TMI Blog1980 (5) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts found by the courts below would be special reasons for awarding, the death sentence as required under Section 354(3) of the CrPC, 1973. 4. Shri H. K. Puri, appearing as amicus curiae on behalf of the appellant, Bachan Singh, in Criminal Appeal No. 273 of 1979, contended that in view of the ratio of Rajendra Prasad v. State of U. P. (1979) 3 SCR 646, the courts below were not competent to impose the extreme penalty of death on the appellant It was submitted that neither the circumstance that the appellant was previously convicted for murder and committed these murders after he had served out the life sentence in the earlier case, nor the fact that these three murders were extremely heinous and inhuman, constitutes a special reason for imposing the death sentence within the meaning of Section 354(3) of the CrPC, 1974. Reliance for this argument was placed on Rajendra Prasad (ibid) which, according to the counsel, was on facts very similar, if not identical, to that case. 5. Kailasam, J. was of opinion that the majority view in Rajendra Prasad taken by V.R. Krishna Iyer, J., who spoke for himself and D.A. Desai, J., was contrary to the judgment of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 354(3), Criminal P. C., the human rights and humane trends in the Constitution. So examined, the right to life and the fundamental freedoms is deprived when he is hanged to death, his dignity is defiled when his neck is noosed and strangled. 7. Against the above, Kailasam, J. commented : The only change after the Constitution Bench delivered its judgment is the introduction of Section 354(3) which requires special reasons to be given if the court is to award the death sentence. If without the restriction of stating sufficient reasons death sentence could be constitutionally awarded under the I. P. C. and Criminal P. C. as it stood before the amendment, it is difficult to perceive how by requiring special reasons to be given the amended section would be unconstitutional unless the sentencing sector is made restrictive and least vagarious . (v) In Rajendra Prasad, the majority has held that: such extraordinary 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Hon'ble the Chief Justice, for constituting a large Bench to resolve the doubts, difficulties and inconsistencies pointed out by Kailasam, J. 10. In the meanwhile, several persons convicted of murders and sentenced to death, filed writ petitions (namely, Writ Petitions 564, 165, 179, 434, 89, 754, 756 and 976 of 1979) under Article 32 of the Constitution directly challenging the constitutional validity of the death penalty provided in Section 302 of the Indian Penal Code for the offence of murder, and the sentencing procedure provided in Section 354(3) of the CrPC, 1974. That is how, the matter has now come up before this larger Bench of five Judges. 11. At the outset, Shri R. K. Garg submitted with some vehemence and persistence, that Jagmohan's case needs reconsideration by a larger Bench if not by the Full Court. Reconsideration of Jagmohan, according to the learned Counsel, is necessitated because of subsequent events and changes in law. Firstly, it is pointed out that when Jagmohan was decided in 1972, the then extant CrPC, 1898 left the choice between death and life imprisonment as punishment for murder entirely to the discretion of the Court. This posi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Mukhoty, Dave and R. K. Jain, appearing for intervenes or for the other writ-petitioners. 16. We have also heard the arguments of Shri Soli Sorabji, Solicitor-General, appearing for the Union of India and Shri Patel appearing for the State of Maharashtra and the other counsel appearing for the respondents. 17. The principal questions that fall to be considered in this case are: (i) Whether death penalty provided for the offence of murder in Section 302, Penal Code is unconstitutional. (ii) If the answer to the foregoing question be in the negative, whether the sentencing procedure provided in Sec, 354(3) of the CrPC, 1973 (Act 2 of 1974) is unconstitutional on the ground that it invests the Court with unguided and untrammelled discretion and allows death sentence to be arbitrarily or freakishly imposed on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code with death or, in the alternative, with imprisonment for life. 18. We will first take up Question No. (I) relating to the constitutional validity of Section 302, Penal Code. Question No. (I): 19. Before dealing with the contentions canvassed, it will be use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused, or Thirdly, - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly, - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 23. The first contention of Shri Garg is that the provision of death penalty in Section 302, Penal Code offends Article 19 of the Constitution. It ii submitted that the right to live is basic to the enjoyment of all the six freedoms guaranteed in Clauses (a) to (e) and (g) of Article 19(1) of the Constitution and death penalty puts an end to all these freedoms; that since death penalty serves no social purpose and its value as a deterrent remains unproven and it defiles the dignity of the individual so solemnly vouchsafed in the Preamble of the Constitution, its imposition must be regarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he right conferred by the said sub-clause, and in particular, nothing in the said sub-clause, shall affect me operation of any existing law in so far as it relates to, or prevent the State from-making any law relating to,- (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or sex-vice, whether to the exclusion, complete on partial, of citizens or otherwise. 25. It will be seen that the first part of the Article declares the rights in Clause (1) comprising of six Sub-clauses namely, (a) to (e) and (g). The second part of the Article hi its five Cls. (2) to (6) specifies the limits up to which the abridgement of the rights declared in one or more of the Sub-clauses of Clause (1), may be permitted. Broadly speaking, Article 19 is intended to protect the rights to the freedoms specifically enumerated in the six Sub-clauses of Clause (1) against State action, other than in the legitimate exercise of its power to regulate these rights in the public interest relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution Bench in the State of Bombay v. R.M.D. Chamarbaugwala 1957 SCR 874 at p. 920. In that case the constitutional validity of certain provisions of the Bombay Lotteries and Prim Competition Control Act, 1952, as amended by Bombay Act No. XXX of 1952, was challenged on the ground, inter alia, that it infringes the fundamental rights of the promoters of such competitions under Article 19(1)(g), to carry on their trade of business and that the restrictions imposed by the said Act cannot possibly be supported at reasonable restrictions in the interest of the general public permissible under Article 19(b). It was contended that the words trade of business or commerce in Sub-clause (g) of Article 19(a) should be read in their widest amplitude as any activity which is undertaken or carried on with a view to earning profit, since there is nothing in Article 19(1)(g) which may qualify or cut down the meaning of the critical words; that there is no justification for excluding from the meaning of those words activities which may be looked upon with disfavour by the State or the Court as injurious to public morality or public interest. Speaking for the Constitution Bench, S. R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under the Penal Code which injure specific individuals and do not affect the community or the public at large). Unless such conclusion necessarily follows from the article, it is obvious that such construction should be avoided. In my opinion, such result is clearly not the outcome of the Constitution. (The underlined words within brackets supplied.) (At page 100 of the Report). (ii) Judged by the test of direct and indirect effect on the rights referred to in Article 19(1), the Penal Code is not a law imposing restrictions on these rights. The test is that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub-clauses. If there is a legislation directly attempting to control a citizen's freedom of speech or expression, of his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of Article 19 will arise. If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these sub-clauses is abridged, the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttorney General, the learned Judge held that Clauses (4) to (7) of Article 22 do not form a complete Code and that the language of Article 21 is perfectly general and covers deprivation of personal liberty or incarceration, both for punitive and preventive reasons. (Page 207). 