Bachan Singh V. State of Punjab , AIR 1980 SC 898 Honble Judges Y.V.Chandrachud, C.J., A.C.Gupta, N.L.Untwalia, P.N.

.Bhagwati and R.S.Sarkaria,JJ. INTRODUCTION : The use of Capital Punishment, frequently known as death penalty , is highlycontroversial matter to be discussed.In the above mentioned case SC announcedimportant limitations on the death penalty solidifying the 'rarest of rare' doctrine. Thiscase is a landmark judgment given by 5 judges bench in this context where the SC saidthat a real and abiding concern for the dignity of human life postulates resistance totaking a life through laws instrumentality. That ought not to be done except in rarerest of rare cases where the alternative opinion is unquestionably foreclosed.

F ACTS : Bachan Singh, appellant in Criminal Appeal No. 273 of 1979, was tried and convictedand sentenced to death under Section 302, Indian Penal Code for the murders of DesaSingh, Durga Bai and Veeran Bai by the Sessions Judge. The High Court confirmed hisdeath sentence and dismissed his appeal.Bachan Singh then appealed to the SC by special leave, which came up for hearing beforea Bench of this Court (consisting of Sarkaria and Kailasam, JJ.). The question raised inthe 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. ISSUES : 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 Codeis unconstitutional?(ii) If the answer to the above mentioned question be in the negative, whether thesentencing procedure provided in Section 354(3) of the CrPC, 1973 (Act 2 of 1974) isunconstitutional on the ground that it invests the Court with unguided and untrammelleddiscretion and allows death sentence to be arbitrarily imposed on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code with deathor, in the alternative, with imprisonment for life.? JUDGEMENT :

In this case judges differs in two views, one is majority consisting of Y.V.Chandrachud,C.J., R.S.Sarkaria, A.C.Gupta, and N.L.Untwalia JJ. The other view that is of minorityconsists of P.N.Bhagwati J.The m ajority view was given with reference to the constitutional validity of (i) deathpenalty for murder in 302 IPC (ii) and procedure in 354(3) CrPC, 1973.Now under issue (i) there are further two points:

Whether Article 19 is at all applicable for judging the validity of the impugnedprovision in section 302 of IPC?

Whether the impugned limb of the provision of 302 of IPC contravenes Article 21 of the constitution?It was finally held that the impugned provision of section 302 penal code violates neither the letter nor the ethos of Art. 19. As to the matter of 2 nd point Art.21 clearly brings outthe implication that the founding fathers recognized the rights of the state to deprive aperson of his life or personal liberty in accordance with fair, just and reasonableprocedure established by valid law. There are several other indications, also, in theConstitution which show that the Constitution makers were fully cognizant of the existence of death penalty for murder and certain other offences in the IPC.Now there comes (ii) issue which says are the provisions of Section 354(3) of the CrPC,1973 unconstitutional? That is the question. The constitutional validity of Section 354(3)is assailed on the ground that -A sentence of death is the extreme penalty of law and it is but fair that when a Courtawards that sentence in a case where the alternative sentence of imprisonment for life isalso available, it should give special reasons in support of the sentence.Accordingly, Sub-section (3) of Section 354 of the current Code provides:When the conviction is for an offence punishable with death or, in the alternative withimprisonment for life or imprisonment for a term of years, the judgment shall state thereasons for the sentence awarded, and, in the case of sentence of death, the specialreasons for such sentence.Now comes the m inority view (consisting of P.N.Bhagwati) who says that section 302 of IPC in so far as it provides for imposition of death penalty as an alternative to lifesentence is Ultra Virus and Void as being violative of Articles 14 and 21 of theconstitution. Since it does not provide any legislative guidelines as to when life should bepermitted be extinguished by imposition of death sentence.He then further said that

I would strike down section 302 IPC as unconstitutional and void.

ORDER :

SC with the majority of 4:1 rejected the challenge to the constitutionality of Section 302of the Penal Code in so far as it provides for the death sentence as also the challenge tothe constitutionality of Section 354(3) of the CrPC, 1973The Writ Petitions and other connected matters may now be placed for hearing, in theusual course, before the Division Bench for consideration of the individual cases onmerits, in the light of the principles enunciated in the majority judgment. COMPARATIVE ANALYSIS : Imposing of death sentence is one thing that always gets more attention to be discussed,including from the view of constitutional validity in each countries.National discussionabout the death penalty has resurfaced from time to timeThe Supreme Court addressed the question of constitutionality of the death penalty for the first time in Jagmohan Singh v State of Uttar Pradesh (AIR 1973 SC 947).

The death sentence does not extinguish all the freedoms guaranteed under Article 19 (1)and it was also held that it was not violative of art 14 of the Constitution on the groundthat unguarded and uncontrolled discretion is given to judges to impose either capitalpunishment or imprisonment for life. Thus the death penalty became the exception rather than the rule.In addition, the Court decided in Rajendra Prasad v State of UP (1979 3SCC 646) that thespecial reasons necessary for imposing a death penalty required a searching case by caseevaluation.Use of the death penalty can also be seen in other countries also . Capital punishment is acontroversial issue, with many prominent organizations and individuals participating inthe debate. The United States is one of only three industrialized democracies that stillhave it. The others, Japan and South Korea, both have de-facto moratorium (i.e. endingmandatory death sentencing) in effectThe Supreme Court of the United States in Dennis v. United States,1951 held that courtsare not representative bodies. They are not designed to represent a democratic society.Their judgment is best informed, and therefore most dependable, within narrow limits.Their essential quality is detachment, founded on independence.In Gregg v. Georgia, 1976 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 Furman V. Georgia,1972 Stewart, J. took the view that death penaltyserves a deterrent as well as retributive purpose.Many judges - especially in Britain and the United States, where rising crime rates are thesource of much public concern - have expressed grave doubts about the wisdom of theview that reform ought to take priority in dealing with offenders. "They have argued thatthe courts must reflect a public abhorrence of crime and that justice demands that someattempt be made to impose punishment fitting to the crime.

The British Royal Commission, after making an exhaustive study of the issue of capitalpunishment and its deterrent value, in their Report (1949-53), concluded.The general conclusion which we reach, after careful review of all the evidence we havebeen able to obtain as to the deterrent effect of capital punishment, may be stated asfollows. Prima facie the penalty of death is likely to have a stronger effect as a deterrentto normal human beings than any other form of punishment, and there is some evidence(though no convincing statistical evidence) that this is in fact so. But this effect does notoperate universally or uniformly, and there are many offenders on whom it is limited andmay often be negligible.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 theaftermath of assassination of Prime Minister Bandernaike in 1959, Ceylon hurriedlyreintroduced capital punishment for murder.In the U.S.S. R. (Russia), as many as 18 offences are punishable with death. In Russia, atpresent, there are several offences committed in peacetime which are punishable withdeath under the RSFSR Criminal Code.In California another study from the Rand Co-operation, suggests that keeping habitualcriminals locked up would do more to reduce crime than any rehabilitation efforts.Despite treatment or preventive measures, habitual criminals commonly go back to crimeafter they are released from prison, the study showed. In addition, the study found thatdeterrence to crime was in direct proportion to the relative certainty of going to jail, after being caught