of  life imprisonment.  A family feud, an altercation, a sudden  passion,   although  attended   with  extra-ordinary cruelty, young  and malleable  age, reasonable  prospect  of reformation and  absence of any conclusive circumstance that the assailant  is a  habitual murderer  or given  to chronic violence-these  catena   of  circumstances  bearing  on  the offender call for the lesser sentence.      It is  apt to  notice in  this context  that even  on a traditional approach  this is not a case for death sentence, if we are to be belighted by the guidelines in Carlose John. The murder  there was brutal but the act was committed while the accused  were in  a grip  of emotional  stress. This was regarded as  persuasive enough,  in the  background  of  the case, to  avoid the  extreme penalty.  The ruling  in Kartar Singh related  to a  case of  brutal  murder  and  of  hired murderers with  planning of  the criminal  project. In  that background, the  affirmation of  the death sentence, without any discussion  of the  guidelines  as  between  ’life’  and ’death’ awards  was hardly meant as a mechanical formula. It is difficult to discern any such ratio in that ruling on the question of  sentence in the grey area of life versus death. The holding  was surely  right even  by the  tests  we  have indicated but  to decoct a principle that if three lives are taken, death  sentence is  the sequel,  is to  read, without warrant, into that decision a reversal of the process spread

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over decades. 134      Social defence against murderers is best insured in the short run  by caging them but in the long run, the real run, by transformation through re-orientation of the inner man by many methods  including neuro-techniques  of which we have a rich legacy.  If the  prison system  will  talk  the  native language, we  have the  yogic treasure to experiment with on high-strung, high-risk murder merchants. Neuroscience stands on the  threshold of  astounding discoveries.  Yoga, in  its many forms,  seems to  hold splendid  answers.  Meditational technology as  a tool  of criminology  is a  mascent-ancient methodology. The  State must  experiment. It  is cheaper  to hang than  to heal,  but Indian  life-any human  life-is too dear to be swung dead save in extreme circumstances.      We are  painfully mindful that this Judgment has become prolix and  diffuse. But  too many  pages are not too high a price where  death sentence  jurisprudence demands  de  novo examination to do justice by the Constitution.      Much of  what we  have said  is an  exercise  in  penal philosophy in the critical area of death sentence.      "Philosophizing  is   distrusted   by   most   of   the professions that  are concerned with the penal system. It is suspect for  lawyers because  they are conscious that if the criminal law  as a whole is the Cinderella of jurisprudence, then the  law of  sentencing  is  Cinderella’s  illegitimate baby."      After all,  the famous words of Justice Holmes "The Law must keep its promises" must be remembered.      The appeals stand allowed and the death sentences stand reduced to  life imprisonment;  and, hopefully, human rights stand vindicated.      SEN, J. In an appeal confined to sentence under Article 136 of  the Constitution, this Court has not only the power, but as  well as  the duty  to interfere if it considers that the appellant should be sentenced ’differently’, that is, to set aside  the sentence of death and substitute in its place the sentence  of imprisonment  for life, where it considers, taking the  case as  a whole,  the sentence  of death  to be erroneous, excessive  or indicative  of an improper exercise of discretion;  but at  the same time, the Court must impose some limitations  on itself  in the  exercise of  this broad power. In  dealing with  a sentence  which has been made the subject of an appeal, the Court will interfere with a 135 sentence only  where it  is ’erroneous  in  principle’.  The question, therefore,  in each  case is  whether there  is an ’error of principle’ involved.      The Court  has the  duty to  see that on the particular facts and circumstances of each case the punishment fits the crime. Mere  compassionate sentiments  of a  humane  feeling cannot be  a sufficient reason for not confirming a sentence of death but altering it into a sentence of imprisonment for life. In  awarding sentence,  the Court  must, as it should, concern  itself  with  justice,  that  is,  with  unswerving obedience to  established law.  It is,  and  must  be,  also concerned with  the probable  effect of its sentence both on the general public and the culprit.      In the  three cases  before  us,  there  were  ’special reasons’ within  the meaning  of s.  354, sub-s.  (3) of the Code of  Criminal Procedure,  1973 for  the passing  of  the death sentence  in each and, therefore, the High Courts were justified in  confirming the  death sentence passed under s. 368(a) of  the Code.  Indeed, they  are illustrative  of the rare type  of cases,  that is, first degree murders, where a

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death sentence  is usually awarded in any civilised country. These were  cases of diabolical, cold blooded brutal murders of innocent  persons,  that  is,  first  degree  murders  of extreme brutality  or depravity.  The inhumanity  of some of these offenders defies belief.      I  had   the  advantage  of  reading  the  judgment  as originally prepared  by my  learned brother Krishna Iyer J., which, by  defining the  class of  cases in  which  a  death sentence may  be passed  upon conviction  of  a  person  for having committed  an offence  of murder  punishable under s. 302 of  the Indian  Penal  Code,  1860,  and  by  putting  a restrictive construction  on  the  words  "special  reasons" appearing in  s. 354,  sub-s. (3)  of the  Code of  Criminal Procedure, 1973,  does, in my opinion, virtually abolish the death sentence.      I was,  therefore, constrained to write this dissenting opinion, as it is difficult to share the views of my learned brother Krishna  Iyer J.  He has  now completely revised his draft judgment  in which he has endeavoured to meet my point of view,  and I  have had the advantage of reading it. But I see no  particular reason  to change my views on the subject or to re-write or revise my dissenting opinion as the matter essentially involves a question of principle.      My learned brother Krishna Iyer J. pleads for abolition of the  death penalty,  in  accordance  with  the  Stockholm Declaration of  the Amnesty  International. He believes that the death penalty is not only physically but psychologically "brutal", referring to the lengthy period between sentencing and execution  as a  "lingering death". He recalls the names of many  patriots who  faced the firing squad or died by the hangmen’s 136 noose, in  the cause  of the  country’s freedom,  and pleads that it  is the duty of the State to protect the life of all persons  without   exception.  He   asserts  that   by   its application, the death penalty contradicts the very sanctity of life  which all  human society  claims to  hold among the highest values.  He  tells  us  that  almost  all  civilised countries have abolished it as a symbol of their respect for human life,  and expresses  deep anguish  that  we,  in  our country, still  cling to  it with little regard to the basic rights of the man.      I fully  reciprocate the feelings of my learned brother Krishna Iyer  J. in  so far  as he  speaks of  the barbarity involved in  killing of  patriots who  have sacrificed their lives in  the country’s  struggle for freedom. The citizen’s right to life and personal liberty are guaranteed by Article 21  of   the  Constitution  irrespective  of  his  political beliefs, class,  creed or religion. The Constitution has, by Article 21  itself forged  certain procedural safeguards for protection to  the citizen of his life and personal liberty. The idealistic  considerations as  to the inherent worth and dignity of  man is  a fundamental and pervasive theme of the Constitution, to  guard against  the execution  of a citizen for his political beliefs.      1, however,  must  enter  a  dissent  when  my  learned brother Krishna  Iyer J.  tries to  equate a patriot with an ordinary  criminal.   The  humanistic  approach  should  not obscure our  sense of  realities. When a man commits a crime against  the  society  by  committing  a  diabolical,  cold- blooded, pre-planned  murder,  of  an  innocent  person  the brutality of  which shocks  the conscience  of the Court, he must face  the  consequences  of  his  act.  Such  a  person forfeits his right to life.      The main  thrust of his judgment is the decision of the

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Supreme Court  of the  United States of America in Furman v. Georgia am  afraid, Furman no longer holds the field even in the United  States. I  shall deal with this aspect in detail at a later stage.      The constitutionality  of the  death sentence  provided for the  offence of  murder under s. 302 of the Indian Penal Code is  not before  the Court. I fail to appreciate how can we say  that imposition  of death  penalty,  except  in  the classes of  cases indicated  by my learned brother, would be violative of Articles 14, 19 and 21 of the Constitution. The question really  does not  arise for  our consideration.  In Jagmohan Singh  v. State  of U.P.  this Court  rejected  the contention that  capital punishment for an offence of murder punishable  under   s.  302  infringes  Article  19  of  the Constitution in  as much  as it  could not be said that such punishment  was  unreasonable  or  not  required  in  public interest. It fur- 137 ther held  that s. 302 was not violative of Article 14 as it did not  suffer by  the  vice  of  excessive  delegation  of legislative functions,  merely because  it does  not provide for the  cases in  which a Judge should sentence the accused to death  and the  cases in  which he should sentence him to life imprisonment.  It was  observed that  the  exercise  of judicial discretion  in the  matter of  fixing the degree of punishment was  based on  well recognised  principles and on the final  analysis, the  safest possible  safeguard for the accused.  Nor   it  could   be  said  that  s.  302  confers uncontrolled and unguided discretion to Judges in the matter of sentence  and is, therefore, hit by Article 14. The Court further held  that s.  302 did  not contravene Article 21 of the Constitution  insofar as  the  trial  was  held  as  per provisions of  the Code  of Criminal  Procedure 1973 and the Evidence  Act  1872  which  were  undoubtedly  part  of  the procedure established by law.      I, therefore,  take it  that the  opinion of my learned colleague that  imposition of  a death  sentence in  a  case outside the  categories indicated  would be constitutionally invalid, is  merely an  expression of his personal views. As Judges we  are not  concerned with the morals or ethics of a punishment. It  is but  our duty to administer the law as it is and not to say what it should be. It is not the intention of this  Court to  curtail the  scope of  the death sentence under s.  302 by a process of judicial construction inspired by our personal views. The question whether the scope of the death sentence  should be  curtailed or  not, is one for the Parliament to decide. The matter is essentially of political expediency and, as such, it is the concern of statesmen and, therefore, properly  the domain  of the legislature, not the judiciary      Two propositions,  I think,  can be  stated at the very outset:           (1)  It   is    constitutionally    and    legally                impermissible for this Court while hearing an                appeal by special leave under Art. 136 of the                Constitution, on  a question  of sentence, to                re-structure s. 302 of the Indian Penal Code,                1860 or  s. 354,  sub-s. (3)  of the  Code of                Criminal Procedure,  1973, so as to limit the                scope of  the sentence  of death provided for                the offence of murder under s. 302.           (2)  It is  also not  legally permissible for this                Court while hearing an appeal in a particular                case where  capital sentence  is imposed,  to                define  the   expression  "special   reasons"

