BHAGWATI - (1.) THESE writ petitions challenge the constitutional validity of S . 302 of the Penal Code read with S. 354, sub-sec. (3) of the Criminal P.C. in so far as it provides death sentence as an alternative punishment for the offence of murder. There are several grounds on which the constitutional validity of the death penalty provided in S. 302 of the Penal Code read with Section 354 sub-and (3) of the Criminal P. C. is assailed before us. but it is not necessary to set them out at this stage, for I propose to deal with them when I examine the arguments advanced on behalf of the parties. Suffice it to state for the present that I find considerable force in some of these grounds and in my view, the constitutional validity of The death penalty provided as an alternative punishment in S. 302 of the Indian Penal Code read with S. 354 sub-sec. (3) of the Code, of Criminal Procedure cannot be sustained. I am conscious that my learned brethren on the Bench who constitute the majority have taken a different view and upheld the constitutional validity of the death penalty but, with the greatest respect to them and in all humility, I cannot persuade myself to concur with the view taken by them. Mine is unfortunately a solitary dissent and it is therefore with a certain amount of hesitation that I speak but my initial diffidence is overcome by my deep and abiding faith in the dignity of man and worth of the human person and passionate conviction about the true spiritual nature and dimension of man. I agree with Bernard Shaw that "Criminals do not die by the hands of the law. They die by, the hands of other men. Assassination on the scaffold is the worst form of assassination because there it is invested with the approval of the society... Murder and capital punishment are not opposites that cancel one another but similars that breed their kind." It was the Father ad the Nation who said years ago, reaffirming what Prince Satyavan said on capital punishment in Shanti Parva of Mahabharata that "Destruction of individuals can never be a virtuous act" and this sentiment has been echoed by many eminent men such as Leonardo Da Vinci, John Bright, Victor Hugo and Berdyaev. To quote again from Bernard Shaw from Act IV of his play "Caesar and Cleopatra" : "And so to the end of history murder shall breed murder, always in the name of right and honour and peace, until the Gods are tired of blood and create a race that can understand." I share this sentiment because I regard men as an embodiment of divinity and I am therefore morally against death penalty. But my dissent is based not upon any ground of morality or ethics but is founded on constitutional issues, for as I shall presently show, death penalty does not serve any social purpose or advance any constitutional value and is totally arbitrary and unreasonable so as to be violative of Arts. 14, 19, 21 of the Constitution
(2.) BEFORE I proceed to consider the various constitutional issues arising our of the challenge to the validity of the death penalty, I must deal with a preliminary objection raised an behalf of the respondents against our competence to entertain this challenge. The learned counsel appearing on behalf of the respondents urged that the question of constitutional validity of the death penalty stood concluded against the petitioners by the decision of a constitution bench of five Judges of this Court in Jagmohan v. State of U. P., AIR 1973 SC 947 and it could not therefore be allowed to be reagitated before this Bench consisting of the same number of Judges. This Bench, contended the respondents, was bound by the decision in Jagmohan's case (supra) and the same issue, once decided in Jagmohan's case (supra), could not be raised again and reconsidered by this Bench. Now it is true that the question of constitutional validity of death penalty was raised in Jagmohan's case (supra) and this Court by a unanimous judgment held it to be constitutionally valid and, therefore, ordinarily, on the principle of stare decisis, we would hold ourselves bound by the view taken in that case and resist any attempt at reconsideration of the same issue. But there are several weighty considerations which compel us to depart from this precedential rule in the present case. It may be pointed out that the rule of adherence to precedence is not a rigid and inflexible rule of law but it is a rule of practice adopted by the courts for the purpose of ensuring uniformity and stability in the law. Otherwise, every Judge will decide an issue according to his own view and lay down a rule according to his own perception and there will be no certainty and predictability in the law, leading to chaos and confusion and in the process, destroying the rule of law. The labour of the Judges would also, as pointed out by Cardozo, J. in his lecture's on "Nature of Judicial Process" increase "almost to the breaking point if every past decision could be reopened in every case and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him." But this rule of adherence to precedents, though a necessary tool in what Maitland called "the legal smithy", is only a