DEENA@DEEN DAYAL ETC. ETC. v. UNION OF INDIA AND OTHERS

DEENA@DEEN DAYAL ETC. ETC. A v•.

UNION OF INDIA AND OTHERS

September 23, 1983

.. B

Code of Criminal Procedure, 1973-S. {54(5)-Exbition of death sentence-Hanging by rope-Whether violative of Art. 21 ? c Constitution of India, 1950-Art. 21-Execution of sentences lawfully imposed-Mandate of Art. 21 is that sentence shall not be executed in a cruel, barbarous or degradini manner. > Constitution of India, 1950-Art. 21-Burden of proof-lf it ap/;ears that a person is beingdperived of his life or personal liberty, the burden is on the D State to establish the constitutional validity of ilnpugned iaw.

Judicial Review-To pronounce upon constitutionality of law· is not legislating even if su<h pronouncement involves value judgn1erit.

The petitioners who had beeil sentenced to death for the ~offence of murder were awaiting execution of the sentence. Their plea Was that hanging E by rope is a cruel and barbarous 1nethod of executing the sentence and s. 354(5) Cr. P.C. which prescribes that method is violative of Art. 21 of the Constitu- tion The respondents raised a preliminary objection that the question had ,, already been concluded by the decision in Bachan Singh v. State of·Punjab, [1983] l S.C.R. 145. The objection was overruled.

Counsel for petitioners contended thats. 354(5), Cr. P.C. is bad because it is impermissible to take human life even under the decree of a f;urt since il is human to take life. under any circumstances; that by reason of the provision contained in Art. 21, it is _impennissible to cauSe pain or suffering > of any killd whatsoever in the execution of any sentence, n1uch more so while exe<;uting a death sentence; that the n1ethod of hanging prescribed by s. 354(5) G for e:>:ecuting the death sentence is barbarous, inhumt_1.n and degrading; that it is the constitutional obligation of the State to provide for a humane and dignified method for executing the death sentence. which does not involve torture of .iny kind; and that if the method ~rescrib7d by s. 354(5) 'does not meet this requirement, no death sentence can be executed since no other method for executing that sentencd is prescribed by or is permissible under B the law. Counsel also referred to the judgment in Machhl Singh v. State of Punjab, [1983] 3 S.C.C. 470 and suggested that it virtually overrules Bachan Singh.

2 SUPREME COURT REPORTS ( 1984) I s.c.Ji. • Counsel for respondents conteflded that a sentenee lawfully imposed by A a court can and has to be ~xecuted, though by cau~ing the ieast pain and suffering and by avoiding torture or degradation of any kind; that the method prescribed bys. 354(5), Cr. P.C. for executing the death sentence is a humane and dignified method involving the least amoUnt of pain and cruelty; that no other method of executing 'the death sentence· is quiCker o'r less painful; and that Art. 21 does not postulate that no pain-- or suffering whatsover shall be caused in the execution_of a sentence Ia:-vfully imposed by a court, inciuding B the sentence of death. Courisel further submitted that ullless on the face of , ' ,(

it, the meth_od prescribed by for executing law a sentence is revolting to conscience, courts must surrender their discretion to legislative judgment when the challenge to the constitutionality of the law is based on consider.ltions which the court is not equipped to evaluate by manageable judicial standards, and contended ,that the court's evaluation of the method of hanging prescribed. c by law shall have to be inevitably subjective, almost to the point "Of being legislative in charcter. which.must be avoided at aJI costs. v. Dismis~ing th~ petitions, .

(a) The material placed before the Court shows that hanging by rope ·•is not a cruel inode of executing the death sentence : the system consists of a mechanism which is easy to as~emble ; preliminaries to the act are qujck and simple and are free from anything th~t would un,necessarily sharpen the poignancy of the prisoner's apprehension ; the chances of accident during the course of hanging can safely be excluded ; tti.e 1nethod is quick and certain and eliminates the possibility of a lingering death; unconsciousness supervenes almost instantaneously after the process is set in motion and death follows as a result of dislocation of the cervical vertebra:e. The system of hanging, as '. now used, aVoids to the' full extent th~ -chances of strangulation which results on account dr too short a drop or of decapHatioll which results on account of " F too lOng a drop. The mechanics of .the method of hanging have undergone significant improvemi:rlt over the years and hanging has been almost perfected 1 into a science. The system iS"'conslstent with the obligation of the State to ensure that the process of executiori is con'ducted with decency and decorum without involving degra-;1.ation or brutality of any kind. At the moment of fin~l impact when life becomes extinct, some physical pain would be implicit in the very Process of the ebbing out of lif~. But, the act of _hanging causes the least pa1n imaginable on account of the fact that death supervenes instan- taneously. The coD.clUsion that the system of hanging is as painless as is possible in the .circumstaiices, that it causes no greater pain than any other known method of executing the death sentence and that it involves\ no _barbarity, torture or degradation ·is based on reason, supported by expert evidence and the findings of modern medicine. [58 C-H, 59 A]