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              occurring in  sub-s. (3)  of s.  354  of  the                Code, in  such a  manner,  by  a  process  of                judicial interpretation,  which virtually has                the effect of abolishing the death sentence. 138      Section 302 of the Indian Penal Code, 1860, provides:           "Whoever commits  murder shall  be  punished  with      death, or  imprisonment for  life, and  shall  also  be      liable to fine"      Sub-section (3)  of s.  354 of  the  Code  of  Criminal Procedure, 1973, enacts:           "When the  conviction is for an offence punishable      with death  or, in  the alternative,  with imprisonment      for life  or imprisonment  for a  term  of  years,  the      judgment shall  state  the  reasons  for  the  sentence      awarded, and,  in the  case of  sentence of  death, the      special reasons for such sentence."      The question  of abolition  of capital  punishment is a difficult and  controversial subject, long and hotly debated and it  has evoked,  during the  past two  centuries  strong conflicting views.      Opinion as to whether the death penalty is necessary in order to  prevent an  outraged community from taking the law into its  own hands  has been sharply divided. Immanual Kant in his  ’Philosophy of  Law’, in upholding the death penalty observes:           "It is  better that  one man  should die  than the      whole  people   should  perish   for  if   justice  and      righteousness perish,  human life  could no longer have      any value in the world."           "Even if  a Civilised  Society resolve to dissolve      itself with  the consent of all its members-as might be      supposed in  the case  of People  inhabiting an  island      resolve to  separate and  scatter itself throughout the      world-the last murderer lying in the prison ought to be      executed before  the resolution  is carried  out". This      ought to be done in order that everyone may realise the      dessert of his deeds."      Montesquieu in  L’Esprit des  Lois regarded  the  death penalty as  repugnant, but  necessary-"the remedy  of a sick society". John Stuart Mill, made a very strong speech in the House of  Commons(1) advocating the use of the death penalty when it  was applied  to the   most heinous cases. Attacking the argument  that this  punishment was  not a  deterrent to crime, he said:           "As for  what  is  called  the  failure  of  death      sentence, who is able to judge that. We partly know who      those are  whom it  has not  deterred; but who is there      who knows  whom it  has deterred,  or  how  many  human      beings saved who should have lived." 139 Mill felt  that the  probability  of  an  innocent  person’s suffering the  death penalty  was very slight indeed. Judges and juries  would let  the guilty escape before the innocent would suffer.  If there  were the slightest doubt of a man’s innocence the death sentence would not be imposed or carried out.      Sir Henry  Maine, the English legal historian, observed that punishment  evolved from  social necessity. The concept of punishment  as a  form of  expiation or atonement reaches far back  into human  nature as  well as into human history. The notion  that the  threat of punishment by the State will restrain the  potential criminal is one of the most commonly accepted justifications for it. The idea has a philosophical basis in  the utilitarians’  concept  of  the  rational  man

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acting upon  a deliberate calculation of possible losses and gains.  If  men  choose  rationally  among  possible  future courses of  action then  surely the likelihood of a criminal course of  action could  be decreased  by attaching  to it a quick, certain and commensurate penalty.      The value  of  capital  punishment,  as  an  aspect  of deterrence, was  perhaps most  strongly put forward and very clearly stated  by the  great jurist,  Sir  James  Fitzjames Stephen more than a hundred years ago:           "No other  punishment deters  man  so  effectually      from committing crimes as the punishment of death. This      is one  of those  propositions which it is difficult to      prove, simply  because  they  are  in  themselves  more      obvious than any proof can make them. It is possible to      display ingenuity  in arguing  against it,  but that is      all. The  whole experience  of mankind  is in the other      direction. The  threat of  instant death  is the one to      which resort  has always  been made  when there  was an      absolute necessity  for producing  some result..No  one      goes to  certain inevitable death except by compulsion.      Put the  matter the  other way.  Was there  ever yet  a      criminal who,  when sentenced  to death and brought out      to die,  would refuse  the offer  of commutation of his      sentence for the severest secondary punishment ? Surely      not. Why  is this  ? It can only be because ’All that a      man has  will he  give for  his life’. In any secondary      punishment, however  terrible, there is hope; but death      is  death;   its  terrors   cannot  be  described  more      forcibly."      Supporters of capital punishment commonly maintain that it has  a uniquely  deterrent force  which no  other form of punishment has or 140 could have.  The arguments  adduced both  in support of this proposition and  against it  fall into  two categories.  The first consists  of  what  we  may  call  the  ’common  sense argument’  from  human  nature  applicable  particularly  to certain kinds  of murders  and certain  kinds of  murderers. This, a  priori argument  proceeds on the view that by doing so, the  law helps  to foster  in the  community  a  special abhorrence of  murder as  "a crime  of crimes". By reserving the death  penalty for  murder the  criminal law stigmatises the gravest  crime by  the gravest  punishment, so  that the element of  retribution merges  into that of deterrence. The second justifies  the ethics of capital punishment. Whatever be the  ultimate justification  for the  punishment, the law cannot  ignore  the  public  demand  for  retribution  which heinous crimes  undoubtedly provoke;  it would  be generally agreed  that,  though  reform  of  the  criminal  law  ought sometimes to  give a lead to public opinion, it is dangerous to move too far in advance of it.      The movement  to abolish death penalty started with the humanitarian doctrine evolved by Marchese De Cesars Bonesana Beccaria, Italian publicist. In 1764, Bonesana published the famous little  treaties Dei  Delitti e della Pen. The French translation contained  anonymous preface by Voltaire. In the preface to this book first appeared the phrase "the greatest happiness  of   the  greatest   number".  It  advocated  the prevention of  crime rather  than punishment, and promptness in punishment, where punishment was inevitable; above all it condemned confiscation,  capital  punishment,  and  torture. Beccaria’s   ideas   directly   influenced   the   reforming activities of  many social  thinkers and  philosophers. This represented  a   school  of   doctrine,  born   of  the  new humanitarian impulse  of the  Eighteenth Century  with which

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Rousseau, Voltaire  and Montesquieu in France and Bentham in England were  associated, which  came afterwards to be known as the classical school.      Moved by  compassionate sentiment  of a humane feeling, Beccaria asserted  that all  capital punishment  is wrong in itself and  unjust. He maintained that since man was not his own creator,  he did  not have  the right  to destroy  human life,  either   individually  or  collectively.  It  is  the ultimate  cruel,   inhuman  and  degrading  punishment,  and violates the right to life. Its basic value, he affirmed, is its  incapacitative   effect.   Beccaria   claimed   capital punishment was  justified in only two instances, first if an execution would  prevent a  revolution against  a  popularly established government,  and secondly,  if an  execution was the only way to deter others from committing a crime. 141      The policy of retribution is justified and sustained by an  ethical   philosophy  which  regards  punishment  as  an integral and  inviolative element in wrong doing, as a moral necessity. This doctrine has been consistently maintained by intuitive or  idealistic philosophers  from Plato  to Thomas Aquinas and  from Kant to T. H. Green and his disciples. The deterrent effect  of punishment  has also  been  claimed  by adherents of  this school  but its  widespread adoption as a policy has  probably been  due more  to the influence of the utilitarian philosophy  of Bentham,  Paley, John Stuart Mill and Herbert  Spencer, which makes the welfare of the society "the greatest  good of  the greatest number", the aim of all moral activity.  It is  this utilitarian philosophy which is now in  the ascendent in penal legislation and which governs the view  of most  modern penologists.  It still survives in the death  penalty for  murder and  in the drastic penalties imposed for  rape and  other  crimes  which  are  peculiarly offensive to the moral sentiment as to the sense of security of the community.      Nearly everywhere,  in the more recent stages of social development, this  motive has  been supplemented,  but never wholly  supplanted,   by  an   unquestioning  faith  in  the deterrent effect  on potential offenders of exemplary, i.e., drastic, punishment, inflicted on actual offenders which, in practice if not in theory, comes to much the same thing.      The doctrine  of the "individualisation of punishment", that is  to say  of the  punishment of the individual rather than the  crime committed  by him,  which is  of  commanding importance in present day penology, is only a development of the neo-classical  school of  the  revolutionary  period  in France,  which  modified  Beccaria’s  rigorous  doctrine  by insisting on  the recognition  of  the  varying  degrees  of moral, and  therefore, legal responsibility. Its fundamental doctrine is  that the  criminal is  doomed by  his inherited traits to  a criminal  career and  is, therefore,  a  wholly irresponsible actor. Society must, of course, protect itself against him,  but to  punish him  as if he were a free moral agent is as irrational as it is unethical.      In  his  ’Introduction  to  Principles  of  Morals  and Legislation’,  the   great  work   in  which   the   English philosopher and  jurist, Jeremy Bentham was engaged for many years, was published in 1789. Mankind, he said, was governed by  two   sovereign  motives-pain   and  pleasure,  and  the principle of  utility recognised this subjection. The object of all  legislation must  be the  "greatest happiness of the greatest number".  On the  legal side,  he deduced  from the principle of  utility that  since all  punishment is  itself evil it  ought only to be admitted "so far as it promises to exclude some greater evil".