useful servant and cannot be allowed to turn into a tyrannous master. We would do well to recall what Branches J. said in his dissenting judgment in State of Washington v. Dawson and Company (1923) 264 US 219 : 68 L. ed 2d 646 namely; "Stare decisis is ordinarily a wise rule of action. But it is not a universal and inexorable command." If the rule of stare decisis were followed blindly and mechanically, it would dwarf and stultify the growth of the law and affect its capacity to adjust itself to the changing needs of the society. That is why Cardozo pointed out in his New York State Bar Address : "That was very well for a time, but now at last the precedents have turned upon us and are engulfing and annihilating us, engulfing and annihilating the very devotees that worshipped at their shrine. So the air is full of new cults that disavow the ancient faiths. Some of them tell us that instead of seeking certainty in the word, the outward sign, we are to seek for something deeper, a certainty of ends and aims. Some of them tell us that certainty is merely relative and temporary, a writing on the sands to be effected by the advancing tides. Some of them even go so far as to adjure us to give over the vain guest, to purge ourselves of these yearnings for an unattainable ideal. and to be content with an empiricism that is untroubled by strivings for the absolute. With all their diversities of form and doctrine they are at one at least in their emphasis upon those aspects of truth that are fundamental and ultimate. They exemplify the method approach, the attitude and outlook, the concern about the substance of things, which in all its phases and disguises is the essence of philosophy." We must therefore rid stare decisis of something of its petrifying rigidity and warn ourselves with Cardozo that "in many instances the principles and rules and concepts of our own creation are merely apercus and glimpses of reality" and remind ourselves "of the need of reformulating them or at times abandoning them altogether when they stand condemned as mischievous in the social consciousness of the hour .... ... the social consciousness which it is our business as Judges to interpret as best as we can." The question at issue in the present writ petitions is one of momentous significance namely, whether the State can take the life of an individual under the cover of judicial process and whether such an act of killing by the State is in accord with the constitutional norms and values and if on an issue like this, a Judge feels strongly that it is not competent to the State to extinguish the flame of life in an individual by employing the instrumentality of the judicial process, it is his bounden duty. in all conscience, to express his dissent, even if such killing by the State is legitimized by a previous decision of the court. There are certain issues which transcend technical considerations of stare decisis and if such an issue is brought before the court, it would be nothing short of abdication of its constitutional duty for the court to refuse to consider such issue by taking refuge under the doctrine of stare decisis. The court may refuse to entertain such an issue like the constitutional validity of death penalty because it is satisfied that the previous decision is correct but it cannot decline to consider it on the ground that it is barred by the rule of adherence to precedents. Moreover, in the present case, there are two other supervening circumstances which justify, nay compel, reconsideration of the decision in Jagmohan's case (AIR 1973 SC 947) (supra). The first is the introduction of the new Code of Criminal Procedure in 1973 which by S. 354 sub-sec. (3) has made life sentence the rule in case of offences punishable with death or in the alternative imprisonment for life and provided for imposition of sentence of death only in exceptional cases for special reasons. I shall presently refer to this section enacted in the new Code of Criminal Procedure and show how, in view of that provision, the imposition of death penalty has become still more indefensible from the constitutional point of view. But the more important circumstance which has supervened since the decision in Jagmohan's case (supra) is the new dimension of Arts. 14 and 21 unfolded by this Court in Maneka Gandhi v. Union of India (1978) 2 SCR 621 at, p. 663 : (AIR 1978 SC 597 At. p. 616-17). This new dimension of Articles 14 and 21 renders the death penalty provided in Section 302 of the Indian Penal Code read with Sec. 354 (9) of the Code of Criminal Procedure vulnerable to attack on a ground not available at the time when Jagmohan's case (supra) was decided. Furthermore, it may also be noted, and this too is a circumstance not entirely without significance, that since Jagmohan's case (supra) was decided. India has ratified two international instruments on Human rights and particularly the International Covenant on Civil and Political Rights. We cannot therefore consider ourselves bound by the view taken in Jagmohan's case (supra) and I must proceed to consider the issue as regards the constitutional validity of