35. Mahajan, J., however, adopted a different approach. In his judgment, an examination of the provisions of Article 22 clearly suggests that the intention was to make it self-contained as regards the law of preventive detention and that the validity of a law on the subject to preventive detention cannot be examined or controlled either by the provisions of Article 21 or by the provisions of Article 19(5). (Page 229). 36. Mukerjea, J. explained the relative scope of the Articles in this group thus: To me it seems that Article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality. On the other hand, Articles 20, 21 and 22 are primarily concerned with penal enactments or other laws under which personal safety or liberty of persons could b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Penal Code under which the sentence was passed, cannot be challenged on the ground of Article 19, thus: Because the freedom of his person having been lawfully taken away, the convict ceases to be entitled to exercise...any of the...rights protected by Clause (1) of Article 19. (iii) The learned Judge also held that Article 19 protects some of the important attributes of personal liberty as independent rights and the expression 'personal liberty' has been used in Article 21 as a compendious term including within its meaning all the varieties of rights which go to make op the personal liberties of men. (Page 299) 38. Fazal Ali, J. dissented from the majority. In his opinion: It cannot be said that Articles 19, 20, 21 and 22 do not to some extent overlap each other. The case of a person who is convicted of an offence will come under Articles 20 and 21 and also under Article 22 so far as his arrest and detention in custody before trial are concerned. Preventive detention, which is dealt with in Article 22, also amounts to be privation of personal liberty which is referred to in Article 19(1)(d). (Page 148). 39. Fazal Ali, J. held that since preventive detenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever other obstacle may be in his way.(Page 146) 41. We have copiously extracted from the judgments in A.K. Gopalan's case, to show that all the propositions propounded, arguments and reasons employed or approaches adopted by the learned Judges in that case, in reaching the conclusion that the Indian Penal Code, particularly those of its provisions which do not have a direct impact on the rights conferred by Article 19(1), is not a law imposing restrictions on those rights, have not been overruled or rendered bad by the subsequent pronouncements of this Court in Bank Nationalization case or in Maneka Gandhi's case . For instance, the proposition laid down by Kania, C. J., Fazal Ali, Patanjali Sastri and S.R. Das, JJ. that the Indian Penal Code particularly those of its provisions which cannot be justified on the ground of reasonableness with reference to any of the specified heads, such as public order in Clauses (2), (3) and (4), is not a law imposing restrictions on any of the rights conferred by Article 19(1), still holds the field. Indeed, the reasoning, explicit or implicit, in the judgments of Kania, C. J., Patanjali Sastri and S. R. Das JJ. that such a construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, be avoided. Thus construed, Article 19 will be attracted only to such laws, the provisions of which are capable of being tested under Cls. (2) to (5) of Article 19. 43. This proposition was recently (1975) reiterated in Hardhan Shah v. State of West Bengal . In accord with this line of reasoning in A.K. Gopalan's case a Constitution Bench of this Court in Hardhan Saha's case restated the principle for the applicability of Article 19 by drawing a distinction between a law of preventive detention and a law providing punishment for commission of crimes, thus: Constitution has conferred rights under Article 19 and also adopted preventive detention to prevent the greater evil of elements imperilling the security, the safety of a State and the welfare of the nation. It is not possible to think that a person who is detained will yet be free to move or assemble or form association or unions or have the right to reside in any part of India or have the freedom of speech or expression. Suppose a person is convicted of an offence of cheating and prosecuted (and imprisoned) after trial, it is not open to say that the imprisonment should be tested with reference to Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e', which was adopted by Kania, C. J. and Fazal Ali, J. in A.K. Gopalan's case. In our opinion, the answer to this question cannot be in the affirmative. In the first place, there is nothing much in the name. As Varadachariar, J. put it in Subrahmanyan Chettiar's case, 1940 FCR 188, such rules of interpretation were evolved only as a matter of reasonableness and common sense and out of the necessity of satisfactorily solving conflicts from the inevitable overlapping of subjects in any distribution of powers. By the same yardstick of common sense, the 'pith and substance rule' was applied to resolve the question of the constitutionality of a law assailed on the ground of its being violative of a fundamental right. 48. Secondly, a survey of the decisions of this Court since A.K. Gopalan, shows that the criterion of directness which is the essence of the test of direct and indirect effect, has never been totally abandoned. Only the mode of its application has been modified and its scope amplified by judicial activism to maintain its efficacy for solving new constitutional problems in tune with evolving concepts of rights and obligations in strident democracy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bridge the freedom of speech or expression enjoyed by the petitioners and, therefore, the impugned Act could not come within the prohibition of Article 19(1)(a) read with Article 32 of the Constitution. 52. On the other hand, the petitioners took their stand on a passage in the decision of the Supreme Court of United States in Minnesota Ex Rel. Olson, (1930) 283 US 697 at p. 708, which was as under With respect to these contentions it is enough to say that in passing upon constitutional questions the Court has regard to substance and not to mere matters of form, and that, in accordance with familiar principles, the statute must be tested by its operation and effect . It was further submitted that in all such cases, the Court has to look behind the names, forms and appearances to discover the true character and nature of the legislation. Thus considered, proceeded the argument, the Act by laving a direct and preferential burden on the press, would tend to curtail the circulation, narrow the scope of dissemination of information and fetter the petitioners' freedom to choose the means of exercising their rights of free speech (which includes the freedom of the press). It was fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not discard the test adopted by Kania, C.J., in A.K. Gopalan, in its entirety: he merely extended the application of the criterion of directness to the operation and effect of the impugned legislation. 