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142      The English social reformer, Sir Samuel Romilly devoted himself primarily  to reform  the criminal  law of  England, then at once cruel and illogical, by attempting to influence Parliament to  pass three Bills designed to repeal the death penalty for  theft. By statute law innumerable offences were punishable  with   death  in   England,  but,  as  wholesale execution would  be impossible,  the larger  number of those convicted and  sentenced to  death  at  every  assizes  were respited, after  having heard the sentence of death solemnly passed upon them. This led to many acts of injustice, as the lives of  convicts depended  on the  caprice of  the Judges, while, at  the  same  time  it  made  the  whole  system  of punishment and  of the  criminal  law  ridiculous.  In  1808 Romilly managed  to repeal  the Elizabethian  statute, which made it  a capital  offence to steal from the person. In the following  year,  three  equally  sanguinary  statutes  were thrown out of the House of Lords under the influence of Lord Ellenborough. Year  after year the same influence prevailed, and Romilly  saw his bills rejected; but his patient efforts and his  eloquence ensured  victory eventually for his cause by opening  the eyes of Englishmen to the barbarity of their criminal law.  In spite of the efforts which Romilly made to procure the abolition of the death penalty in many cases, it should be  noted, however, that he was not an "abolitionist" in the sense of the term today.      All punishment  properly implies  moral accountability. It is  related to  injury and  not only to damage or danger, however great.  Capital punishment  does so  in  an  eminent degree. It  is directed  against one  who is ex-hypothesi an inhuman brute,  i.e. it  is imposed  simply to eliminate one who is  held to have become, irretrievably, a liability or a menace to society.      As Aristotle  put it,  just retribution consists not in simple  but   in  proportionate  retaliation,  that  is,  in receiving in  return for  a wrongful  act not the same thing but its equivalent, and, what this is, can only be estimated if the whole context is taken into account. It may be argued that murder  for instance,  as the  one crime which is quite irrevocable, as  justly met  by the  one punishment which is equally irrevocable,  a unique  form  of  punishment  for  a unique form  of crime. To reduce its punishment to something of the  same order  as other  punishments, is  to weaken the abhorrence which  it should  express and  diffuse.  On  this showing an  execution expresses  absolute  condemnation.  It both satisfies and educates the public conscience; for those in  authority   thus  deepen   in  themselves   and  diffuse throughout the  community their  sense of "the wickedness of wickedness, the  criminality of crime". It is an outward and visible sign of the utmost imaginable disgrace. The death 143      penalty  has   signified  shame   and  infamy  and  has generally  been  understood  to  do  so;  and  all  this  is expressed  in  symbolic  action  of  a  kind  that  is  both spontaneous and calculated to arrest attention.      If the appeal of capital punishment were merely to fear of death,  it would  be  a  very  inefficient  protector  of society. In  civilized society  and in peacetime, government relies for  obedience more  on its  moral prestige  than  on violent repression  of crime.  Punishment only protects life effectively if  it produces  in possible murderers, not only fear  of  the  consequences  of  committing  murder,  but  a horrified recoil  from the thing itself. It can only achieve this, more  ambitious, task, if sentence of death is felt to embody  society’s   strongest  condemnation  of  murder  and

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keenest sense  of its  intolerable wickedness.  It is not by the fear  of death  but  by  exciting  in  the  community  a sentiment of  horror against any particular act, that we can hope to  deter  offenders  from  committing  it.  The  Royal Commission  sucinctly  explained  the  normal  character  of capital punishment thus:           "by building  up in  the community,  over  a  long      period of  time, a  deep feeling of peculiar abhorrence      for the crime of murder."      The criminality  of a  crime consists  not only  in the criminal act,  but in  what that  signifies. Its immediately apparent features,  the obvious damage to person or property or to public security, are symptoms of a deeper disorder. It betokens, and  it fosters,  an attitude  in man  to man,  of reckless   selfishness,   deceit   or   malice,   which   is incompatible in the long run with any decent social life. In any advanced  society it is, in part at least, on account of this wider character, less easily discerned, that the graver offences are punished. Also punishment like crime has a dual character. The  penalty which  the convicted murderer incurs is not  simply death,  but death  in disgrace and death as a disgrace. In  so far  as capital punishment is a threat, the threat consists  not only in death but in infamy. Any theory which ignores this characteristic is certainly defective.      For a  long time  the problem of capital punishment was regarded as  a purely  academic  question.  Everything  that could be  said appear  to have been said on a question which Beccaria had  brilliantly brought  to public  notice in  the second half  of the  Eighteenth Century,  but which had been exhausted by subsequent controversy. Punishment inflicted by the State in response to a violation of the criminal law 144 has been  justified in  various ways.  It has  been seen  as society’s vengeance  upon the  criminal as  atonement by the wrong doer,  as a  means of  deterring other  criminals,  as protection  for   the  law-abiding   and   as   a   way   of rehabilitating  the   criminal.  The   individual  who   has inflicted harm on another, runs the revenge argument, should be made  to suffer  in return;  for only an act of vengeance can undo  the harm  that  has  been  done  and  assuage  the suffering of the victim.      As against  this, some social reformers have maintained that punishment  ought to  be decent to transform the values and attitudes of the criminal so that he no longer wishes to commit illegal  acts. The  problem, of  course, has  been to discover how  to  do  it.  Theories  of  rehabilitation  are largely speculative,  since  there  is  lack  of  scientific evidence  to   support  them.   Nevertheless,  it  has  been influential in the development of modern penology.      In England, during the Nineteenth Century, Disraeli and Gladstone, the  leading politicians  in the country, took no part  in   the  movement   to  abolish  the  death  penalty. Leadership in  this crusade  fell to  lesser  men,  and  the abolitionists formed  a distinct  minority. The  majority in the House of Commons evidently felt, as Sir John Holkar, the Attorney General  felt, that  criminals were  deterred  from adding deliberate  murder to  their other crimes by the fear of the  death penalty.  In the  period between the first and second world  wars, however,  the emergence of authoritarian systems of penal law raised once more the problem of capital punishment in a particularly acute manner. At the end of the second world  war, there  was  a  renewed  upsurge  of  this humanitarian tendency  which, like  the desire  to safeguard human rights  and human  dignity, had been the mainspring of the movement for the abolition of the death penalty.

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    Several attempts  were made  to break the parliamentary fortress but  without any  success. Very little was actually accomplished by  the abolitionists  in Parliament till after the second  world war,  when the  Labour Government  came to power. In  between 1949  and 1953  the Royal  Commission  on Capital Punishment carried out an exhaustive inquiry.      The Royal  Commission made  a study of this complex and many-sided task.  It held  its inquiries  not only  in Great Britain but  also in  the United States and several European countries and  heard evidence from every possible source. It listened to an impressive array of witnesses. In addition to all  this,   information  was  collected  from  Commonwealth countries and several other European countries. Its 145 result is  reflected  in  the  Royal  Commission  Report  on Capital  Punishment   which  presents  a  comprehensive  and dispassionate picture of the whole subject.      The Commission was debarred by their terms of reference from  considering  the  question  of  abolition  of  capital punishment, but  in the  course of  their investigation they naturally accumulated  a good  deal of  information which is just as  relevant to  this  issue  as  to  the  question  of limiting  the   scope  of  capital  punishment.  The  report contains a  good deal of material on the "Deterrent Value of Capital Punishment". It is evident from the report that some of the  most distinguished judicial witnesses including Lord Goddard, the  Lord Chief  Justice of  England, Lord Denning, the Master  of Rolls,  and some very experienced Judges like Mr. Justice Humphreys, Sir John Beaumont, Mr. Justice Byrne, were firmly  of the view that the capital punishment must be retained for the protection of the society. They went to the extent of expressing their strong disapprobation of the free use of prerogative as being an interference by the Executive with the Judiciary and argued that the exercise of the power should be narrowly confined.      As a justification for retention of death penalty, some of these  distinguished Judges  put forth  the principle  of retribution, and  the others  placed greater  importance  on deterrence.  There  was,  however,  general  agreement  that justification for the capital sentence, as for other salient features  of   the  penal  system  must  be  sought  in  the protection of the society and that alone.      The punishment of death, said Lord Denning to the Royal Commission, should reflect adequately the revulsion felt for the gravest  of crimes  by the  great majority  of citizens. But, in  saying this, he implied that legislators and Judges share this  revulsion  themselves;  otherwise  indeed  their action would  be morally indefensible. Their aim then should be, not  only to  strike terror  nor even  to awaken popular indignation in  a direction  convenient  to  Government.  It would be  to arouse  in all  and sundry  their own indignant repudiation of a wicked act and, at the same time, to deepen it in  themselves. In  this vein, sentence of death has been pronounced,  carried   out   and   acclaimed,   with   stern satisfaction. This  principle of  action is  still avowed in high places,  and, I believe, it is semi-consciously at work more often than it is avowed, for it is said that otherwise, the conscience  of the  community would  be revolted  if the criminal were  allowed to live. In the same vein, Lord Chief Justice Goddard said in 1948: 146           "The public  conscience  will  not  tolerate  that      persons who deliberately condemn others to painful, and      it may  be lingering,  deaths should be allowed to live      ....  Some   of  these   bestial  murderers  should  be