death penalty afresh, without being in any manner inhibited by the decision in Jagmohan's case (supra). It must be realised that the question of constitutional validity of death penalty is not just a simple question of application of constitutional standards by adopting a mechanistic approach. It is a difficult problem of constitutional interpretation to which it is not possible to give an objectively correct legal answer. It is not a mere legalistic problem which can be answered definitively by the application of logical reasoning but it is a problem which raises profound social and moral issues and the answer must therefore necessarily depend on the judicial philosophy of the Judge. This would be so in case of any problem of constitutional interpretation but much more so would it be in a case like the present where the constitutional conundrum is enmeshed in complex social and moral issues defying a formalistic judicial attitude. That is the reason why in some counties like the United States and Canada where there is power of judicial review, there has been judicial disagreement on the constitutionality of death penalty. On an issue like this, as pointed out by David Pannick in his book on "Judicial Review of the Death Penalty" "judicial conclusions emanate from the judicial philosophy of those who sit in judgment and not from the language of the Constitution". But even so, in their effort to resolve such an issue of great constitutional significance, the Judges must take care to see that they are guided by "objective factors to the maximum possible extent". The culture and ethos of the nation as gathered from its history, its tradition and its literature would clearly be relevant factors in adjudging the constitutionality of death penalty and so would the ideals and values embodied in the Constitution which lays down the basic frame-work of the social and political structure of the country, and which sets out the objectives and goals to be pursued by the people in a common endeavour to secure happiness and welfare of every member of the society. So also standards or norms set by International organisations and bodies have relevance in determining the constitutional validity of death penalty and equally important in construing and applying the equivocal formulae of the Constitution would be the "wealth of non-legal learning and experience that encircles and illuminates" the topic of death penalty. "Judicial dispensers". said Krishna Iyer, J. in Dalbir Singh v. State of Punjab (1979) 3 SCR 1059: (AIR 1979 SC 1384) "do not behave like cavemen but breathe the fresh air of finer culture". There is no reason why, in adjudicating upon the constitutional validity of death penalty. Judges should not obtain assistance from, the writings of men like Dickens, Tolstoy, Dostoyevsky, Koestter and Camus or from the investigations of social scientists or moral philosophers in deciding the circumstances in which and the reasons why the death penalty could be seen as arbitrary or a denial of equal protection. It is necessary to bear in mind the wise and felicitous words of Judge Learned Hand in his "Spirit of Liberty" that while passing on a question of constitutional interpretation. it is as important to a Judge : "... to have at least a bowing acquaintance with Acton and Maitland. With Thucydides, Gibbon and Carlyle, with Homer, Dante Shakespeare and Milton, with Machiavelli. Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the subject. For in such matters everything turns upon the spirit in which he approaches the question before him. The words he must construe are empty vessels into which he can pour nearly anything he will. Men do not gather figs of thistles. nor supply institutions from Judges whose outlook is limited by parish or class. They must be aware that there are before them more than verbal problems; more than final solutions cast in generalisations of universal applicability." Constitutional law raises, in a legal contest, problems of economic, social, moral and political theory and practice to which non-lawyers have much to contribute. Non-lawyers have not reached unanimity on the answers to the problems posed; nor will they ever do so. But when judges are confronted by issues to which there is no legal answer, there is no reason (other than a desire to maintain a fiction that the law provides the answer) for judicial discretion to be exercised in a vacuum, immune from non-legal learning and extra-legal dispute. Quotations from noble minds are not for decoration (in hard constitutional cases) but for adaptation within the framework of the law, "Vide David Pannick on 'Judicial Review of the Death Penalty.' The Judges must also consider while deciding an issue of constitutional adjudication as to what would be the moral, social and economic consequences of a decision either way. The consequences of course do not alter the meaning of a constitutional or statutory provision but they certainly help to fix its meaning. With these prefatory observations I shall now proceed to consider the question of constitutional validity of death penalty. I shall presently refer to