55. Again, in Sakal Papers (P). Ltd. v. The Union of India . this Court, while considering the constitutional validity of the Newspaper (Price and Page) Act, 1956, and Daily Newspaper (Price and Page) Order, 1960. held that the ''direct and immediate effect of the impugned Order would be to restrain a newspaper from publishing any number of pages for carrying its news and views, which it has a fundamental right under Article 19(1)(a) and, therefore, the Order was violative of the right of the newspapers guaranteed by Article 19(1)(a), and as such, invalid. In this case, also, the emphasis had shifted from the object and subject-matter of the impugned State action to its direct and immediate effect. 56. In Naresh Shridhar Mirajkar v. State of Maharashtra . an order prohibiting the publication of the evidence of a witness in a defamation case, passed by a learned Judge (Tarkunde, J.) of the Bombay High Court, was impugned on the ground that it violated the petitioners&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view to do Justice between the parties. If, incidentally, as a result of this order, the petitioners were not able to report what they heard in court, that cannot be said to make the impugned order invalid under Article 19(1)(a). 57. We have already mentioned briefly how the test of directness was developed and reached its culmination in Bank Nationalization's case and Maneka Gandhi's case. 58. From the above conspectus, it is clear that the test of direct and indirect effect was not scrapped. Indeed, there is no dispute that the test of 'pith and substance' of the subject-matter and of direct and of incidental effect of legislation is a very useful test to determine the question of legislative competence, i.e., in ascertaining whether an Act falls under one Entry while incidentally encroaching upon another Entry. Even for determining the validity of a legislation on the ground of infringement of fundamental rights, the subject-matter and the object of the legislation are not altogether irrelevant. For instance, if the subject-matter of the legislation directly covers any of the fundamental freedoms mentioned in Article 19(1), it must pass the test of reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommit any offence whatsoever. Therefore, penal laws, that is to say, laws which define offences and prescribe punishment for the commission of offences do not attract the application of Article 19(1). We cannot, of course, say that the object of penal laws is generally such as not to involve any viola-Bon of the rights conferred by Article 19(1) because after the decision of this Court in [he Bank Nationalisation case the theory, that the object and form of the State action alone determine the extent of protection that may be claimed by an individual and that the effect of the State action on the fundamental, right of the individual is irrelevant, stands discredited. But the point of the matter is that, in pith and substance, penal laws do not deal with the subject matter of rights enshrined in Article 19(1). That again is not enough for the purpose of deciding upon the applicability of Article 19 because as the test formulated by us above shows, even if a law does not, in its pith and substance, deal with any of the fundamental rights conferred by Article 19(1), if the direct and inevitable effect of the law is such as to abridge or abrogate any of those rights, Article 19(1) shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess and public interest under Article 19 the golden strand of which according to the ratios of Maneka Gandhi runs through the basic structure of Article 21 also- the further questions to be determined, in this connection, will be: On whom will the onus of satisfying the requirements under Article 19, lie ? Will such onus lie on the State or the person challenging its validity ? And what will be the nature of the onus ? 64. With regard to onus, no hard and fast rule of universal application in all situations, can be deduced from the decided cases. In some decisions, such as, Saghir Ahmad v. State of Uttar Pradesh and Khyerbari Tea Co. v. State of Assam , it was laid down by this Court that if the writ petitioner succeeds in showing that the impugned law ex facie abridges or transgresses the rights coming under any of the Sub-clauses of Clause (1) of Article 19, the onus shifts on the respondent-State to show that the legislation comes within the permissible limits imposed by any of the Clauses (2) to (6) as may be applicable to the case, and, also to place material before the court in support of that contention. If the State does nothing in that respect, it is not for the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will of those who made them and not to transgress into the legislative domain of policy-making. The job of a Judge is judging and not law-making In Lord Devlin's words: Judges are the keepers of the law and the keepers of these boundaries cannot, also, be among outriders. 68. A similar warning was echoed by the Supreme Court of the United States in Dennis v. United States in these terms: Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independents of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures. 69. In Gregg v. Georgia one of the principal questions for consideration was, whether capital punishment provided in a statute for certain crimes was a cruel and unusual punishment. In that context, the nature of the burden which rests on those who attack the constitutionality of the statute was explain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 up-bringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to diversity of its population and to the paramount need for maintaining law and order in the country at the present Juncture, India cannot risk the experiment of abolition of capital punishment. 73. This Report was, also, considered by the Constitution Bench of this Court in Jagmohan. It was the main piece of evidence on the basis of which the challenge to the constitutional validity of Section 302 of the Penal Code, op the ground of its being violative of Article 19, was repelled. Parliament must be presumed to have considered these views of the Law Commission and the judgment of this Court in Jagmohan, and must also have been aware of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of justice, devised and worked by human beings, but their incidence can be infinitesimally reduced by providing adequate safeguards and checks. We will presently see, while dealing with the procedural aspect of the problem, that in India, ample safeguards have been provided by law and the Constitution which almost eliminate, the chances of an innocent person being convicted and executed for a capital offence. Regarding (b): Whether death penalty serves any penological purpose. 77. Firstly, in most of the countries in the world, including India, a very large segment of the population, including notable penologists, judges, jurists, legislators and other enlightened people still believe that death penalty for murder and certain other capital offences does serve as a deterrent, and a greater deterrent than life imprisonment. We will set out very briefly, by way of sample, opinions of some of these distinguished persons. 