Repqrt of the Royal Commission on Capital Punishment (U:R..), September, '1953; 35th Report" of the LAw Comn1ission of India on Capital PunishmC'nt, ' .

DEENA V. UNION 3 {.: Sepember ~O. 1967; George R. Scott: Hanging Through t~e. Ages (Torc~str~a,m 1 Books, London); J ~V. Cecil Turner (Ed.). Kenny•s f)utlines of Criin{na! L~W, A 19th Ed., 1966; Harry Eln1er BarneS and Negley K. Teeters: New Horizons 'in Criminology, 3rd Ed., 1966; C!.N. Deparin1ent of Economic , and Sor:i~I A.Jill/rs : l Capital Punishment, (New York, 1962); and Bachan Singh, [1983] I S.C.li:. J4S referred to. ~.

;. (b) On the question 9f pain involved in a-punishment, thci concern of _,. law has to be to ensure that .the various steps .which are attendent upon or n incidental to the execution of any senience, more so the death sentence, do not

.,.,_ constitute punishments by themselves. Humaneness is the hall-mark of -civilized Ja\vs. ]fa prisoner is sentenced to death. it is lawful to execut~. that punishment and that only. He· cannot be subjected to barbarity, humil"i~tion. torture or degradation before the e'xecution of that sentence, not ev:en as necessary steps in the execution of that sentence. The process 9f· :ti3nSins: does not inv_olve any of these direc~Iy, indirectly or incidentally. l5.9 ·~-J;>l. c (c) Hanging by rope was the only method of executing the death > sentence which was known to the Constituent Assembly and y~t it did not express any disapproval of that method, though it touched upon the ques~ion of death sentence while dealing with the President's power of pardon undet ·Art. 72(l)(c) of the Constitution. [58 BJ' . . ' D \ ~---- (d) The system of hanging by rope -is. in operation in large parts of the civilized world and there is a responsible body of scientific and legal opinion which holds that hanging by rope is Dot a cruel mode of executing the death sentence. 57 H, SB A] E (e) Hanging as a mode of execution is not relentless in its severity. Judges ought not to ;lssume that they are endowed with a divine insight into the needs of a society; they should heed the warning that, as history amply •·. proves, the judiciary is prone to nlisconceive the public gOod by confoundin& prjvate notions with constitutional requirements. [62 G~H:, 63 A] F (f) ' , The <;ourt is n6t required to determine the merits and d~rµ.erits _of the alternative methods of- execution which are in vogue elsewhere because the Court cannot substitute any other method of exec.ution f0~ th~ methOd ) prescribed by law. However, an understanding of the process invo)ved_in, t}:le competing ·methods used for executing the death sentence is not altogether , pointless because if some other method has a real and definite advantage over the met ho~ of hanging, arbitrary rejection of that method by the. State may not answer the constitutional prescription. However, neither electrocution, QOr lethal" gas,· nor shooting, nor ev~n the lethal ,injection has any distinc~ or demonstrable advantage over the system of hanging. The general belief that death by electrocution is entirely painless is not fr_ee.from doubt. That apart,, · failure of electrical energy supplied by commercial undertakings has be.en 'H considered ·in America as an impediment in the use of the electric chair. With frequent failures of electric power in our country, the electri(! chair will bec9me an instrument of torture. Lethal injection.is by and large an unttjed

SUPREME COURT REPORTS [1984] 1 S.C.R. method. The injection is required to be administered intravenously which is ·A a delicate . and skilled operation. The Royal Commission on Capital Punishment (U.K.) was not satisfied that executions carried out by the . ·administration of lethal injections would bring about_ death more qlltckly, painlessly and decently in all cases. Shooting by a firi1:Jg squad, apart ftorn being unreliable, is an u'nCiviHsed method of extinguishing life. It is the favourite pastime of military regimes which trample upon human .rights with impunity. It is most reck~essly and wantonly used for liquidating opposition and smothering dissent in countries which do not respect the rule of law. Murders by shooting are becoming a serious menace to law and order. in our country. Shooting by the State in order to kill for executing the order -.of a court will unwittingly confer respectability on the 'shooting to kill' tactics which are alarmingly growing in proportion, The suggestion that a death- convict may be put to sleep by a sleep-inducing injection before applyiog ·~ c other methods such as electrocution or gas chamber, is not only impracticable but Would appear to involve coffip1ications and torture to an uncommon degree. [50 F·H, 57 E, 53 F, 54 n, 56 c, F, 55 G-H, 56 A-B, 56 G, 57 A)