the constitutional provisions which bear on the question of constitutionality of death penalty. but before I do so, it would be more logical if I first examine what is the international trend of opinion in regard to death penalty. There are quite a large number of countries which have abolished death penalty de jure or in any event, de facto. The Addendum to the Report of the Amnesty International on "The Death Penalty" points out that as of 30/05/1979, the following countries have abolished death penalty for all offences. Australia. Brazil, Colombia, Costa Rica, Denmark, Dominican Republic, Ecuador, Fiji, Finland, Federal Republic of Germany, Honduras Iceland, Luxembourg. Norway, Portugal. Sweden, Uruguay and Venezuela, and according to this Report, Canada, Italy, Malta, Netherlands. Panama, Peru, Spain and Switzerland have abolished death penalty in time of peace, but retained it for specific offences committed in time of war. The Report also states that Algeria, Belgium, Greece, Guyana. Ivory Coast. Seychelles and Upper Volta have retained the death penalty on their statute book but they did not conduct any executions for the period from 1973 to 30/05/1979. Even in the United States of America there are several States which have abolished death penalty and so also in the United Kingdom, death penalty stands abolished from the year 1965 save and except for offence of treason andcertain forms of piracy and offences committed by members of the armed forces during war time. It may be pointed out that an attempt was made in the United Kingdom in December 1975 to reintroduce death penalty for terrorist offences involving murder but it was defeated in the House of Commons and once again a similar motion moved by a conservative member of Parliament that "the sentence of capital punishment should again be available to the courts" was defeated in the House of Commons in a free vote on 19/07/1979. So also death penalty has been abolished either formally or in practice in several other countries such as Argentina, Bolivia. most of the federal States of Mexico and Nicaragua Israel, Turkey and Australia do not use the death penalty in practice. It will thus be seen that there is a definite trend in most of the countries of Europe and America towards abolition of death penalty.
(3.) IT is significant to note that the United Nations has also taken great interest in the abolition of capital punishment. In the Charter of the United Nations signed in 1945, the founding States emphasized the value of individual's life, stating their will to "achieve international co-operation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex. language or religion". Though the San Francisco Conference did not address itself to the issue of death penalty specifically, the provisions of the charter paved the way for further action by United Nations bodies in the field of human rights, by establishing a Commission on Human Rights and in effect charged that body with formulating an International Bill of Human Rights. Meanwhile the Universal Declaration of Human Rights was adopted by the General Assembly in its Resolution 217-A (III) of 10/12/1948. Arts. 3 and 5 of the Declaration provided: 3. "Everyone has the right to life liberty and security of person." "5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". The United Nations position on the question of death penalty was expected to be stated more specifically in the International Covenant on Civil and Political Rights, the drafting of which had been under way since the first session of the Commission. on Human Rights in 1947. But during the 11-year period of drafting of the relevant provision of the Covenant, two main approaches to the issue of capital punishment became evident: one stressed the need for barring the death penalty and the second placed emphasis on restricting its application to certain cases. The proponents of the first position suggested either the total abolition of the death penalty or its abolition in time of peace or for political offences. This approach was however regarded as unfeasible, since many countries, including abolitionist ones, felt that the provision for an outright ban on the death penalty would prevent some States from ratifying the Covenant, but at the same time, it was insisted by many countries that the Covenant should not create the impression of supporting or perpetuating death penalty and hence a provision to this effect should be included. The result was that the second approach stressing everyone's right to life and emphasizing the need for restricting the application of capital punishment with a view to eventual abolition of the death penalty, won greater support and Art. 6 of the Covenant as finally adopted by the General Assembly in its Resolution 2200 (XXI) of 16/12/1966 provided as follows: "1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This. penalty can only be carried out pursuant to a final judgment rendered by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Covention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. Nothing in this article shall be invoked to delay or