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    destroyed."      The use  of capital  punishment has  declined in recent times, although  it is  still permitted  by law,  as in this country, for  various kinds of offences like treason, murder etc.  The   issue  of   abolishing  it   has  aroused   much controversy. The advocates of capital punishment claim it as a necessary  deterrent to  crime and  relatively painless if done properly.  Even where  it has been legally retained, as here, capital  punishment is  now seldom  employed except in very grave cases where it is a crime against the society and the brutality  of the  crime shocks the judicial conscience. Indeed,  the   death   penalty   satisfies   the   society’s retributive goals and is still presumed to be a deterrent to potential offenders. Of the three purposes commonly assigned to  punishment-retribution,   deterrence  and   reformation- deterrence is  generally held  to  be  the  most  important, although the continuing public demand for retribution cannot be ignored.  Prima facie,  the death  sentence is  likely to have a  stronger effect  as a  deterrent upon  normal  human beings than  any other  form of  punishment. There  is  some evidence that  this is,  in fact, so and also that abolition may be  followed by  an increase  in homicides and crimes of violence.      In brief,  people are  believed to  refrain from  crime because they  fear punishment.  Since people fear death more than anything  else the  death penalty is the most effective deterrent.      In  Britain,   following  the   Report  of   the  Royal Commission on Capital Punishment, the Homicide Act, 1957 was enacted due  to the  growing pressure  of public  opinion to mitigate the  rigour of  the criminal  law. (1=6) It brought about a  division  of  criminal  homicide  into  degrees  of murder. It  resulted in  the establishment  of a distinction between  capital   and  non-capital  murders.  It  not  only eliminated long-standing  iniquities and  rigidities in  the law of murder such as the doctrine of "constructive malice", but  also   brought  the   law  into   accord  with   modern criminological thoughts  by the  importation of the doctrine of "diminished responsibility". 147      By s.  7 the  Act abolished the liability to suffer the death penalty  on conviction  of murder  and substituted the sentence of imprisonment for life by s. 9, sub-s. (1) except in cases  of first  degree murders falling within s. 5 or s. 6. Section  5 reserved the death penalty for five classes of first degree murders, namely:           (i)  any murder  done in the course or furtherance                of theft;           (ii) any murder  by  shooting  or  by  causing  an                explosion;           (iii)any murder  done in  the course  or  for  the                purpose   of   resisting   or   avoiding   or                preventing a  lawful arrest,  or of effecting                or assisting  an escape  or rescue from legal                custody;           (iv) any murder  of a police officer acting in the                execution  of   his  duty   or  of  a  person                assisting a police officer so acting; and           (v)  in the case of a person who was a prisoner at                the time  when he  did or  was a party to the                murder, any murder of a prison officer acting                in the  execution of  his duty or of a person                assisting a prison officer so acting.      Sub-section (2)  of s.  5 provided for death penalty on the principal  assailant and  not his accessories before the

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fact, where  a group  of persons  made a  murderous  assault causing  grievous   bodily  hurt  resulting  in  death.  The distinction drawn  in felonies  between  principals  in  the first and second degree and accessories before the fact have since been abolished by virtue of the Criminal Law Act 1967, s. 1,  and all  these participants  have to  be punished  in accordance with  the  Accessories  and  Abettors  Act  1861. Section 6 provided the death penalty for repeated murders.      The cases  in which the death penalty was retained were those where,  in the view of the Government, murder was most dangerous to  the preservation  of law  and order, and where the death  penalty was likely to be a particularly effective deterrent. The  death  penalty  for  murder  was  thereafter temporarily abolished  for a  period of  five years,  as  an experimental measure  by  the  Murder  (Abolition  of  Death Penalty) Act  1965. This  Act was to expire on July 31, 1970 but was  made permanent  by resolution  of  both  Houses  of Parliament.      The  punishment   for  murder   in   Britain   is   now imprisonment for  life by  s. 1,  sub-s. (1)  of the  Murder (Abolition of Death Penalty) Act 148 1965. On  sentencing  any  person  convicted  of  murder  to imprisonment for  life, the  Court  may  at  the  same  time declares a  period which  it recommends  to the Secretary of State as  the minimum period which in its view should elapse before the  Secretary of  State orders  the release  of that person on  licence under s. 27 of the Prison Act 1952. In R. v.  Flemming   it  has   been   suggested   that   no   such recommendation should  be for  a period  of less than twelve years.      It  must,  however,  be  observed  that  in  Britain  a sentence of  death can  still and  only be  awarded for high treason (Treason  Act  1814)  s.  1;  piracy  with  violence (Piracy Act  1837) s.  2; setting fire to the Queen’s ships, arsenals etc.  (Dockyards etc.  Protection Act  1772) s.  1. When a  person is  convicted of  treason, sentence  of death must be  pronounced, but in case of piracy with violence and setting fire to the Queen’s ships, arsenals, etc., it may be merely recorded.  Sentence  of  death  cannot,  however,  be pronounced  on  or  recorded  against  an  expectant  mother [Sentence of  Death (Expectant  Mothers) Act  1931] s. 1, or against a  person who was under the age of eighteen when the offence was  committed (Children and Young Persons Act 1933) s. 53 (1).      The successful campaign to abolish the death penalty in Britain has been achieved in a comparatively short period of time by  no more  than a handful ardent penal reformers like Sydney Silverman  who carried  out the  unfinished  work  of Romilly and  other reformers, pertinacious in their lobbying and propaganda,  in the  face of  majority opinion favouring retention of  an admittedly  barbaric but, to that majority, necessary  penal  instrument.  If  the  final  debates  were protracted-Silverman’s   private    members’   Bill    (with invaluable Legislative  time given  by the  Government)  was introduced on December 4, 1964, and reached the Statute Book only on  November 2,  1965-the history  of the campaign is a remarkable testament  to British democracy which can convert convinced  minority  opinion  into  progressive  legislative action      Due  to  an  increase  in  the  incidence  of  criminal behaviour, and  steady rise in the volume of reported crime, there is  a  genuine  public  concern  in  Britain  for  re- assessment of the penal policy of the Government. 149

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    D.A. Thomas  in his  article "Development in Sentencing 1964-1973" observes:           "As a  society, we  have made inconsistent demands      on our  official system  of  social  control  expecting      greater   security    from   violence,   disorder   and      depreciation and  simultaneously requiring  that  penal      sanctions become  less rigorous and more adopted to the      individual offender."      The learned author proceeds to say:           "The provisions  of the Murder (Abolition of Death      Penalty) Act 1965 provides a simple illustration. Taken      in isolation,  they provide  that a person convicted of      murder shall be sentenced to life imprisonment, and the      judge passing such a sentence may make a recommendation      that a  specified minimum  period should  elapse before      the offenders may be released on licence. The mandatory      life sentence,  part of  the  political  price  of  the      abolition of  the death  penalty, cannot be defended on      any rational grounds."      And then concludes:           "In assessing  the future trend of penal policy in      this country,  it is probably wise to bear in mind that      the problems  facing the  criminal justice  system  are      unlikely to  diminish during  the next  decade of their      own accord-things  will almost  certainly become  worse      rather than  better. There  seems to  be no  reason  to      suppose that  the relatively steady rate of increase in      the volume  of reported  crime over  the last ten years      will not continue."      The two  recent decisions of the Privy Council in Eaton Baker v. The Queen and Michael de Freitas v. George Ramoutar Benny are  completely destructive  of the  theory  that  the death penalty  is per  se cruel  and unusual punishment, and (2) alternatively,  the inordinate delay in carrying it out, makes it  so. In  Eaton Baker’s  case the  appeal was  on  a question of  sentence. The  issue was  whether the  Court of Appeal of  Jamaica was  right in sentencing to death the two youngmen who  when they  committed the murder were under the age of  eighteen years,  but when they were convicted of the offence and sentenced to death, had both attained the age of 18 years.  The mandatory  sentence of  death upon conviction for murder is imposed 150 by s.  2 of  the Offences  against the  Person Act 1925. The exception on  account of  youth is  contained in s. 29(1) of the Juveniles  Law which interdicts that a sentence of death shall not  be pronounced  on or  recorded against  a  person under the  age of  18 years.  The Judicial  Committee  while holding that  the statutory  exemption  from  death  penalty under s.  29(1) of  the Juveniles  Law was  not  applicable, observed  that   the  time   for  ascertaining  whether  the appellants were  to be  treated as Juveniles was the date on which the  sentence was  passed and  not  the  date  of  the offence.  As  to  the  constitutional  issue,  the  Judicial Committee held  that when  a person  was held  guilty  of  a charge of murder, the death sentence passed on him cannot be treated as  a contravention  of s. 20(7) of the Constitution of Jamaica, stating:           "One’s opinion  as to  whether the consequences of      giving effect to the sub-section would be irrational or      unjust is  inevitably coloured  by whether  one  starts      with the  belief  that  capital  punishment  should  be      abolished  for   all  offences   except,  perhaps,  for      treason-a view  accepted by  the legislature, if not by      public opinion  in general,  in the  United Kingdom; or

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    with the  contrary belief  that capital  punishment  is      normally the  appropriate  penalty  for  murder-a  view      which the  continuance in  force of  section 2  of  the      Offences against the Person Law suggests is accepted by      the legislature in Jamaica." (Emphasis supplied).      In de  Freitas case  the Privy  Council  confirmed  the sentence of  death passed by the Court of Appeal of Trinidad and Tobago,  and held  that there  was no  violation of  the human rights and fundamental freedoms guaranteed under ss. 1 and 2 of the Constitution of Trinidad and Tobago inasmuch as the sentence  of death  was passed  according  to  the  "due process of law". In repelling the alternative argument based upon delay,  it  observed  that  "  the  delay  was  of  the appellant’s own making" and he could not put forth this as a ground for commutation of the sentence of death. It stated:           "It is  not contended that the executive infringed      the appellant’s  constitutional  rights  by  refraining      from executing him while there were still pending legal      proceedings that  he himself  had instituted to prevent      this execution."      There was  evidence that  prior  to  independence,  the normal period spent in condemned cell by the prisoner before execution  was  five  months  and  that  this  practice  was sufficient to  give rise  to an  ’unwritten rule  of law’ in force  at   the  commencement   of  the   Constitution.  The contention was  that the  executive was, therefore, bound to so  organise  the  procedure  for  carrying  out  the  death sentence that the 151 average lapse  of time is not more than five months, and the carrying out  of the  death sentence  beyond the  period was incompatible with the right of the individual under s. 1 (a) of the  Constitution not  to be  deprived of life "execpt by due process  of law"  because it  involves the imposition of "cruel and  unusual punishment"  within the  meaning  of  s. 2,(b).  The   Judicial  Committee  rejected  the  contention saying:           "This contention  in their  Lordships’ view  needs      only to  be stated  to be  rejected. Not  only does  it      involve attributing  to the  expression "unwritten rule      of law" in section 105(1) of the Constitution a meaning      which it is incapable of bearing, but it conflicts with      the very concept of the nature of law."      That takes  us to  the decision of the Supreme Court of the United States of America in Furman v. Georgia (supra) in which my  learned brother  Krishna Iyer  J. strongly relies. There, the  question was  whether the death penalty at least as generally  practised in  the United  States, per  se, was ’cruel  and  unusual’  because  the  imposition  of  capital punishment "does  not comport with human dignity" or because it was  "morally  unacceptable"  and  "excessive"  and  thus violative of the Eighth Amendment.      In the  United States of America, the death penalty has paradoxcally existed  more or  less harmoniously with humane theories of criminal justice for over two hundred years. The Eighth Amendment prohibits ’cruel and unusual punishment’.      The  Eighth   Amendment’s  ban  on  cruel  and  unusual punishment has  raised some very difficult moral issues. The Supreme Court  applied various standards in interpreting the provision. In Trop v. Dulles the Court by a majority of five to four,  refused to consider "the death penalty as an index of the constitutional limit on punishment", stating:           "Whatever the  arguments may  be  against  capital      punishment...the  death   penalty  has   been  employed      throughout our  history and,  in a day when it is still