(g) Matters of policy are certainly for the_ legislature to consider and therefore, by what mode or method the death sentence should be executed, is ' -D .. fOr th'e legislature to d'ecide. But the function of the legislature ends with providing what it co~siders to be the best method of executing the death sentence. Where the function of the legislature !!nds, the function of the judiCiiir)l' begins. It is for the courts to decide upon the constitutionality of the method prescribed by the legislature for implen1enting or executing a sentence. -Whether that method conforms to the dictrtes Of the constitution is a matter not ·\ o'nly subject to judicial review but it constitutes a legitimate pa.rt of the judicial function. The question whether the particular method prescribed by law for eXccuting the death sentence is in consonance with the Constitution

r inevitably involves' a value judgment based upon a comparative evaluation of ;lternate methods for executing the. death sentence. But mOre than any such· comparative evaluation, the court's plain and primary duty is to examine whe· 'th.er, 'Cven if the method selected by the legislature is the least objectiOnable, • it is still Open tq the objeCtion that it involves under torture, degradation or cruelty. The Court's task will end with pointing out why, if at all, the method at preseflt p'rovided by law is contrary to the mandate of the constitution. 'f~ pro!J.ounce upon the constitutionality of the law is not legislating, even if such prOnouncement involves the consideration of the evolving standards of the sockty. [35 A-C; E-FJ

2Copy pinpoint2. (a) The contention that it is lnhun1an to kill under any circumstances and that Art. 21 imposes a total prohibition on the taking of human life has to be rejected. If the argument were to be accepted, the imposition of death sentence would bec~rne an e~ercise in futility. Indeed, if carried to its logical conclusion, the argument will make it ·impossible to execute any sentence whatsoever, particularly of i1nprisonment because of. every sentence of imprisonment necessarlly involves pain and suffering to a lesser or greater degree. A cOnstitution so carefully conceived as ours cannot be construed to ·produce suc;:h a st~rtling: result. Painl~ss punishment is a contradiction in

DEENA v. UNION

teri:nS. if it is ]awful to impose the sentence of death in appropriate cases. it would be lawful to execute that- sentence in an appropriate manner. .'.:fh• mandate of Art. 21 is not that the death sentence shall not be executed but that it shall not, be executed in a cruel, barbarous or degrading manner. When the sentence of death is constitutionally valid, not even the sophisticated sensitivities can justly demand th it those upon whon1, the extreme penalty of law is imposed because of the magnitude of their crime should not be mide to suffer the execution of that sentence, u~acco'mpanied b:Y torture or degrada- tion of any kind. If the larger interests of the community as opposed to ..ihe interests of an individual require that a death sentence should be imposed in an exceptional class of cases, the san1e societal interests ·would justify the 1 execution of that sentence, though in strict conformity with the requirement! of Art. 21. [59 G, 60 C-D, 59 H, 60B F-G]

(b) The argument that either death sentence is barbarous Or that •the method of hanging is cruel, ·inhuman or degrading cannot draw any sustenance from the Eighth Amendment Clause of the U.S. Constitution. The American • Supreme Court has formulated a sophisticated definition of that clause which has a dynamic content Several concurring opinions show that, in America, capital punishment is not considered to be violative of the Eighth Amendment . .) What the Eighth Amendment prohibits is' 'something inhuman ~nd barbarous and something more than the mere extinguishment of life'', . Tf.e suffering D necessarily invoJoved in the execution of death sentence is not banned by th!= Eighth Amend1neol though the cruel form of execution is. [62 F-G, 61 F, 62 D-EJ

Kem1nler, 136 U.S. 436; O'Neil v. Vermont, 144 U,S. 323; Trop v. Dulle!, 356 U.S. 86; and Louisiana v. Resweber, 329 U.S. 459; referred to. ··E