78. In the first place, we will notice a few decisions of Courts wherein the deterrent value of death penalty has been judicially recognised. 79. In Paras Ram v. State of Punjab S.L.P. (Crl.) Nos. 698 678 of 1973, decided on October 9, 1973, the facts we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e social maladjustment of the murderer. Prevalence of such crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval of the society. Examining whether life imprisonment was an adequate substitute for death penalty, the Court observed: In the context of our criminal law which punishes murder, one cannot ignore the fact that life imprisonment works out in most cases to a dozen years of punishment, and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty. 81. In Ediga Anamma v. State of Andhra Pradesh , V.R. Krishna Iyer, J., speaking for the Bench to which one of us (Sarkaria, J.) was a party, observed that deterrence through threat of death may still be a promising strategy in some frightful areas of murderous crime. It was further observed that horrendous features of the crime and the hapless and helpless state of the victim steel the heart of law for the sterner sentence. 82. In Shiv Mohan Singh v. State (Delhi Administration) (1977) 3 SCR 172 the same learned Judge, speaking for the Court, reiterated the deterrent effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rection. 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. 88. Even Marchese De Cesare Bonesana Beccaria, who can be called the father of the modern Abolitionist movement, concedes in his treatise, Dei Delitti a della Pana (1764) that capital punishment would be justified in two instances Firstly, if an execution would prevent a revolution against popularly established Government; and, secondly, if an execution was the only way to deter others from committing a crime. The adoption of double standards for capital punishment in the realm of conscience is considered by some scholars as the bigges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alified inferences. Another fundamental shortcoming of Sellin's studies is their failure to account systematically for other factors that are expected by the deterrence hypothesis to affect the frequency of murder in the population, apart from the relevant risk of execution. These are variables such as the probability of apprehension, the conditional probability of conviction given apprehension, the severity of alternative punishments for murder, the distribution of income, the probability of unemployment, and other indicators of differential gains from criminal activities occurring jointly with murder. Since, as I, shall argue later, some of these variables are expected to be highly correlated with the conditional probability of execution given conviction of murder, their exclusion from the statistical analysis can seriously bias estimates of the partial deterrent effect of capital punishment. Aware of the problem. Sellin attempted to compare states that are as alike as possible in all other respects. However, his matching procedure , based on the assumption that neighbouring states can satisfy such pre-requisites without any. explicit standardization, is simply insufficie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eview in June, 1975. He includes a specific test for the presence of a deterrent effect of capital punishment to the results of earlier studies. Messenger and Bittner in. their Review Year-Book (ibid) have mentioned that Ehrlich has in his study2 claimed to identify a significant reduction in the murder rate due to the use of capital punishment. A version of his study is said to have been filed with the United States Supreme Court, in the case of Fowler v. North Carolina. 93. In 1975. Robert Martinson, a sociologist, published the results of a study he had made in New York regarding the rehabilitation of prisoners. Among the conclusions he drew: The prison which makes every effort at rehabilitation succeeds no better than the prison which leaves its inmates to rot.... The certainty of punishment, rather than the severity, is the most effective crime deterrent. We should make plain that prisons exist to punish people for crimes committed. (quoted in Encyclopaedia Britannica 1978 Book of the Year, pp. 593-594) 94. Many judges - especially in Britain and the United States, where rising crime rates are the source of much public concern - have expressed grave doubts about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the position. But, in that case, no right to kill exists any longer...the greatest war criminals. those responsible - conscious of what they have done and intended to do - for the worst crimes of genocide, who gassed, incinerated in ovens or buried in quicklime a million innocent victims, or allowed them to perish in mines and marsher.... Society has not the right then to kill even these Monsters . (Quoted in A World View of Capital Punishment, by James Avery Joyce). 97. J. J. Maclean, a parliamentarian, articulated his views with regard to the deterrent value of capital punishment in the Canadian House of Commons in the March-April debate 1966, as follows: Whether it (capital punishment) is a greater or lesser deterrent than life imprisonment. This is an argument that cannot be proven on either side but 1 would not like to have to try to convince any one that capital punishment is not a deterrent. Statistically this cannot be proven because the deterrent effect on both capital punishment and life imprisonment is obscured by the fact that most criminals plan a crime on the basis that they are going to avoid any penalty.... I say, the deterrent value is with respect to pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not operate universally or uniformly, and there are many offenders on whom it is limited and may often be negligible. 100. We may add that whether or not death penalty in actual practice acts as a deterrent, cannot be statistically proved either way, because statistics as to how many potential murderers were deterred from committing murders, but for the existence of capital punishment for murder, are difficult, if not altogether impossible, to collect. Such statistics of deterred potential murderers are difficult to unravel as they remain hidden in the innermost recesses of their mind. Retribution in the sense of reprobation - whether a totally rejected concept of punishment: 101. Even retribution in the sense of society's reprobation for the worst of crimes, i. e., murder, is not an altogether outmoded concept. This view is held by many distinguished sociologists, jurists and judges. 102. Lord Justice Denning, Master of the Rolls of the Court of Appeal in England, appearing before the British Royal Commission on Capital Punishment, stated his views on this point as under: Punishment is the way in which society expresses its denunciation of wrong-doing; and in or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds of punishment coalesce into one was described by the Law Commission of India, that: The retributive object of capital punishment has been the subject-matter of sharp attack at the hands of the abolitionists. We appreciate that many persons would regard the instinct of revenge as barbarous. How far it should form part of the penal philosophy in modem times win always remain a matter of controversy. No useful purpose will be served by a discussion as to whether the instinct of retribution is or is not commendable. The fact remains, however, that whenever mere is a serious crime, the society feels a sense of disapprobation. If there is any element of retribution in the law, as administered now, it is not the instinct of the man of jungle but rather a refined evolution of that instinct the feeling prevails in the public is a fact of which notice is to be taken. The law does not encourage it, or exploit it for any undesirable ends. Rather, by reserving the death penalty for murder, and thus visiting this gravest crime with the gravest punishment, the law helps the element of retribution merge into the element of deterrence. (Para 265 (18), 35th Report) 105. Earlier in 1949-1953 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing how demand for retribution, in the sense of society's instinctive disapproval of the outrageous conduct of the murderer is indelibly ingrained in contemporary public opinion even in advanced countries. 