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    widely accepted,  it cannot  be  said  to  violate  the      constitutional concept or cruelty."      Chief Justice  Warren, speaking  for Mr. Justice Black, Mr. Justice  Douglas and  Mr.  Justice  Whittakar,  asserted that:      "this Court  has had  little occasion  to give  precise content to  the Eighth  Amendment", that  it content  is not static, but 152      "must draw  its meaning  from the evolving standards of      decency that  mark the progress of a maturing society."      This amendment  whose "basic  concept is  nothing  less      than the  dignity of  man" guarantees "the principle of      civilised treatment."      There   began    concerted   legal   attacks   on   the constitutionality  of   capital  punishment  in  the  1960s, stimulated in  part by  the fact  that those receiving death sentences were  disproportionately Blacks.  The issue  as to the constitutionality  of  the  death  penalty  in  a  State usually arose  in the  Supreme Court of the United States on procedural grounds,  that is, on the question of fairness of the  procedural   aspect  and  its  application,  viz.,  the practice under  which state statutes left a jury to mote out the death  penalty at  its discretion,  with no standards of any sort  to guide  them, or  the application of the penalty without judicial  standards. In  McGoutha v.  California the Supreme Court  rejected  the  contention  holding  that  the absence of  any guidelines  was  not  a  violation  of  "due process". Mr.  Justice Harlan thought it would be impossible to draft statutory standards for this purpose, saying:           "To identify before the fact these characteristics      of criminal homicides and their perpetrators which call      for  the   death  penalty,   and   to   express   these      characteristics  in   language  which   can  be  fairly      understood and  applied by  the  sentencing  authority,      appear to  be tasks  which  are  beyond  present  human      ability."      In Furman  v. Georgia,  the Court by a majority of five to four ultimately held that capital punishment, at least as generally administered, did violate the Eighth Amendment. It held that  imposition of  the death  penalty  in  the  three cases, one  for murder  and two  for rape, constituted cruel and unusual  punishment  in  violation  of  the  Eighth  and Fourteenth Amendments.  The Court  issued a brief per curiam order, followed by substantial statements by every member of the Court.  The judgment  in the  case was  reversed and the cases remanded  for further  proceedings. Each  of the  five majority Justices  and  four  dissenters  wrote  a  separate opinion, supporting his position.      The  five   Justices  in  the  majority  each  wrote  a concurring  opinion  which  approached  the  matter  from  a different angle  so that clear categorisation is impossible. It can  thus be seen that the multiple opinions did not rule out altogether  re-imposition of  the death  penalty in  the future provided  there  was  legislative  structuring  of  a permissible system 153 providing for  sufficient  procedural  safeguards.  This  is exactly what  has happened  in the  United States  where the death penalty  has been re-imposed and the judicial approach stands re-oriented.      Broadly  stated,   Mr.  Justice  Douglas,  Mr.  Justice Stewart and Mr. Justice White held that the death Penalty as imposed, is  arbitrarily  and  infrequently  meted  out,  in violation of  the Eighth and the Fourteenth Amendments. They

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took an  analytic and  empirical  approach,  appraising  the practice under  the Eighth  Amendment in  the light  of  due process and  equal protection. Their concern was whether the death penalty  was evenly  applied, and of course they found that it  was not.  This is  reflected in  the opinion of Mr. Justice Douglas  who held  that the  death penalty was cruel and unusual  because applied irregularly and "selectively to minorities whose  members  are  few,  who  are  outcasts  of society, and  who are unpopular, but whom society is willing to see  suffer  though  it  would  not  countenance  general application of the same penalty across the boards"      Mr. Justice Stewart’s comment was:           "These death  sentences are  cruel and  unusual in      the same  way that  being struck  by lightning is cruel      and unusual.  For, of all the people convicted of rapes      and  murders   in  1967   and  1968,   many   just   as      reprehensible as  these, the  petitioners are  among  a      capriciously selected  random  handful  upon  whom  the      sentence of death has in fact been imposed."      Mr. Justice  White conceded  that  the  death  penalty, while cruel in "the dictionary sense", would nevertheless be justified if it served "social ends". But he did not believe "that society’s  need"  for  specific  deterrence  justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient.      Mr. Justice  Brennan and  Mr. Justice  Marshall took  a normative approach.  They advocated  the total  abolition of the death  penalty because  it is  in all cases violative of the Eighth  Amendment cruel  and unusual  punishment clause. For them,  the Eighth  Amendment posed  a core  question  of values; they  were concerned less with fairness and equality and more  with mercy  and charity.  For Mr. Justice Brennan, "the primary  principle....is that  a punishment must not by its severity  be degrading  to human  dignity". Mr.  Justice Marshall, in  by far  the longest opinion of the day pleaded for an  humanistic approach.  His impassioned conclusion was that ending the death sentence would recognise "the humanity of our  fellow beings" and achieve "a major milestone in the long road up from barbarism". 154      The opinions  of the  four dissenting  Justices were as important as  the majority statements because any subsequent challenges on  Furman would incorporate their reasoning. Mr. Justice  Blackman   and  Mr.   Justice  Rehnquist,  who  are advocates of  strict judicial  conservation, felt  that  the matter was essentially political, and properly the domain of the legislature, not the judiciary.      Chief Justice Burger, admitting that since the ruling a Trop v.  Dulles (supra) in 1958, it is necessary to evaluate a challenged  punishment in terms of the "evolving standards of decency.... of a maturing society", felt nonetheless that there is  no judicially  significant  public  opposition  to capital punishment  in the  United States. Pointing out that the decision  rejecting the  death penalty  was  essentially based on procedural grounds, as the majority agreed that the arbitrary   infliction    of   the    death   penalty    was unconstitutional, Burger  contends that the Eighth Amendment does not  deal with procedure, and with only the substantive nature of  the punishment  in question. He believes that the imposition of a mandatory death penalty for certain offences would not be invalidated by the holding in this case because a mandatory penalty could not be arbitrily meted out.      Mr. Justice  Powell dissented  by establishing that the constitutionality of  the death penalty is supported by four factors, viz.,  (i) the  references to capital punishment in

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the Constitution,  (ii) the  past Supreme Court decisions on the  death   penalty,  (iii)   the  limitation  of  judicial restraint, and (iv) the doctrine of separation of powers. He found that  the evidence  of the  petitioners fell  short of satisfying their burdens of persuasion with respect to these factors.      Due to  the ambiguity  of the  Furman decision,  it  is fortunate that  the Supreme Court gave further indication of its intentions  regarding the  death penalty  in  subsequent decisions. But  Furman was not determinative of the issue on the merits,  namely, the  constitutionality of  the  penalty because it  violates the  Eighth Amendment cruel and unusual punishment. It  was widely  assumed that  the Court  had not declared capital punishment unconstitutional per se but only its unpredictable and fortuitous use.      Since the  Furman decision, the legislatures of thirty- five states  in the  United States  acted to  tighten up the laws under  which the  death penalty was to be imposed. They took two different approaches. Some State including Georgia, Florida and  Texas, established  new procedures  for capital cases requiring sentencing judges and juries to 155 consider  certain   specified  aggravating   or   mitigating circumstances of  the crime  and the  offender. There  was a bifurcated trial  with pre-sentencing,  hearing.  Courts  of Appeal were  given broader  authority to  decide whether the death penalty  was fair  in the  light of  the sentences for similar offences  These laws  were intended  to redress  the arbitrariness and racial prejudices renounced in Furman. But the other  States, including  North Carolina,  Louisiana and Oklahoma sought  to meet  the Furman  objections by removing all flexibility from the sentencing process, though limiting the offences  for which the death sentence could be imposed. Anyone found  guilty of  the specified  offences was  to  be sentenced to  death automatically.  The constitutionality of the sentences  imposed under such procedures has been upheld by five State Supreme Courts.      On July 2, 1976, the Supreme Court of the United States delivered the  judgment it  had postponed a year earlier. It handed down  five opinions  dealing with  the death penalty. Three of these were concerned with the mandatory sentence of death. All  involved the  crime of  murder. The  five  cases were: Gregg  v. Georgia,  Proffitt v Florida, Jurek v. Texas Woodson v. North Carolina, and Roberts v. Louisiana.      The issue in the three cases dealing with discretionary sentencing  (Gregg,   Proffitt  and   Jurek)   was   whether imposition of  the sentence of death for the crime of murder under the  laws of the respective states violated the Eighth and Fourteenth  Amendments. In  all three, the Court reached the same  conclusion, that  the punishment  of death did not invariably violate the Constitution.      The Court’s  reasons in  Gregg  as  to  why  the  death sentence was  not a  per se  violation  of  the  Eighth  and Fourteenth amendments  were as  follows: First,  history and precedent do  not support  the  conclusion  that  the  death sentence  is  a  per  se  violation.  Second,  the  evolving standards  of   decency  argument   has  been  substantially undercut in  the last  four years because a large segment of the enlightened  population regards  the  death  penalty  as appropriate and  necessary, as  seen in  the new legislation passed in response to Furman.      The Court came to the conclusion that the death penalty was  not   inherently  cruel  and  unusual.  It  served  two principal social purposes, 156