3Copy pinpoint3. (a) There his to be finality to litigation, criminal as well as civil, if law is not to lose its credibility. No one of course 5an question that law is a dynamic science, the social utility of which consists in "its ability to keep > abreast of the em~rging trends in social and scientific advance and its willin~­ ness 'to readjust its postulates in order to accommodate those trends. But, that is not to say that judgments rendered by this Court. after a full debate should be rebonsidered every now' and then and their· authority doubted or diluted. That would be doing disservice ~o ~w sin~e certainty over a reasonably foreseeabfe period is the hall-mark of law. [ll F~J > The question that, in.the circumstances mentioned in Bachan Singh, it ,is .G permissible to impose the sentenCe of death for the offence of murder must h• treated as concluded and not any longer open to argument.~ In Machhi Singh, ,the learned Judges have hut formulated broad guidelines fo assist the Courts in deciding the vexed question as to whether the death sentence is at all ca~led for. Evidently. the judgment does not enlarge the scope of the rule in Bach(ln Singh by broa:dening·the narrow field of cases which call for the death sentence. The constraints of Bachan Singh deserve to be preserved but that means that it is only a rare degree of malevolence which invites and justifies the imposition of death sentence. [11 B-D]

'li SUPREME CoUR'r Ji.EPORTs . it984l i s.c.Ii.. Bachan Singh v. State of Punjab [1983] 1 S.C.R. 145; and Mach/ii Singh - v; State of Punjab, [1983]; 3 S.C.C. 470 referred to .

.(b)"Both the majority and the n1inority in Bachan Singh considered the Q.uestion of the validity of the death sentence from the procedural aspect also, Whh special reference to the method of hanging prescribed by law for executing the death sentence. Nevertheless, the ·question whether the particular mode : of executing the death sentence prescribed by sec. 354(5) Cr. P.C., violates the B provisions of Art. 21 of the Cl?nstitution was not directly and siJbstantcially in issue in Bachan Singh and it was not considered specifically by the m3jority as an independent issue. :It would not~ be proper to sidetrack that the question . 3.nd "refuse' to examine it fully becaus~ of the incidental consideration which it. received in Bachan Singh. [14 D, H, 15 C·D]

·-c (c) The retribution involved in the theory 'tooth for tooth' a,nd 'an eye for eye' has no place in the scheme of civilized jurisprudence and the co.urt 0

cannot turn a deaf ear to the petitioners' cl~im for justice on the ground that the ·enormity of their crimes has resulted in grave injustice to the victims of those crin1es. The c·ourt is concerned to ensure due compliance with constitutional mandates,·no matter the occasion. Justic~ has to be done disP3.ssionateiy in accordance with the constitutional attitudes whether it is a ;murCierer'or a smuggler wlio ~sks for it. Law cannot demand its pound of flesh. [16 E-GJ ·

Per Chandrachud, c:J. and -Pathak, J. (Sabyasachi Mukharji, J. reserving his opinion on the point) E ~

4Copy pinpoint4. In cases arising under Art. 21 of the Constftution, if it appears that a person ls beiOg depdved of his life .'Or has been deprived of his Personal liberty, the burden rests on the State to establish the constitutional -validity -of the impugned law. [32 F]

There is a fundamental distinction between cases ar1s1ng under. Art. 14 " · 8nd those which arise und~r Arts. 19 and 21. Jn the generality of cases under 'Art. 14, the challenge is ba·sed on the allegation that the in1Pugned provision is 'discriminatory since it singles out the petitioner for hostile treatment from amongst persons who, being situatid similarly, belong to the same class as· the petitioner and the petitioner has to plead and prove that there are others who are ·situated sinlilarly as him and that he is singled out and subjected to G · unfavourable ·treatment. Whether there are other persons who are situated ···Sirllitarly··aS the petitioner and whether he is subjected to hostile discrimination 1 arc ·questions of fact and ·the burden to establish the existence of these facts tests· on the petitioner. In a challenge based on the violation- of Art. 19 or ··Art:-21 the petitioner has undoubtedly to· plead that, for example his right tO free.speech and expression is violated or that he is deprived of hi~ right to , life·or personal liberty. But once he Shows that, which really is not a part of ' the ·burden of proof, it is for the State to justify the impugned law or action by proving that, fot example, the deprivatiOn of the petitioner•s right to free speech and expression is saVed by cl. (:i) _Or Art. 19 since it is in the

