CHANDRACHUD - (1.) IN this batch of Writ Petition, the petitioners were sentenced to death for the offence of murder under S. 302 of the Penal Code. They have nothing in common except that they committed murders and have been sentenced to death. The sentence of death imposed upon them has become final in the sense that the special leave petitions, appeals, Review Petition and mercy petitions filed by them have been dismissed, some of these more than once. The main question which has been raised by the petitioners in these Writ Petition relates to the validity of the mode of execution of the death sentence.
(2.) S. 354(5) of the Code of Criminal Procedure provides that : When any person is sentenced to death, the sentence shall direct thatbe be hanged by the neck till he is dead. The petitioners challenge the constitutional validity of this provision on the ground that hanging a convict by rope is a cruel and barbarous method of exe cuting a death sentence, which is violative of Article 21 of the Constitution. That article provides that : No person shall be deprived of his life or personal liberty exceptaccording to procedure established by law. The validity of death sentence which S. 302 prescribes for the offence of murder was upheld by this court in Bachon Singh. The ratio of that decision is that the normal sentence for murder is life imprisonment and that the sentence of death can be imposed in a very exceptional class of cases, described in that judgment as the 'rarest of rare cases'. Which kind of cases would precisely fall within that category is in the very nature of things difficult to define and even to describe. But, all the same, a studied attempt was made by this court in Machhi Singh to identify, though not to crystallize, the area of those rarest of rare cases in which death sentence can justifiably be imposed. 653Shri Garg's criticism of that judgment that it virtually overrules Bachan Singh and Jagmohan Singh is wide off the mark. In Machhi Singh, the learnedJudges have but formulated broad guidelines to assist the courts in decidingthe vexed question as to whether the death sentence is at all called for.Evidently, the judgment does not enlarge the scope of the rule in Bachan Singh by broadening the narrow field of cases which call for the death sentence. But, Machhi Singh is by the way. The validity of the death sentence for the offence of murder having been upheld by this court after a careful and prolonged discussion, there is no justification for reopening that question, though such a suggestion was made half-heartedly before us, towards the conclusion of the arguments. The question that, in the circumstances mentioned in Bachan Singh, it is permissible to impose the sentence of death must be treated as concluded and not any longer open to argument. There has to be finality to litigation, criminal as much as civil, if law is not to lose its credibility. No one of course can question that law is a dynamic science, the social utility of which consists in its ability to keep abreast of the emerging trends in social and scientific advance and its willingness to readjust its postulates in order toaccommodate those trends. Life is not static. The purpose of law is to servethe needs of life. Therefore law cannot be static. But, that is not to say that judgments rendered by this court after a full debate should be reconsidered every now and then and their authority doubted or diluted. That would be doing disservice to law since certainty over a reasonably foreseeable period is the hallmark of law.
(3.) THE learned Solicitor-General has raised a preliminary objection to these Writ Petition on the ground that the question which is sought to be argued by the petitioners is concluded by the judgment rendered by a Constitution bench of this court in Bachan Singh. It is urged that since the question is not res integra, it is not open to the petitioners to raise it, nor indeed any reason or justification for this court to entertain it. Learned Counsel for the petitioners, led by Shri R. K. Garg, answer this objection by contending that the only question which arose in Bachan Singh was whether it is constitutionally permissible to prescribe the sentence of death. It is urged on behalf of the petitioners that the question as regards the validity of S. 354(5) of the Code of Criminal Procedure was neither argued in Bachan Singh nor considered by the court. The objection taken by the learned Solicitor-General is not without substance but for reasons which we will presently indicate, we do not propose to accept it of the Report in Bachan Singh, the main arguments of the 'Abolitionists' which were, "substantially adopted" by counsel for the petitioners therein are reproduced in clauses (a), (b) and (c). Under clause (c), the argument is reproduced thus : "Execution by whatever 654 means and for whatever offence is cruel, inhuman and degrading punishment",by which is obviously meant 'execution of death sentence'. The argumentmentioned in clause (a) to the effect that the death penalty is unconstitutional because it is irreversible is considered of the Report. The argument mentioned in clause (b) as to whether death penalty serves any penological purpose at all is considered . Though the arguments mentioned in clauses (a) and (b) of the Report have been specifically considered under separate heads as stated above, the argument mentioned in clause (c) relating to the execution of death sentence has not been considered under a separate head. The discussion of the argument whether death penalty serves any penological purpose is concluded at the end of the third line on . The heading "Regarding (c)" should have appeared in the Report after the said third line and before the fresh paragraph which begins thus : "We will now consider the issue whether the impugned limb of the provision in S. 302, Penal Code, contravenes Article 21 of the Constitution". That this should have been so is clear from the fact that after considering the particular argument and 223 , Justice Sarkaria who spoke for the majority concludes : Under the successive Criminal Procedure Codes which have been inforce 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 S. 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. ;