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retribution and deterrence, and held that the death sentence for the  crime of  murder was (1) not without justification, (2) not  unconstitutionally severe,  and (3)  not invariably disproportionate to the crime.      The   Court   found   that   Furman   mandated,   where discretionary sentencing  was used  there must  be  suitable direction and  limitation to  minimise the  risk  of  wholly arbitrary and  capricious action.  The bifurcated trial with standards modelled  after the  Model Penal Code gives juries just such guidance. Therefore, the concerns of Furman can be met by  carefully drafted  statutes that  ensure  sentencing authorities are  given adequate  information and guidance in making their  decision. As  a general proposition, the Court concluded that  these concerns  were best  met by bifurcated proceedings  with   standards  to  guided  the  use  of  the evidence.      I wish to conclude this part of the judgment by quoting Herbert L.A.  Hart, who  in his  article on  "Murder and the Principles of  Punishment: England  and the  United  States, admirably sums up the two points of view:           "There  are   indeed   ways   of   defending   and      criticising  the   death  penalty   which   are   quite      independent of  the utilitarian  position  and  of  the      questions of  fact which  the utilitarian will consider      as crucial.  For some people the death penalty is ruled      out entirely  as something  absolutely evil which, like      torture, should  never be  used however  many lives  it      might save. Those who take this view find that they are      sometimes met  by the  counter-assertion that the death      penalty is some thin which morality actually demands, a      uniquely   appropriate    means   of   retribution   or      "reprobation" for  the worst of crimes, even if its use      adds nothing to the protection of human life.           "Here we  have two  sharply  opposed  yet  similar      attitudes: for  the one  the death  penalty is  morally      excluded; for the other it is moral necessity; but both      alike are  independent  of  any  question  of  fact  or      evidence as  to what  the use of the death penalty does      by  way   of  furthering  the  protection  of  society.      Argument in  support of  views as absolute as these can      consist only  of an  invitation, on  the one  hand,  to      consider in  detail the execution of a human being, and      on the  other hand,  to consider  in detail  some awful      murder, and then to await the 157      emergence either of a conviction that the death penalty      must never  be used  or, alternatively,  that  it  must      never be completely abandoned."      The controversy over capital punishment is not new. Its roots lie  deep in human history, and  its battles have been waged on  and off  on  a  political  level  for  almost  two centuries. It  is not necessary for this Court to attempt to analyse the  substantive merits of the cases for and against the death penalty for murder. It is in my view, essentially, a question  for the  Parliament to  resolve and not for this Court to decide.      I feel  that it  is futile for us to attempt to project our personal  views in  a matter  which lies in the realm of political  decision-making,   by  focussing   on  a   single controversy, the  question of  the proper  penalty  for  the crime of  murder. The  capital punishment  controversy falls within the strict limits of ’independent’ parliamentary law- making, and  is a  typical or  representative of the kind of problems that  leaders of  Parliament  face  every  day.  In short, the  case for  abolition of  the  death  sentence  is

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political, not  constitutional. The  Government carries  the responsibility of  law and  order. That  is  the  first  and fundamental duty  of any  Government. The  Executive has the duty of  advising the  Government of  the laws  it  believes necessary for the national well-being. It is the duty of the courts, including this Court, to administer the laws as they are.      The Law  Commission, in  its  Thirty-fifth  Report  has dealt with  the question of abolition of capital punishment, of limiting the scope of death sentence under s. 302, and of the  mode   of  execution  of  the  sentence.  It  sent  out questionnaires. Almost  all the  State Governments, all High Court  Judges,  all  the  Bar  Associations  throughout  the country,  many  distinguished  lawyers  were  in  favour  of retention of  the death sentence. There was, in fact, almost complete ’unanimity’  of view  on this complex question. The Commission examined  a large  number of  witnesses including many distinguished  Judges and lawyers and ultimately was in favour of its retention. It concluded stating that -           "Having regard  to the conditions in India, to the      variety of social upbringing of its inhabitants, to the      disparity of the level of morality and education in the      country, the  vastness of its area, to the diversity of      its  population   and  to   the  paramount   need   for      maintaining law and order, the country can not risk the      abolition of capital punishment." 158 Indeed, a  distinguished lawyer  while giving  his  evidence before the  Joint Committee  of the  Indian Penal  Code Bill thought that  the abolition  of death  sentence would  be  a dangerous experiment  and we  should continue  to have  this form of  deterrent punishment till we reach "a certain state of enlightenment".      The basic  principle of  the nineteenth  century Indian Penal Code,  said Lord  Macauley who  drafted  it,  is  ’the principle of  suppressing crime  with the  smallest possible amount  of   suffering(1)  ’.   He  lays  this  down  as  an unassailable axiom rather than as a contention for debate.      Section 302  of the  Indian Penal  Code, 1860 gives the Court a discretion as to the punishment to be imposed for an offence of  murder and  that discretion  has to be exercised between the  two alternatives  mentioned, namely, a sentence of death  and a  sentence of imprisonment for life. Prior to the amendment  of s. 367, sub-s. (5) of the Code of Criminal Procedure, 1898  by the  Criminal Procedure Code (Amendment) Act, 1955  it was  a well  settled principle  that  where  a person was convicted for an offence of murder, the Court was normally bound  to sentence  him to  death unless there were extenuating  or  mitigating  circumstances.  This  rule  was stated in Rattanlal’s Law of Crimes, 21st ed., p. 813;      "The extreme  sentence  is  the  normal  sentence;  the      mitigated sentence  is the exception. It is not for the      Judge to  ask him  self whether  there are  reasons for      imposing the  penalty of  death   but whether there are      reasons for abstaining from doing so      The reason  probably was  that this  provision was  not more than  the restatement of the law as it stood in England at that  time, where till the year 1965 the only penalty for murder was death, except in two specific cases.      The effect  of the  Criminal Procedure Code (Amendment) Act, 1955,  which repealed  s. 367,  sub-s. (5)  of the Code with effect  from January  1, 1956,  was to  restore to  the Court the  discretion conferred  by  s.  302  to  award  the appropriate  sentence   having  regard   to  the   attendant circumstances, including  the mitigating  circumstances,  if

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any.  This   brought  the   law  into  conformity  with  the intentions of  the framers of the Code. As regards the death sentence, far  from making  it the  normal sentence  for  an offence  of   murder,  they  stated  that  it  ought  to  be ’sparingly used’.  Under s.  354, sub-s.  (3) of the Code of Criminal Procedure, 1973, the law is now entirely changed. 159      Under s.  354, sub-s.  (3)  of  the  Code  of  Criminal Procedure, 1973,  the Court is required to state the reasons for a  sentence awarded,  and in the case of imposition of a sentence of  death and Judge has to record "special reasons" for imposing death sentence. Punishment for murder as a rule should be  life imprisonment  and death  sentence is only an exception. In  Balwant  Singh’s  case,  Ambaram’s  case  and Sarveshwar Prasad  Sharma’s case  the Court held that it was neither necessary  nor  possible  to  specify  the  "special reasons" which  may justify the passing of death sentence in a given case.      It would  thus be  obvious that  it is neither feasible nor legally  permissible for  this Court  to give a definite connotation to the expression "special reasons" occurring in s. 354,  sub-s. (3) of the Code of Criminal Procedure, 1973. It is  difficult to  put "special  reasons" in  a  straight- jacket. Each  case must  depend on its own particular facts. The question  of sentence  must, in  my view, be left to the discretion of  the Sessions  Judge trying the accused. Under the present  Code, a  trial for  murder is  divided into two stages. There  is a  bifurcated trial. The first part of the trial is directed solely to the issue of guilt or innocence, and concludes with the finding of the Sessions Judge on that issue. At the end of the trial when he comes to a conclusion of guilt, he has to adjourn the case for hearing the accused on the question of sentence.      Section  235,  sub-s.  (2)  of  the  Code  specifically provides for an opportunity of hearing to the accused on the question of  sentence after  a verdict  of guilt is recorded against him.  The burden is upon the prosecution to make out a case  for imposition  of  the  extreme  penalty.  Where  a sentence of  death is passed, the Sessions Judge has to make a reference  to the  High Court  under s. 366, sub-s. (1) of the Code.  Under s. 367, sub-s. (1) if the High Court thinks a  further  inquiry  should  be  made  into,  or  additional evidence taken  upon, any  point bearing  upon the  guilt or innocence of  the convicted person, it may make such inquiry or take  such evidence  itself, or  direct it  to be made or taken by the Court of Sessions. In a case submitted under s. 366, the  High Court  under s. 368(a) may either confirm the sentence, or  pass  any  other  sentence,  i.e.  reduce  the sentence of  death into a sentence of imprisonment for life. Thereafter, an  appeal lies to this Court by a special leave under Article 136 on the question of sentence.      Failing the  appeal, there  is the President’s power to grant reprieve  and pardon  under Article  72(1), as well as the Governor’s power of 160 commutation under Article 161 of the Constitution which is a sovereign function.  The power  of the  President and of the Governor to  grant reprieves  and pardons  is wide enough to include the  power to  commute  and  to  remit  sentence  of punishment. All  cases of  capital  punishment  are  closely scrutinised by  the Executive  at both  the  levels  to  see whether there  are such  extenuating circumstances  as would justify a  reprieve,  and  the  power  to  commute  a  death sentence is  freely exercised,  whenever there is some doubt as to  the severity  of the  punishment. Under  the  present

