http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: SMT. SHASHI NAYAR

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT29/10/1991

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) SAWANT, P.B. KASLIWAL, N.M. (J) JEEVAN REDDY, B.P. (J) RAY, G.N. (J)

CITATION:  1992 AIR  395            1991 SCR  Supl. (2) 103  1992 SCC  (1)  96        JT 1991 (4)   196  1991 SCALE  (2)919

ACT:     Constitution  of India, 1950: Article 32--Writ  petition by wife of condemned prisoner---Capital punishment--  Justi- fication of--Hanging by neck--Scientific and less painful.     Constitution  of India, 1950:Article 21 ---Death  penal- ty---Awarding--Not unconstitutional.

HEADNOTE:     The  petitioner’s husband was tried under  Section  302, IPC for having killed his father and step brother. The Sessions Judge convicted awarding sentence of death.     On  appeal, the High Court confirmed the  death  penalty against which a special leave petition before this Court was filed and same was also dismissed. The Review Petition filed by him was also dismissed.     His mercy petitions filed before the Governor of Jammu & Kashmir and the President of India, were rejected. He  chal- lenged  the  order of the President of india  rejecting  the mercy  petition before this Court in a writ  petition  under Article 32 of the Constitution, which was also dismissed.     Another writ petition under Article 226 of the Constitu- tion  was  filed before the Jammu & Kashmir High  Court  for quashing  the sentence imposed on him. The High  Court  dis- missed the same.     The husband of this petitioner, the condemned  prisoner, was to be hanged on 26.10.1991.     The petitioner, filed the present petition under Article 32  of  the  Constitution challenging the  validity  of  the capital punishment 104 with  a prayer for the quashing of the sentence  awarded  to her husband.       The  petition was entertained by a Division  Bench  on 25.10.91  and  the matter was referred to  the  Constitution Bench for consideration staying the execution of the condem- ned prisoner.       Petitioner  contended  that  capital  punishment   was violative of Article 21 of the Constitution of India as  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

Article absolutely prohibits deprivation of a person’s life; that capital punishment did not serve any social purpose and the  barbaric penalty of death should not be awarded to  any person  as it had no deterrent effect; that the  penalty  of death sentence had a dehumanising effect on the close  rela- tions of the victims and it deprived them of their fundamen- tal rights under Article 21 of the Constitution, to a  mean- ingful  life;  that the execution of capital  punishment  by hanging  was  barbaric  and dehumanising and  it  should  be substituted by some other decent and less painful method  in executing the sentence. Dismissing the petition, this Court,       HELD: 1. The capital punishment as provided by the law is to be awarded in rarest of the rare cases. The  procedure established by law for awarding the death penalty is reason- able  and  it  does not in any way violate  the  mandate  of Article 21 of the Constitution. Hanging by neck was a scien- tific  and one of the least painful methods of execution  of the death sentence. [106 G, 107 F]      2. The death penalty has a deterrent effect and it does serve  a social purpose, having regard to the social  condi- tions  in  our country the stage was not ripe for  taking  a risk of abolishing it. [107 C-D]      3. A judicial notice can be taken of the fact that  the law  and  order situation in the country has  not  only  not improvided  since 1967 but has deteriorated over  the  years and is fast worsening today. The present is, therefore,  the most inopportune time to reconsider the law on the  subject. [107 E]      Jagmohan Singh v. State of U.P.,[1973] 1 SCC 20; Bachan Singh v. State of Punjab, [1979] 3 SCC 727; Deena alias Deen Dayal  & Ors. etc. etc. v. Union of India & Ors. etc.  etc., [1983] 4 SCC 645, referred to. 105

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition(Criminal)No. 1339 of 1991. (Under Article 32 of the Constitution of India).     R.K:  Jain,  A.  Mariarputham, Ms.  Aruna  Mathut,  Udai Lalit,  Shankar  C. Ghosh and Ms. Chanchal Ganguli  for  the Petitioner. The Judgment of the Court was delivered by     K.N. SINGH, J. Smt. Shashi Nayar wife of Raj Gopal Nayar who  has been awarded death sentence for offence under  Sec- tion  302  of the Indian Penal Code [’IPC’  for  short]  has approached this Court by means of this petition under  Arti- cle  32 of the Constitution challenging  the  constitutional validity of death penalty.     Raj Goapal Nayar, the petitioner’s husband was tried for offence under Section 302, IPC for having killed his  father and  step  brother. The Sessions Judge by his  judgment  and order dated 24.4.1986 convicted Raj Gopal Nayar and  awarded sentence  of death. On appeal, the High Court confirmed  the death  penalty and dismissed Raj Gopal’s appeal against  the order  of the Sessions Judge. Raj Gopal thereafter  filed  a special  leave  petition before this Court  challenging  the judgment and order of the Sessions Judge and the High Court, but  the special leave petition was also dismissed  by  this Court.  Review  petition filed by him  was  also  dismissed. Consequently, his conviction and the sentence of death stood confirmed  by  all  the courts. Thereupon,  he  filed  mercy petitions  before  the Governor of Jammu & Kashmir  and  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

