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--------------- Print Magazine --------------
  May 2016
  April 2016

Constitutional Validity of Death Sentence

Bachan Singh v. State of Punjab , AIR 1980 SC 898: 1982 (1) SCALE 713: (1980) 2 SCC 684: (1983) 1 SCR 145

Facts : Bachan Singh, the appellant in this case, was tried and convicted and sentenced by the Sessions Judge to death under section 302, Indian Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai. The High Court confirmed his death sentence and dismissed his appeal. He appealed to the Supreme Court by special leave. A Bench of the Supreme Court consisting of Sarkaria and Kailasam, JJ. heard the appeal and directed the records of the case to be submitted to the Hon'ble Chief Justice, for constituting a larger Bench to resolve the question of constitutional validity of death penalty for murder provided in section 302 of the Indian Penal Code, and the sentencing procedure embodied in sub-section (3) of section 354 of the Cr.P.C., 1973.

Issue: Constitutional validity of death penalty for murder.

Judgment : Article 21 clearly brings out the implication that the Founding Fathers recognized 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 the 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 or 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, Indian 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.

Sections 432 and 433 of the Code of 1973 continue sections 401 and 402 of the Code of 1898, with necessary modifications which brings them in tune with Articles 72 and 161 of the Constitution. Section 432 invests the "appropriate Government" as defined in sub-section (7) of that section with power to suspend or remit sentences. Section 433 confers on the appropriate Government power to commute sentence, without the consent of the person sentenced. Under clause (a) of the section, the appropriate Government may commute a sentence of death, for any other punishment provided by the Indian Penal Code.

Section 354 (3) 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.

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) of the Code of 1973, 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.

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.

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.

Held: Section 302 of the Indian Penal Code insofar as it provides for the death sentence as also section 354(3) of the Code of Criminal Procedure, 1973 is constitutionally valid.

Exercise of discretion under section 354(3), Cr.P.C. should be in exceptional and grave circumstances and imposition of death sentence should only be in rarest of rare cases.

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