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Bachan Singh Vs. State of Punjab
AIR 1980 SC 898, 1980 CriLJ 636, (1980) 2SCC 684, (1980) SCC(Cri) 174, [1983] 1 SCR 145
Hon’ble Judges/Coram : R.S. Sarkaria, JJ., Y.V. Chandrachud, C.J., A.C. Gupta, N.L. Untwalia, P.N. Bhagwati.
Date of Decision: 09.05.1980
FACTS: –
This case raises a question in regard to the constitutional validity of death penalty for murder provided in Section 302, Indian Penal Code, and the sentencing procedure embodied in Sub-section (3) of Section 354 of the CrPC, 1973.
Bachan Singh was tried and convicted and sentenced to death under Section 302, Indian Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai by the Sessions Judge. The High Court confirmed his death sentence and dismissed his appeal. Bachan Singh’s appeal by special leave, came up for hearing before a Bench of this Court (consisting of Sarkaria and Kailasam, JJ.). The only question for consideration in the appeal was, whether 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. The bench referred the matter before this Constitutional Bench to decide upon the issue of constitutional validity of the Death Sentence.
ISSUES: –
- Whether death penalty provided for the offence of murder in Section302, Penal Code is unconstitutional?
- If the answer to the foregoing question be in the negative, whether the sentencing procedure provided in Sec354(3)of the CrPC, 1973 is unconstitutional on the ground that it invests the Court with unguided and untrammelled discretion with respect to awarding death sentence?
JUDGMENT: –
For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302, Penal Code on the ground of reasonableness in the light Of Articles 19 and 21 of the Constitution
The test to check the validity of any law on the touchstone of Article 19 is “Does the impugned law, in its pith and substance, whatever may be its form, and object, deal with any of the fundamental rights conferred by Article 19(1)? If it does, does it abridge or abrogate any of those rights? And even if it does not, in its pith and substance, deal with any of the fundamental rights conferred by Article 19(1) is the direct and inevitable effect of the impugned law such as to abridge or abrogate any of those rights?”
The mere fact that impugned law incidentally, remotely or collaterally has the effect of abridging or abrogating those rights will not satisfy the test. If the answer to the above queries be in the affirmative, the impugned law in order to be valid must pass the test of reasonableness under Article 19. But if the impact of the law on any of the rights under Clause (1) of Article 19 is merely incidental, indirect, remote or collateral and is dependent upon factors which may or may not come into play, the anvil of Article 19 will not be available for judging its validity. Section 299 defines ‘culpable homicide’ and Section 300 defines culpable homicide amounting to murder. Section 302 prescribes death or imprisonment for life as penalty for murder. After the decision in 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. 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 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) shall have been attracted. It would then become necessary to test the validity of even a penal law on the touchstone of that Article. On this latter aspect of the matter, the deprivation of freedom consequent upon an order of conviction and sentence is not a direct and inevitable consequence of the penal law but is merely incidental to the order of conviction and sentence which may or may not come into play, that is to say, which may or may not be passed. Therefore, Section 302 of the Penal Code does not have to stand the test of Article 19(1) of the Constitution.
In Maneka Gandhi Case, it was held that the expression “personal liberty” is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights under article 19. Article 14, 19 and 21 are not to be interpreted in a water tight compartments, and consequently, a law depriving a person of personal liberty and prescribing a procedure for the same within the meaning of Article 21 has to stand the test of one or more fundamental rights conferred under Article 19 which may be applicable in a given situation, ex-hypothesi it must also be liable to be tested with reference to Article 14. The principle of reasonableness pervades all the three articles, with the result, that the procedure contemplated by article 21 must be right and just and fair and not arbitrary, fanciful or oppressive, otherwise it should be no procedure at all and the requirement of article 21 would not be satisfied.
Article 21 clearly brings out the implication, that the Founding Fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. There are several other indications, also, in the Constitution which show that the Constitution makers were fully cognizant of the existence of death penalty for murder and certain other offences in the Indian Penal Code. Entries 1 and 2 in List in – Concurrent List – of the Seventh Schedule, specifically refer to the Indian Penal Code and the CrPC as in force at the commencement of the Constitution. Article 72(1)(c) specifically invests the President 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 of its execution as a degrading punishment which would defile “the dignity of the individual” within the contemplation of the Preamble to the Constitution. On parity of reasoning, it cannot be said that death penalty for the offence of murder violates the basic structure of the Constitution.
Section 366(i) of the Criminal Procedure Code requires the Court passing a sentence of death to submit the proceedings 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. 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 sentences. These provisions seek to ensure that where in a capital case, the life of tide convicted person if at stake, the entire evidential material bearing on the innocence as guilt of the accused and the question of sentence must be scrutinized with utmost caution and care by a superior Court. The High Court has been given very wide powers under these provisions to prevent any possible miscarriage of justice.
Similarly, where on appeal, the High Court reverses an acquittal, and convicts the accused person and sentences him to death, Section 379 of the Code of 1973, gives him a right of appeal to the Supreme Court Finally, there is Article 136 of the Constitution under which the Supreme Court is empowered, in its discretion, to entertain an appeal on behalf of a person whose sentence of death awarded by the Sessions Judge is confirmed by the High Court.
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 impose the sentence of death on that person unless there are “special reasons” – to be recorded – for such sentence. The expression “special reasons” in the context of this provision, obviously means “exceptional reasons” founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal. Thus, the legislative policy now writ large and clear on the face of Section 354(3) is that on conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases.
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, while considering the question of sentence to be imposed for the offence of murder under Section 302 Penal Code; the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence. Parliament has in Section 354(3) given a broad and clear guideline which is to serve the purpose of lodestar to the court in the exercise of its sentencing discretion. Parliament has advisedly not restricted this sentencing discretion further, as, in its legislative judgment, it is neither possible nor desirable to do so. Parliament could not but be aware that since the Amending Act 26 of 1955, death penalty has been imposed by courts on an extremely small percentage of persons convicted of murder – a fact which demonstrates that courts have generally exercised their discretion in inflicting this extreme penalty with great circumspection, caution and restraint. Cognizant of the past experience of the administration of death penalty in India, Parliament, in its wisdom thought it best and safe to leave the imposition of this gravest punishment in gravest cases of murder, to the judicial discretion of the courts which are manned by persons of reason, experience and standing in the profession. The exercise of this sentencing discretion cannot be said to be untrammelled and unguided. It is exercised judicially in accordance with well-recognized principles crystallized by judicial decisions, directed along the broad contours of legislative policy towards the signposts enacted in Section 354(3). 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.
HELD: –
Section 302 of the Indian Penal Code and Section 354(3) of the Criminal Procedure Code are constitutionally valid and do not offend fundamental rights as provided under Part III of the Indian Constitution. Moreover, Court laid down that Death Penalty should only be awarded in rarest of rare cases.
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