President  of India, but the same were rejected.  ’He  chal- lenged  the  order of the President of India  rejecting  the mercy petition before this Court by means of a writ petition under Article 32 of the Constitution, but the same was  also dismissed.  Another writ petition under Article 226  of  the Constitution was filed before the Jammu & Kashmir High Court for  quashing the sentence imposed on him but the  same  was also  rejected.  As the legal proceedings before  the  court failed,  he  was  to be hanged on  26.10.1991.  Smt.  Shashi Nayar, the petitioner, thereupon filed the present  petition under  Article  32  of the Constitution  before  this  Court challenging  the validity of the capital punishment  with  a prayer for the quashing of the sentence awarded to Raj Gopal Nayar.  The petition was entertained by a Division Bench  on 25.10.1991  and the matter was referred to the  Constitution Bench for consideration, and meanwhile the execution of  the condemned prisoner was stayed.     Mr.  Ravi  K. jain, learned counsel for  the  petitioner made the following submissions: 106                 (1)  Capital  punishment  is  violative   of               Article 21 of the Constitution of India as the               Article absolutely prohibits deprivation of  a               person’s life.                 (2)  Capital punishment does not  serve  any               social  purpose  and  in the  absence  of  any               study,  the barbaric penalty of  death  should               not  be  awarded to any person as  it  has  no               deterrent effect.                 (3)  The  penalty of death  sentence  has  a               dehumanising effect on the close relations  of               the  victims  and it deprives  them  of  their               fundamental  rights  under Article 21  of  the               Constitution, to a meaningful life.                 (4)  The execution of capital punishment  by               hanging  is  barbaric and  dehumanising.  This               should  be substituted by d some other  decent               and less painful method in executing the               sentence.  The questions raised by Shri Jain have already been consid- ered by this Court in detail on more than one occasion.   In Jagmohan  Singh  v.  State of U.P.,[1973] 1 SCC  20  and  in Bachan  Singh  v. State of Punjab, [1979] 3  SCC  727,  this Court has on a detailed consideration, held that the capital punishment does not violate Article 21 of the  Constitution. In Bachan Singh’s case (supra), the court considered all the questions raised in this petition except question No.4,  and the  majority judgment rejected the same by a detailed  rea- soned order. Since we fully agree with those reasons, we  do not consider it necessary to reiterate the same.     Learned  counsel  further urged that the view  taken  in Jagmohan Singh’s and Bachan Singh’s cases (supra) is  incor- rect and it requires reconsideration by a larger Bench.  He, therefore,  requested  us to refer the matter  to  a  larger Bench  as the question relates to the life of a citizen.  He urged that the award of death penalty is a serious matter as it deprives a citizen of his life in violation of Article 21 of  the Constitution and as such the court  should  consider the  matter again. We are fully conscious of the  effect  of the  award of capital punishment. But we are of the  opinion that the capital punishment as provided by the law is to  be awarded  in rarest of the rare cases as held by this  Court. The  procedure  established by law for  awarding  the  death penalty is reasonable and it does not in any way violate the mandate  of Article 21 of the Constitution. Since  we  agree

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

with  the view taken by the majority in Bachan  Singh’s  and Jagmohan  Singh’s  cases (supra), we do not find  any  valid ground to refer the matter to a larger Bench. Learned  coun- sel  urged that the majority opinion in Bachan Singh’s  case (supra) was founded upon the 35th Report of the Law  Commis- sion submitted in 1967, which summarises the recommendations in the following words: 107               "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  coun-               try,  to  the  vastness of its  area,  to  the               diversity  of its population and to the  para-               mount  need for maintaining law and  order  in               the  country  at the  present  juncture  India               cannot  risk  the experiment of  abolition  of               capital punishment."     Shri Jain urged that the above Report indicates that  in 1967 the Law Commission was of the opinion that the  country should  not  take  the risk of  experimenting  abolition  of capital  punishment.  However,  since then  much  water  has flown.   Further,  there is no empirical  study  before  the Court to show that the situation which prevailed in 1967  is still  continuing.  Hence, the Court should  reconsider  the matter.  We  do not find any merit in this  submission.  The death  penalty  has a deterrent effect and it does  serve  a social purpose. The majority opinion in Bachan Singh’s  case (supra) held that having regard to the social conditions  in our  country  the stage was not ripe for taking  a  risk  of abolishing it. No material has been placed before us to show that  the view taken in Bachan Singh’s case(supra)  requires reconsideration. Further, a judicial notice can be taken  of the fact that the law and order situation in the country has not  only not improved since 1967 but has deteriorated  over the  years  and  is fast worsening today.  The  present  is, therefore, the most in opportune time to reconsider the  law on the subject.  Hence the request for referring the  matter to a larger Bench is rejected.     As  regards the method of execution of the capital  pun- ishment by hanging, this Court considered the same in detail in  Deena  alias Deen Dayal & Ors. etc. etc.,  v.  Union  of India  &  Ors.  etc. etc., [1983] 4 SCC 645  and  held  that hanging by neck was a scientific and one of the least  pain- ful  methods of execution of the death sentence. We find  no justification for taking a different view. Shri Jain, howev- er, brought to our notice that a learned Judge of this Court while sitting during vacation had issued notice to the State on the question as to whether the execution by hanging is  a cruel and unusual procedure. Hence, he urged that we  should entertain  this petition and reconsider the question.  Since the question of the mode of execution of capital  punishment has  already been considered in detail by this Court m  Deen Dayal’s case (supra), we do not find any good reason to take a different view.     The  question  of  reasonableness in the  award  of  the capital punishment to Raj Gopal Nayar has been considered by the High Court and this 108 A   Court  at various stages and consistently  it  has  been answered against the prisoner. Hence the petition fails  and is accordingly dismissed. Interim relief order dated  25.10. 1991 is vacated. V.P.R.                                              Petition dismissed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

109