110. In November, 1978, George Moscone (Mayor) and Harvey Milk (Supervising Officer) of San Francisco were cruelly assassinated by Dan White, a police-man. Six months later, on May 22, 1979, a jury of seven men and five women rejected the charge of first-degree murder, and in consequence, did not award capital punishment to Dan White for this heinous double murder. Public opinion reacted sharply. Public protest against this decision spontaneously manifested itself in a burst of flame and fury. Thousands of outraged demonstrators rampaged through the Civic center, smashing windows, burning police cars, chanting: We want justice . Writing in The Voice', a local paper from San Franscisco, in its issue of June 4, 1979, Lawrence Mullen, fired at the jury a volley of questions, to which the agitated public would demand answers: What comment did the jury make on the value of life ? Was the tragedy of the execution-style murders the central issue, or was the jury only co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who are capable of anything could kill their guards and their fellow inmates with relative impunity. 113. J. J. Maclean, the Canadian Parliamentarian justifies, from another angle, the right of the State to award capital punishment for murder: If the State has the right and the duty to defend the community against outside aggression, such as in time of war, and within the country, for instance, in case of treason, crimes against the State, etc., and that to the extent of taking the life of the aggressors and guilty parties, if the citizen wants to protect his own life by killing whoever attacks him without any reason, the State can do the same when a criminal attacks and endangers the life of the community by deciding to eliminate summarily another human being.... Capital punishment must be retained to prove the sanctity of that most precious thing which is the gift of life; it embodies the revulsion and horror that we feel for the greatest of crimes.... For most people, life is priceless and they will do anything and suffer the worst privations to preserve it, even when life itself does not bold many consolations or bright prospects for the future.... As a deterrent, the dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... most formidable safeguard against terrorism. 117. The argument cannot be rejected out of hand. A number of instances can be cited where abolitionist States feeling the Inadequacy of their penological Armour to combat politically motivated gangsterism, have retrieved and used their capital weapon which they had once thrown away. Despite their traditional abhorrence of death penalty, the Norwegians executed Major Vedkun Quisling after World War 11. The Belgians, too, executed no less than 242 'collaborators' and traitors after the liberation, although in their country, the death penalty was otiose since 1880. 118. In England, death penalty was retained for high treason in the Silverman Bill of 1956. Even at present, for that offence, death penalty is a valid sanction in England. In the aftermath of assassination of Prime Minister Bandernaike in 1959, Ceylon hurriedly reintroduced capital punishment for murder. Owing to similar considerations, Israel sanctioned death penalty for crimes committed against the Jewish people, and executed the notorious Jew-baiter, Adolf Eichmann in 1962. Recently, on April 9, 1979, confronted with a wave of violent incidents after the signin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or absents of death penalty in the penal law of that country for such crimes. That is why statistical attempts to assess the true penological value of capital punishment, remain inconclusive. 122. Pursued beyond a certain point, both the Abolitionists and the Retentionists retreat into their own conceptual bunkers firmly entrenched in their respective faiths . We need not take sides with either of mem. There is always a danger in adhering too rigidly to concepts. As Prof. Brett has pointed out all concepts are abstractions from reality, and that in the process of abstraction something of the reality is bound to be lost .3 We must, therefore, view the problem against the perspective of the hard realities of the time and the conditions prevailing in the world, particularly in our own country. 123. A review of the world events of the last seven or eight years, as evident from Encyclopaedia Britannica Year Books and other material referred to by the learned Counsel, would show that most countries in the world are in the grip of an ever-rising tide of violent crime. Murders for monetary gain or from misdirected political motives, robbery, rape, assault are on the increase. India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roof of the fact that judicial opinion does not necessarily reflect the moral attitudes of the people. At the same time, it is a reminder that Judges should not take upon themselves the responsibility of becoming oracles or spokesmen of public opinion: Not being representatives of the people, it is often better, as a matter of judicial restraint, to leave the function of assessing public opinion to the chosen representatives of the people in the legislature concerned. 126. Coming back to the review of the world crime situation, during the last decade, Saudi Arabia and some other countries have reinstated death penalty or enacted harsher punishments not only for murder but for some other crimes, also. In America, apart from 32 States which reinstated death penalty under revised laws after Furman, the legislatures of some of the remaining 15 States have either reinstituted or are considering to reintroduce death penalty. Currently, a federal legislation for reinstituting or prescribing capital punishment for a larger range of offences of homicide is under consideration of United States' Congress. According to the report of the Amnesty International, hi U.S.A., as on May 1, 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 77(1); making or passing counterfeit money or securities (when the offence is committed as a form of business) (Article 87); violation of rules for currency transactions (when committed as a, form of business or on a large scale, or by a person previously convicted under this Article) (Article 88); stealing of State properly on an especially large scale, regardless of the manner of stealing (Article 93(1); intentional homicide with aggravating circumstances (Article 102); rape, when committed by a group of persons or by an especially dangerous recidivist, or resulting in especially grave consequences, or the rape of a minor (Article 117); taking a bribe, with especially aggravating circumstances (Article 173); infringing the life of a policeman or People's Guard, with aggravating circumstances (Article 19(2); hijacking an aircraft, if the offence results in, death or serious physical injuries (Article 213(2); resisting a superior or compelling him to violate official duties, an offence applicable only to military personnel, and carrying the death penalty in peace-time if committed in conjunction with intentional homicide of a superior or any other person performing milit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that deterrence to crime was in direct proportion to the relative certainty of going to jail, after being caught. 