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system the prerogative of Mercy in the case of persons under sentence  of  death  works  well  and  it  produces  results generally regarded  as satisfactory.  It helps in mitigating the rigour  of the  death sentence,  particularly in case of those murderers  whose execution  would  offend  the  public conscience. Very  few persons  under a sentence of death-may be one  or two  in a  year, in a State are usually executed. Such cases  are usually  of the  kind indicated by me above, and even some of them escape the sentence of death.      It is,  therefore, not  proper for  the Court to trench upon the  President’s or the Governor’s prerogative to grant pardon or  reprieve under  Articles 72(1) and 161, in taking upon itself  the task  of commutation  of a  death sentence, which is properly imposed, in the facts and circumstances of a particular  case, merely because there is a doubt that the Executive may  commute the  sentence ultimately, or by one’s views as  to the  utility of  a death  penalty.  Judges  are entitled to hold their own views, but it is the bounden duty of the  Court to  impose a proper punishment, depending upon the degree  of criminality  and the  desirability to  impose such punishment as a measure of social necessity, as a means of deterring  other potential  offenders. It is only in very grave cases  where it is a crime against the society and the brutality of  the crime  shocks the judicial conscience that the Court  has the power, as well as the duty, to impose the death sentence. In view of these adequate safeguards, it can hardly be  asserted that  the sentence of death provided for an offence  of  murder  punishable  under  s.  302  is  ’de- humanising’ or that it is ’unnecessary’.      With respect,  my  learned  brother  Krishna  Iyer  J., despite his  sense of humanism, does not appear to be wholly an ’abolitionist’.  That is  the impression  I get  from his various judgments on the subject. In Ediga Anamma and Bishan Dass he  clearly accepts  that where  the crime is cruel and inhuman, a  death sentence may be called for. In the present judgment also, he observes: 161           "If the murderous operation of a die-hard criminal      jeopardises social  security in  a persistent,  planned      and perilous  fashion then his enjoyment of fundamental      rights may be rightly annihilated.           If society  does not survive, individual existence      comes to  nought. So,  one test  for  impost  of  death      sentence is  to find  out whether  the murderer  others      such a  traumatic threat  to  the  survival  of  social      order. To  illustrate,  if  an  economic  offender  who      intentionally mixes  poison in  drugs professionally or      wilfully    adulterates     intoxicating     substances      injuriously,  and  knowingly  or  intentionally  causes      death for  the sake  of private  profit such  trader in      lethal business  is a menace to social security and is,      therefore,  a   violator  of   social   justice   whose      extinction becomes necessary for society’s survival.           Supposing  a   murderous  band  of  armed  dacoits      intentionally derails  a  train  and  large  number  of      people die in consequence, if the ingredients of murder      are present  and the object is to commit robbery inside      the train,  they practise  social injustice and imperil      social security  to a degree that death penalty becomes      a necessity  if the crime is proved beyond doubt. There      may be  marginal exceptions or special extenuations but      none where this kind of dacoity or robbery coupled with      murder becomes  a contagion  and occupation, and social      security is  so gravely imperilled that the fundamental      rights of  the defendant  become  a  deadly  instrument

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    whereby many are wiped out and terror strikes community      life. Then  he ‘reasonably’  forfeits  his  fundamental      rights and takes leave of life under the law. The style      of violence  and systematic corruption and deliberately      planned economic offences by corporate top echelons are      often a  terrible technology of knowingly causing death      on a  macro scale  to  make  a  flood  of  profit.  The      definition of  murder will  often apply  to  them.  But      because of  corporate power such murderous depredations      are  not  charged.  If  prosecuted  and  convicted  for      murder, they  may earn  the extreme  penalty for taking      the lives  of innocents  deliberately for  astronomical      scales of gain.           Likewise, if  a man  is murderer,  so hardened, so      bloodthirsty, that  within the  prison and  without, he      makes no bones 162      about  killing   others  or  carries  on  a  prosperous      business in  cadavers, then  he becomes a candidate for      death sentence."      My learned  brother Krishna  Iyer J.  wants  the  death penalty to  be inflicted  in the case of three categories of criminals, namely  (1) for  white-collar offences,  (2)  for anti-social offences, and (3) for exterminating a person who is a  menace to the society, that is, a ‘hardened murderer’. Edwin H.  Stherland defines  a white-collar  offence  as  ‘a crime in  relation to  business’. (1)The  validity of white- collar crime  as a  crime  has  been  a  subject  of  severe controversy in  social studies. Now ‘white-collar crime’, as commonly understood,  means a crime committed by a person of respectability and  of high  social status  in the course of his occupational  role. It  takes in such forms as restraint of trade, mis-representation in advertising, infringement of patents, unfair labour practices, financial fraud, unethical or illegal  rebating and  violation of  trusts. It  may also take the  form of  theft, sale  and export  of entiques like sculptures, any  work of  art of  historical value,  illegal sale of narcotics and alcohol, abortion, fraudulent accident report, income-tax  frauds etc. An ‘anti-social offence’ may consist of  sale of spurious drugs, adulteration of articles of food  meant for  human consumption,  auto thefts, ‘sharp’ business practices  which do  not conform  to  the  national well-being. Some  of  these  offences  must  undoubtedly  be ruthlessly dealt  with. But  unfortunately our penal laws do not provide  for a  death sentence  for either  white collar crimes or anti-social offences, although I wish they did, at least for certain anti-social offences.      There will be general measure of agreement that some of the serious  anti-social offences  call for a death sentence viz. acts  of sabotage  by a  person who hijacks a plane and the like  and large  number of persons die or are injured in consequence, or  disrupts lines  of communications, or holds up a  train and commits armed robbery with murder inside the train. He  is a  menace to  the society and deserves a death sentence, as  his existence does not conform to the national well-being. Like-wise,  a person  who indulges  in theft  or illegal trade and export of art treasures such as invaluable monuments, paintings and sculptures of historical importance and of  priceless antiques  of what  remains of our national heritage, or  in adulteration  of articles of food meant for human  consumption,  or  in  manufacturing  and  selling  of spurious drugs,  or engages  in illegal sale in narcotics or alcohol, which  are  injurious  to  the  very  life  of  the community, also  deserves a death sentence, as in many other countries, or  at any  rate a  sentence of  imprisonment for

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life. The  same  applies  to  economic  offences  which  may disrupt the  economic life of the community as a whole, like smuggling of gold and other contraband 163 goods, which  call for  a very deterrent punishment. This is necessary to protect the basic economic order of the nation. But these are all matters for the Parliament to decide.      It may  be stated  that the  State of  West Bengal  has taken a  step forward  in that  direction. The Prevention of Adulteration of  Food, Drugs  and Cosmetics  Act, 1973 (West Bengal Act  42 of 1973 makes the offence of sale of spurious drugs, adulteration  of articles  of food  meant  for  human consumption etc., punishable with imprisonment for life.      As regards ‘hardened’ murderers, I am afraid, there are few to  be found.  Many murders unfortunately go undetected, and many  a brutal  murderer has to be acquitted for want of legal evidence  bringing his  guilt  beyond  all  reasonable doubt. Nevertheless,  when the  guilt is  proved, the  Court should leave  aside all humanitarian considerations, if, the extreme penalty  is called  for. A  ‘professional’  murderer must, as  a matter  of course, be sentenced to death because he is  a menace  to the society. Whatever sympathy the Court can have  should be  reserved for  the victims  of the crime rather than  for the  perpetrators. In  such cases,  the law must take its course.      I  do  not  intend  to  enter  upon  any  philosophical dialectics as  to the  ‘utility’ of  the death  sentence  or enter into  the controversy  whether  it  is  ‘unnecessary’, ‘brutal’ or  ‘dehumanizing’, but  I would, for my part, like to say, that I am of the opinion-with much deference for the great authority of those who think otherwise-that the weight of evidence  and reason is in favour of the retention of the death penalty.      I am  afraid, if  the Courts  were to  be guided by the classification made  by the  majority the death sentence for an offence  of murder  punishable  under  s.  302,  for  all practical purposes would be virtually non-existent.      I feel  that it  is not  necessary for  the purposes of these appeals  to refer to the Indian Penal Code (Amendment) Bill, 1976,  which by  s. 125 introduces a new s. 302 in the Indian Panel  Code, 1860.  The re-drafted  section seeks  to bring about  a change in the law. It abolishes the liability to suffer  the death  sentence on  conviction of  murder and substitutes the  sentence of imprisonment for life by sub-s. (1) except  in cases of certain first degree murders falling within sub-s.  (2) thereof.  The cases  in which  the  death sentence is  to be  retained are those where, in the view of the Government, murder is most dangerous to the preservation of law  and order, and where the death sentence is likely to be a  particularly effective  deterrent,  viz.,  pre-planned murders involving  extreme brutality  and murders  involving exceptional depravity.  The Bill is not before the Court. It is, therefore, not proper to deal with it. 164      It is,  however, necessary  to emphasise  that if there has to  be a  law reform  at all, some regard must be had to the plight  of the  victim or  his or  her family  by making provision for  payment of compensation. While it is commonly accepted that  those convicted of violations of the criminal law must  "pay their  debt to  society", little  emphasis is placed upon requiring offenders to "pay their debt" to their victims. These  again are  matters  for  the  Parliament  to provide.      From a  life time  of experience,  Sir  John  Beaumont, speaking  with   unrivalled  authority,   told   the   Royal