prevent the abolition of capital punishment by any State Party to the present Covenant." Article 7 of the Covenant corresponding to Article 5 of the Universal Declaration of Human Rights reaffirmed that no one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment. 6. So deep and profound was the United Nation's concern with the issue of death penalty that the General Assembly in its Resolution 1396 (XIV) of 20/11/1959 invited the Economic and Social Council to initiate study of the question of capital punishment of the laws and practices relating thereto, and of the effects of capital punishment and the abolition thereof on the rate of criminality. Pursuant to this resolution the Economic and Social Council activised itself on this issue and at its instance a substantive report was prepared by the noted French Jurist Marc Ancel. The report entitled "Capital Punishment" was the first major survey of the problem from an international standpoint on the deterrent aspect of the death penalty and in its third chapter, it contained a cautious statement "that the deterrent effect of the death penalty is, to say the least. not demonstrated". This view had been expressed not only by abolitionists countries in their replies to the questionaires but also by some retentionist countries. The Ancel report along with the Report of the ad hoc Advisory Committee of Experts on the Prevention of Crime and the Treatment of Offenders which examined it in January, 1963 was presented to the Economic and Social Council at its 35th Session when its Resolution 934 (XXXV) of 9/04/1963 was adopted. By this Resolution the Economic and Social Council urged member governments inter alia to keep under review the efficacy of capital punishment as a deterrent to crime in their countries and to conduct research, into the subject and to remove this punishment from the criminal law concerning any crime to which it is, in fact, not applied or to which there is no intention to apply it. This Resolution clearly shows that there was no evidence supporting the supposed deterrent effect of the death penalty and that is why the Economic and Social Council suggested further research on the topic. Moreover, the urging of the de facto abolitionist countries by this Resolution to translate the position into de jure terms constituted an implicit acceptance of the principle of abolition. The same year by Resolution 1918 (XVIII) of 5/12/1963, the General Assembly endorsed this action of the Economic and Social Council and requested the Economic and Social Council to invite the Commission on Human Rights to study and make recommendations on the Ancel Report and the comments of the ad hoc Advisory Committee of Experts. The General Assembly also requested the Secretary General to present a report on new developments through the Economic and Social Council. Norval Morris, an American Professor of Criminal Law and Criminology, accordingly prepared a Report entitled "Capital Punishment Developments 1961-1965" and amongst other things, this Report pointed out that there was a steady movement towards legislative abolition of capital punishment and observed with regard to the deterrent effect of death penalty, that : "with respect to the influence of the abolition of capital punishment upon the incidence of murder, all of the available data suggest that where the murder rate is increasing, abolition does not appear to hasten the increase, where the rate is decreasing abolition does not appear to interrupt the decrease; where the rate is stable, the presence or absence of capital punishment does not appear to affect it." The Commission on Human Rights considered this Report and adopted a draft General Assembly Resolution which was submitted by the Economic and Social Council to the General Assembly and on 26/11/1968, the General Assembly adopted this draft with certain modifications as its Resolution 2393 (XXIII) inviting member governments to take various measures and requesting the Secretary General to invite member governments "to inform him of their present attitude to possible further restricting the use of the death penalty or to its total abolition" and to submit a report to the Economic and Social Council. The Secretary General accordingly submitted his report to the Economic and Social Council at its 50th session in 1971. This Report contained a finding that "most countries are gradually restricting the number of offences for which the death penalty is to be applied and a few have totally abolished capital offences even in war times". The discussion in the Economic and Social Council led to the adoption of Resolution 1574 (L) of 20/05/1971 which was reaffirmed by General Assembly Resolution 2857 (XXVI) of 20/12/1971. This latter resolution clearly affirmed that : "In order to guarantee fully the right to life, provided for in Article 3 of the Universal Declaration of Human Rights, the main objective to be pursued is that of progressively restricting the number of offences for which capital punishment may be imposed with a view to the desirability of abolishing this punishment in all countries". (Emphasis supplied). ;