130. According to Encyclopaedia Britannica Year Book 1979, in 1978 also penologists were seriously divided in their views about the end of punishment. Some penologists argued that It is not possible to punish and reform simultaneously ; while others would prefer to strip punishment of its moral overtones . While many legislators and most penologists have supported the idea that reform ought to take priority in dealing with offenders, many Judges - especially in Britain and the United States. where rising crime rates are the source of much public concern - have expressed grave doubts about the wisdom of this view. They have argued that the courts must reflect a public abhorrence of crime and that justice demands that some attempt be made to impose punishment fitting to the crime . 131. India also, as the statistics furnished by the respondent (Union of India) show, is afflicted by a rising rate of violent crime, particularly murder, armed robbery and dacoity etc., and this has been the cause of much public concern. All attempts made by individual members to mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing revision of the Criminal Procedure Code and the insertion of the new Sections 235(2) and 354(3) in that Code providing for pre-sentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 1972-1973 it took up revision of the Code of 1898 and replaced it by the CrPC, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302, Penal Code is unreasonable and not in the public interest. We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter or the ethos of Article 19. 133. We will now consider the issue whether the impugned limb of the provision in Section 302, Penal Code contravenes Article 21 of the Constitution. 134. Before dealing with the contentions canvassed on the point, it will be proper to notice briefly the principles which should inform the interpretation of Art 21. 135. In Maneka Gandhi's case, which was a decision by a Bench of seven learned Judges, it was held by Bhagwati, J. in his concurring judgment, that the expression 'personal liberty& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt with power to suspend, remit as commute the sentence of any person convicted of any offence, and also in all cases where the sentence is a sentence of death . Likewise, under Article 161, the Governor of a State has been given power to suspend, remit or commute, inter alia, the sentence of death of any person convicted of murder or other capital offence relating to a matter to which the executive power of the State extends. Article 134, in terms, gives a right of appeal to the Supreme Court to a person who, on appeal, is sentenced to death by the High Court, after reversal of his acquittal by the trial Court Under the successive Criminal Procedure Codes which have been in force for about 100 years, a sentence of death is to be carried out by hanging. In view of the aforesaid constitutional postulates, by no stretch of imagination can it be said that death penalty under Section 302, Penal Code, either per se or because of its execution by hanging, constitutes an unreasonable, cruel or unusual punishment. By reason of the same constitutional postulates, it cannot be said that the framers of the Constitution considered death sentence for murder or the prescribed traditional mode o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st facto legislation. Thus the requirements of these clauses are substantially the same as the guarantees or prohibitions contained in Articles 29 and 21 of our Constitution. India's commitment therefore does not go beyond what is provided in the Constitution and the Indian Penal Code and the Criminal Procedure Code. The Penal Code prescribes death penalty as an alternative punishment only for heinous crimes which are not more than seven in number. Section 354(3) of the Criminal Procedure Code, 1973, as we shall presently discuss, in keeping with the spirit of the International Covenant, has further restricted the area of death penalty. India's penal laws, including the impugned provisions and their application, are thus entirely in accord with its international commitment 140. It will be pertinent to note that most of the countries including those who have subscribed to this International Covenant, retain death penalty for murder and certain other crimes even to the present day in their penal laws. Neither the new interpretative dimensions given to Articles 19 and 21 by this Court in Maneka Gandhi and Charles Sobraj v. The Superintendent, Central Jail, Tihar, New Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judicial functions under Section 354(3). He emphasises that only broad guidelines, as distinct from rigid rules, can be laid down by the Court. Since the discretion proceeds the argument is to be exercised judicially after taking into consideration all the aggravating and mitigating circumstances relating to the crime and the criminal in a particular case, and ample safeguards by way of appeal and reference to the superior courts against erroneous or arbitrary exercise of the sentencing discretion have been provided, Section 354(3) cannot be said to be violative of Articles 14, 19 and 21 or anything else in the Constitution. 146. Before embarking upon a discussion of the arguments advanced on both sides, it is necessary to have a peep into the history and legislative background of the procedural provisions relating to sentencing in the CrPC. 147. Under the CrPC, 1898, as it stood before its amendment by Act No. 26 of 1955, even for the seven offences mentioned earlier, which are punishable in the alternative with death, the normal sentence was the death sentence, and if the Court wanted to depart from this rule, it had to give reasons for doing so. This requirement was em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssam . In that case, there was a clear finding by the Court of Session which had been upheld by the High Court, that each of the two appellants therein, committed a cold-blooded murder by shooting two inmates of the house simply with the object of facilitating commission of dacoity by them. Those persons were shot and killed even though they had not tried to put up any resistance. It was held by this Court (speaking through Bhargava, I.) that in these circumstances where the murders were committed in cold-blood with the sole object of committing dacoity, the Sessions Judge had not exercised his discretion judicially in not imposing the death sentence, and the High Court was justified in enhancing the sentence of the appellants from life imprisonment to death. 