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Commission on  Capital Punishment(1)  that  the  alternative sentence under  s. 302  of the  Indian Penal  Code 1860  had "worked well"  in India,  and that he had never himself felt that the  responsibility of choosing between the sentence of death and  a lesser  punishment was unfair or excessive, nor had he ever heard any Judge in India express such a feeling. He expressed  the  opinion  that  there  was  "no  class  of offences in  which the  degree of  moral culpability differs more than  in case  of murder".  It is  wholly illogical  to require a  Judge to pass the same sentence in every case. In his view,  the proper  solution lies  in giving to the Judge the same discretion that he had in regard to other offences. A large body of judicial opinion still shares the same view.      If Parliament  thought it  right to  give to the Judges discretion as  to the sentence, I do not think they would or ought to  shrink from  the onerous responsibility. I feel it would not be appropriate for this Court to curtail the ambit of their  discretion by  judicial process.  We cannot but be oblivious that  a sentence  of a  wrong type,  that  is,  to substitute a  sentence of  imprisonment for  life where  the death sentence  is called  for, causes  grave miscarriage of justice. A  sentence or  pattern of sentences which fails to take due account of the gravity of the offence can seriously undermine respect for law.      Turning to the appeals before us, I cannot say that the award of  death sentence  in any  of  these  cases  was  not appropriate or  uncalled for.  In the three cases before us, there were  "special reasons"  within the meaning of s. 354, sub-s. (3)  of the  Code of Criminal Procedure, 1973 for the passing of  the death  sentence in  each and  therefore, the High Courts were justified in confirming the death sentences passed, under  368(a) of the Code. In the circumstances, any interference with  the sentence  of death, in my view, would be wholly unwarranted in each of these cases. 165      In Rajendra Prasad’s case, the Allabhabad High Court in confirming the  death sentence  observes  that  the  accused Rajendra is  a ‘desperate  character’, who after having been convicted  under   s.  302   and  undergone  a  sentence  of imprisonment for  life was released only a few days prior to the occurrence, on October 2, 1972, that is, on the occasion of Gandhi  Jayanti,  committed  the  brutal  murder  of  the deceased Mansukh by striking him with a knife.      On the  date of  occurrence, that  is, on  October  25, 1972, at  about 11  a.m. the  accused along with his brother Pooran rushed  towards Sri  Kishan, brother  of Rambharosay, armed with  a knife but Sri Kishan ran to safety and was not hurt. Later in the evening at about 5.30 p.m., the same day, while Rambharosay  and the deceased Mansukh were standing in the lane  in  front  of  Rambharosay’s  house,  the  accused suddenly appeared  and dealt several blows with the knife on vital parts  of the  body  of  Rambharosay  but  Rambharosay released himself  from his grip and ran inside his house and bolted the door. The accused chased him all the way with the blood-stained knife  and knocked  at the  door asking him to open it.  Meanwhile, the  deceased Mansukh came and tried to entreat the  accused not  to assault  Rambharosay. Thereupon the accused  struck deceased  Mansukh, who  tried to escape, but the  accused chased  him over  a distance  of 200 to 250 feet and  inflicted repeated  knife blows  on  the  deceased resulting in  his death.  The deceased  was done to death by the accused  merely because  he tried  to prevent  him  from assaulting Rambharosay.      Not only there are no mitigating circumstances but this was a  pre-planned, cold-blooded  murder. While Rajendra was

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in jail,  his family members used to wield out a threat that the members of the family of Rambharosay would be dealt with after Rajendra is released from jail.      The case  of this  accused is destructive of the theory of reformation.  The ‘therapeutic touch’ which it is said is the best  way of  preventing repetition  of the  offence has been of  no avail.  Punishment must  be designed  so  as  to deter, as  far  as  possible,  from  commission  of  similar offences. It should also serve as a warning to other members of society.  In both respects, the experiment of reformation has  miserably  failed.  I  am  quite  sure  that  with  the commutation of his death sentence, the accused will commit a few more  murders and  he would again become a menace to the community.      In Kunjukunju Janardhanan’s case, the Kerala High Court while confirming  the death sentence of the accused observes that he  acted, with  extreme depravity.  Infatuated by  the charm of a village girl, Smt. 166 Santhamma, then  aged about 21 years, the accused Kunjukunju Janardhanan, aged  28 years,  committed the brutal murder of his innocent  wife, Smt. Chandramathi, aged 26 years and his two minor sons, Sunil aged 7 and Manoj aged 5 at the dead of night while they were sleep by repeatedly striking them with a sharp-edged  deadly weapon.  It redounds  to the credit of Smt. Santhamma,  P.W. 2,  the village  girl, with  whom  the accused was  on terms  of illicit intimacy, that she used to entreat him  in her  letters not  to court  her as  it would destroy the  happiness of  his family.  It was then that the accused  wrote   the  letter,   Ext.  P-2,   that  he  would exterminate his  wife and  children once  for all so that he may live happily with her.      I fail  to understand  what is  meant by  the  ‘eternal triangle’ as  a mitigating  circumstance. The  accused,  who acted as  a monster,  did not  even spare  his two  innocent minor children  in order  to get  rid of his wife and issues through her.  If the death sentence was not to be awarded in a case  like this  I do  not see  the type  of offence which calls for a death sentence.      In Sheo  Shankar Dubey’s case, the Allahabad High Court has found  the accused  Sheo Shankar guilty of triple murder and rightly  confirmed the  sentence of death passed on him. The accused  Sheo Shankar murdered his uncle Narottam Dubey, and his two sons Chandra Bhushan and Chandra Shekher.      On the date of occurrence, i.e., on June 15, 1976 after there was  a partition of the joint family lands between the deceased Narottam  and Purushottam,  father of  the  accused Sheo Shankar,  there was  a dispute  regarding  division  of three bataulis.  The three  bataulis could  not  be  equally divided because  they were  of different  sizes. The accused insisted that  they should  be broken  and then partitioned. Smt. Vidyawati  widow of  Narottam, in  fact, in  trying  to pacify  her  brother-in-law  Purushottam,  brought  out  one batauli and  the remaining  two were  taken out  by  Chandra Shekhar. It  all happened over the act of Chandra Shekher in flinging the  two bataulis  on  the  ground  which  collided making a  sound showing  his resentment.  The expression  of resentment  implicit  in  the  gesture  of  Chandra  Shekhar infuriated the  accused Sheo  Shankar to such an extent that he committed  the three murders in a row. These were nothing but first-degree murders.      The weapon used by the accused in committing the crime, the manner  in which  the operation was carried out, and the determination with  which the  accused acted, as well as the number of  injuries inflicted  on the  unfortunate  victims,

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give a clear picture of the cruelty and brutality 167 with which  the accused murdered his uncle and his two sons. He first  inflicted a knife blow on his uncle Narottam Dubey who tried  to run  away and  as he turned, the accused dealt him another  knife blow  resulting in his death on the spot. Narottam Dubey,  it appears,  attempted his  best to escape. Even after  he had  sustained bleeding injuries at the hands of the  accused, he  made an  effort to  run away but he was chased by  the accused  and the  accused finished the victim with grim determination. His cousin Chandra Bhushan tried to intercept with a view to protect the life of his aged father but he was even not spared by the accused who struck a fatal blow on  the chest.  The second cousin, Chandra Shekher, who moved forward  to save his brother was chased by the accused who also  finished him  of by a stroke of the blade of knife he wielded.      It was  no doubt  a trifling incident over the division of three betaulis resulting in the triple murder. It is said that the  murders were  not ‘pre-meditated’ but committed in the heat  of passion  over a  ‘family feud’. But that hardly furnishes a  justification for  the extreme  brutality  with which the accused acted.      There is  no inexorable  rule that  either the  extreme youth of  the accused or the fact that he acted in a heat of passion must  always irrespective  of the  enormity  of  the offence or  otherwise be  treated as a sufficient ground for awarding the  lesser punishment.  The Court has to take into consideration all  the circumstances  which do not merit the extreme penalty.  I find that in the facts and circumstances of this particular case, these factors cannot outweigh other considerations. Three  precious lives  have been lost by the dastardly act of the accused. A family has been wiped off.      The death sentence was clearly called for in this case- firstly,  as   a  threat   or  warning  to  deter  potential murderers,  and  secondly,  as  the  guarantee  against  the brutalisation of human nature. The grim determination of the accused to  bring the entire operation to the end desired by him is  also reflected  in the  manner of  his repelling the interception of  Chandra Bhushan  who went  to the rescue of his father  and Chandra  Shekher who  tried  to  rescue  his brother Chandra  Bhushan, the  unfortunate  victims  of  the murderous assault.  All these facts and circumstances, to my mind, constitute ‘special reasons’ why the accused should be sentenced to death.      In retrospect,  I venture to say that in these appeals, it cannot  be asserted  that the  award of death sentence to the appellants  was ‘erroneous  in principle’. Nor can it be said that the sentence of death passed on them was arbitrary or excessive  or  indicative  of  an  improper  exercise  of discretion. It  is the  duty of the Court to impose a proper punishment, 168 depending upon the degree of criminality and desirability to impose such  punishment as a measure of social necessity, as a means  of deterring  other potential offenders. Failure to impose a  death sentence  in such  grave cases where it is a crime against  the society-particularly  in cases of murders committed with  extreme brutality,  will bring to nought the sentence of  death provided  by s.  302 of  the Indian Penal Code, 1860.  To allow  the appellants  to  escape  with  the lesser punishment after they had committed such intentional, cold-blooded, deliberate and brutal murders will deprive the law of its effectiveness and result in travesty of justice.      I would,  therefore,  for  these  reasons  dismiss  the

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appeals. The appellants are at liberty to apply for reprieve for commutation  of their sentence which is an executive act of clemency.                            ORDER      In the  light of  the opinion of the majority the death sentence in  each of these appeals is commuted to a sentence of imprisonment for life. P.B.R. 169