150. Jagmohan Singh's case, which we shall notice presently in further detail, proceeds on the hypothesis that even after the deletion of Sub-section (5) of Section 367 in the Code of 1898, both the alternative sentences provided in Section 302, Penal code are normal punishment for murder, and the choice of either sentence rest, in the discretion of the Court which is to be exercised judicially, after taking into accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emselves obscure become all the more so in the absence of information on which the correctional process is to operate. The public as well as the courts themselves are in the dark about judicial approach in this regard. We are of the view that the taking of evidence as to the circumstances relevant to sentencing should be encouraged and both the prosecution and the accused should be allowed to co-operate in the process. By enacting Section 235(2) of the new Code, Parliament has accepted that recommendation of the Law Commission. Although Sub-section (2) of Section 235 does not contain a specific provision as to evidence and provides only for hearing of the accused as to sentence, yet it is implicit in this provision that if a request is made in that behalf by either the prosecution or the accused, or by both, the Judge should give the party or parties concerned an opportunity of producing evidence or material relating to the various factors bearing on the question of sentence. Of course , as was pointed out by this Court in Santa Singh v. State of Punjab AIR 1976 SC 2386 care would have to be taken by the Court to see that this hearing on the question of sentence is not turned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the High Court, and further mandates that such a sentence shall not be executed unless it is confirmed by the High Court. On such a reference for confirmation of death sentence, the High Court is required to proceed in accordance with Sections 367 and 368. Section 367 gives power to the High Court to direct further inquiry to be made or additional evidence to be taken. Section 368 empowers the High Court to confirm the sentence of death or pass any other sentence warranted by law; or to annul or alter the conviction or order a new trial or acquit the accused. Section 369 enjoins that in every case so submitted, the confirmation of the sentence, or any new sentence or order passed by the High Court, shall, when such court consists of two or more Judges, be made, passed and signed by at least two of them. Section 370 provides that where any such case is heard before a Bench of Judges and such Judges are equally divided in opinion, the case shall be referred to a third Judge. 158. In this fasciculus of sections relating to confirmation proceedings in the High Court, the Legislature has provided valuable safeguards of the life and liberty of the subject in cases of capital senten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e general standards either meaningless 'boiler plate' or a statement of the obvious that no Jury (Judge) would need. (Referred to McGantha v. California (1971) 402 US 183). (b) The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. (iii) The view taken by the plurality in Furman v. Georgia decided by the Supreme Court of the United States, to the effect, that a law which gives uncontrolled and un-guided discretion to the Jury (or the Judge) to choose arbitrarily between a sentence of death and imprisonment for a capital offence, violates the Eighth Amendment, is not applicable in India. We do not have in out Constitution any provision like the Eighth Amendment, nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply the due process clause. There are grave doubts about the expediency of transplanting western experience in our country. Social conditions are different and so also the general intellectual level. Arguments w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey are invalid for any other reasons they must be regarded as valid. No reasons are offered to show that they are constitutionally invalid and hence the death sentence imposed after trial in accordance with the procedure established by law is not tin-constitutional under Article 21. (emphasis added). 162. A study of the propositions set out above, will show that, in substance, the authority of none of them has been affected by the legislative changes since the decision in Jagmohan's case. Of course, two of them require to be adjusted and attuned to the shift in the legislative policy. The first of those propositions is No. (iv) (a) which postulates, that according to the then extant CrPC both the alternative sentences provided in Section 302, Penal Code are normal sentences, and the Court can, therefore, after weighing the aggravating and mitigating circumstances of the particular case, in its discretion, impose either of those sentences. This postulate has now been modified by Section 354(3) which mandates the Court convicting a person for an offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of years, not to ins-po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connected with the particular crime under inquiry, but nevertheless, have, consistently with the policy underlined in Section 354(3) a bearing on the choice of sentence. The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302, Penal Code, the Court should not confine its consideration principally or merely to the circumstances connected with particular crime, but also give due consideration to the circumstances of the criminal. 165. Attuned to the legislative policy delineated in Sections 354(3) and 235(2), propositions (iv) (a) and (v) (b) in Jagmohan, shall have to be recast and may be stated as below: (a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence, (b) While considering the question of sentence to be imposed for the offence of murder under Section 302 Penal Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The procedure provided in Criminal Procedure Code for imposing capital punishment for murder and some other capital crimes under the Penal Code cannot, by any reckoning, be said to be unfair, unreasonable and unjust. Nor can it be said that this sentencing discretion, with which the courts are invested, amounts to delegation of its power of legislation by Parliament. The argument to that effect is entirely misconceived. We would, therefore, re-affirm the view taken by this Court in Jagmohan, and hold that the impugned provisions do not violate Articles 14, 19 and 21 of the Constitution. 168. Now, remains the question whether this Court can lay down standards or norms restricting the area of the imposition of death penalty to a narrow category of murders. 169. Dr. Chitale contends that the wide observations in Jagmohan as to the impossibility of laying down standards or norms in the matter of sentencing are too sweeping. It is submitted that soon after the decision in Furman, several States in U.S.A. amended their penal statutes and brought them in conformity with the requirements of Furman. Support has also been sought for this argument from Greg v. Georgia wherein the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. There is probably no offence'. observed Sir Ernest Gowers, Chairman of the Royal Commission, that varies so widely both in character and in moral guilt as that which falls within the legal definition of murder . The futility of attempting to lay down exhaustive standards was demonstrated by this Court in Jagmohan by citing the instance of the Model Penal Code which was presented to the American Supreme Court in Me Goutha. 174. Thirdly, a standardisation of the sentencing process which leaves little room for judicial discretion to take account of variations in culpability within single-offence category ceases to be Judicial. It tends to sacrifice justice at the altar of blind uniformity. Indeed, there Is a real danger of such mechanical standardisation degenerating into a bed of Procrustean cruelty. 175. Fourthly, standardisation or sentencing discretion is a policy matter which belongs to the sphere of legislation. When Parliament as a matter of sound legislative policy, did not deliberately restrict, control or standardise the sentencing discretion any further than that is encompassed by the broad contours delineated in Section 354(3), the Court would not by over-le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals Nos. 335 etc. of 1977 and 81 and 82 of 1978, to the context of laying down standards In the discretionary area of anticipatory bail, comes in as a timely reminder. In principle, these observations aptly apply to the desirability and feasibility of laying down standards in the area of sentencing discretion, also. Let us therefore, hark to the same: Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power Is to be meaningful. There Is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , even if we were to frame a 'Code for the grant of anticipatory bail'. which really is the business of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence. 178. From what has been extracted above, it is clear that this Court, should not venture to formulate rigid standards in an area in which the Legislature so warily treads. Only broad guidelines consistent with the policy indicated by the Legislature in Section 354(3) can be laid down. Before we come to this aspect of the matter, it will be fair to notice briefly the decisions of the Supreme Court of U.S.A. in Gregg v. Georgia and companion cases. 179. Soon after the decision in Fur-man, the Georgia Legislature amended its statutory scheme. The amended statute retains the death penalty for six categories of crime: murder, kidnapping for ransom or where victim is harmed, armed robbery, rape, treason, and aircraft hijacking. The statutory aggravating circumstances, the existence of any of which may justify the imposition of the extreme penalty of death, as provided in that statute, are: (1). The offence of murder, rape, armed robbery, or kidnapping was committed by a person w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o counts of armed robbery and two counts of murder. The accused had committed the murders for the purpose of receiving money and an automobile of one of the victims. After reviewing the trial record, the Georgia Supreme Court affirmed the convictions and the imposition of death sentences for murder, only. The constitutional validity of the amended statutory scheme of Georgia was challenged before the Supreme Court of U.S.A. on the ground that the imposition of the death penalty for the crime of murder under the Georgia statute violated the prohibition against the infliction of cruel and unusual punishment under the Eighth and Fourteenth Amendments. 183. Likewise, in the companion case Profit v. Florida , the Florida Legislature adopted new statutes that authorise the imposition of the death penalty on those convicted of first-degree murders. Under the new Florida statutes, if a defendant (accused) is found guilty of first-degree murder, a separate pre-sentence hearing is held before the jury where arguments may be presented and where any evidence deemed relevant to sentencing may be admitted and must include matters relating to eight aggravating and seven mitigating circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extremely elastic standards really exclude the uncontrolled exercise of sentencing discretion so as to meet the requirements of Furman. 186. In Gregg v. Georgia, the petitioner attacked the seventh statutory aggravating circumstance which authorises imposition of the death penalty if the murder was outrageously, or wantonly vile, horrible or inhuman on the ground that it was so broad that capital punishment could be imposed by its application in any murder case. Stewart, J., speaking for himself and for Powell and Stevens, JJ., got over this attack, in three ways: Firstly, by reading down the concerns expressed in Furman. In this connection, Stewart, J. said, all that Furman mandates is that discretion in so grave a matter must be suitably directed so as to minimize the risk of wholly arbitrary and capricious action . This was, if we may say so with respect, an admission of the fact that a considerable range of sentencing discretion has perforce to be left with the sentencing body to be exercised by it according to its own good sense and reason: and that no standards howsoever meticulously drafted can totally exclude scope for arbitrary and capricious action. The secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with the Supreme Court of Florida, the Supreme Court of U.S.A. recognised that while it is arguable that all killings are atrocious, still we believe that the Legislature intended something especially heinous, atrocious, or cruel when it authorise the death penalty for first-degree murder. As a consequence, the Court has indicated that the eighth statutory provision is directed only at the conscienceless or pitiless crime which is unnecessarily tortuous to the victim . 190. It appears to us that in Gregg v. Georgia and the companion cases, the Supreme Court of U.S.A. was obliged to read down the requirements of Furman and to accept these broadly worded, loose-ended and not-all-inclusive standards' because in the area of sentencing discretion, if it was to retain its judicial character, exhaustive standardisation or perfect regulation was neither feasible nor desirable. 191. Moreover, over-standardisation of the sentencing process tends to defeat its very purpose, and may actually produce opposite results. 192. Messenger and Bittner highlight this danger, by taking inter alia, the example of the guided-discretion capital punishment statutes favoured by the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the constitutional bounds are not over-reached, we may not act as judges as we might as legislatures. [Per Stewart. J. in Greg v. Georgia] 195. In Jagmohan, this Court had held that this sentencing discretion is to be exercised judicially on well-recognised principles, after balancing all the aggravating and mitigating circumstances of the crime. By well-recognised principles the Court obviously meant the principles crystallised by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those cases. The legislative changes since Jagmohan - as we have discussed already - do not have the effect of abrogating or nullifying those principles. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354(3) and 235(2), namely: (1) The extreme penalty can be inflicted only in gravest cases of extreme culpability: (2) In making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also. 196. We will first notice some of the aggravating circumstances which. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because 'style is the 'man'. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist. 200. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v, Georgia, in general, and Clauses 2(a), (b), (c), and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these aggravating circumstances : Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion: (a) if the murder has been co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the view taken in Bishnu Deo Shaw v. State of West Bengal , which follows the dictum in Rajendra Prasad (ibid). 203. In several countries which have retained death penalty, pre-planned murder for monetary gain, or by an assassin hired for monetary reward is, also, considered a capital offence of the first degree which, in the absence of any ameliorating circumstances, is punishable with death. Such rigid categorisation would dangerously overlap the domain of legislative policy. It may necessitate, as it were, a redefinition of 'murder' or its further classification. Then, in some decisions, murder by fire-arm, or an automatic projectile or bomb, or like weapon, the use of which creates a high simultaneous risk of death or injury to more than one person, has also been treated as an aggravated type of offence. No exhaustive enumeration of aggravating circumstances is possible. But this much can be said that in order to qualify for inclusion in the category of aggravating circumstances which may form the basis of 'special reasons' in Section 354(3), circumstance found on the facts of a particular case, must evidence aggravation of an abnormal or special degree. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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