DBENA v. tiNION Dature of a reasonable restriction on that ·right in the interests of matters mentioned in cl. (2), or that, the petitioner has been deprived of his life A or personal liberty according to a just, fair and reasonable procedure established, by law. In cases arising under Art. 19, the burden is never on the petitioner to prove that the restriction is not reasonable or that the. restric~ tion is not in the interests of matt.ers mentioned in cl. (2). 'Likewise, in cases arising under· Art. 21, the burden is never on the petitioner to prove that the procedure prescribed by raw Which deprives him of his life or perSonal liberty is unjust, unfair or unreasonable. As soon as it is shown that the Act invades B a right gaaran1teed by Art. 21 it is necessary to inquire whether the State has • proved that the person has been deprived of his life or personal liberty accor- ding\to procedure established by law, that is to saY by ·a procedure which is first, fair and reasonable. [23 D·H]

Any case, even a locus classicus is an authority for what it decides. It is permisuible to extend the ratio of a deci~ion to cases involving identical situa- c tions; factual and legal, but care must be take~ tO see that this is not done mechanically, that is without a close examination of the rational of the decision which is cited as a precedent. Human mind, trained even in the strict disci- .. pline of law, is not averse to taking the easy course of relying on decisions which have become famous and applying their ratio to supposedly idnetical D situations. [21 G·H]

Saghir Ahmed v. State of U.P., [1955] l S.C.R. 707; Khyerbari Tea Co, v. Slate of Assam, [1964] 5 S.C.R. 975; Western U.P. Electric Powef & Supply Co. Ltd. v. State ofU.P., [1969] 3 S.C.R: 865; Mohd. Faruk v. State of M.P., (1970] J S.C.R. 156; Laxmi Khandsari v. State of U.P., [1981] 3 S.C.R. 92; and Bachan Singh v. State of Punjab,,[!983] I S.C.R. 145; referred to. E

Ram Krishna Dalmia v. Justice S.R . Tendolkar, [1959] S.C.R, 279; M),hd, ' HaniJ Quareshi v. State of Bihar; tl959] S.C.R. 629; Madhu Limaye v. Sub· Divisional Magistrate, (19711 2 S.C.R. 711; and Pa1hu1nma v. State of Kera/a, [1978] 2 S.C.R. 547; explained and distinguished . • .F B Baneriji v. Anita Pan, [1975] 2 S.C.R. ·114; decided per incurium.

Jn the instant case the impugned statute, on the face of it, provides for a procedure for extinguishing life. Therefore, not even th·e initial obligation to show the fact of dep;ivatiori of life or liberty rests on the petiti.oners. The State mu~t establish that the procedure prescribed by s. 354(5), Cr.. P. C. for ,G executing the death sentence is just, fair and reasonable. [33 A-Bl

Per Sabyasachi M.ukharji, J . • <.· As soon as it is shown that a Statute or Act in question invades a right guaranteed by Art. 21, it is necessary to enquire whether the State has proved that the prisoner has been depriv~d of his life or personal liberty according to procedure established by law. However, at present I would not express mY

SUPREME COURT REPORTS [i984J 1 s.cJL opinion whether in all such cases, the State has a fufther initial burden -to A prove that procedure established by law isjust, fair and reasonable. [63 E-~] -~

ORIGINAL JURISDICTION: Writ' Petitions Nos. 503, 516, 532,, 1 534, 535, 537, 538-39, 541-42, 543-45, '553, 554, 555, 565, 574, 586, J. 556-57, 592-94, 604-06, 676, 600, 533, 1414 and 1423 of 1983. B (Under article 32 of the Constifotion of India)

WITH .. -~ Special Leave Petition (Criminal) No. 196 of 1983. c . Froin the Jndgment and Order dated the 6th December_, 1982 >· \ of the Allahabad High Court in Criminal Appeal No. 1357/82.

AND . D Writ Petition. Nos. 286, 345-48, 428, 429 of 1983. •

. (Under article 32 of the constitution @f India)

Advocates For The Petitioners E N.M. Ghatate and Mr. S. V. Deshpande - in WP. 503. 1

R.G. Kohli, A.G.-:- in WPs. 5\6 and 586. a. R.K. Garg, R. Sathish· and V.K. Pandita, -: in WPs, 534 and I

F 565. ' \ \ · A.N. Bardaiyar and B.B. Sinha - in WP. 535.

A.K. Srivastava, A.G. - in WP. 537, G O.P. Verma '-- in WPs. 538-539.

Mrs. K. Hingarani - in WPs. 541-42. ·

B.S. Varshney and G.L. Sahu - in WPs. 543-45. H • L.K. Gupta - in WP. 553.

Raju Ramachandran - in WP. 555.

bEilNA v. UNION

· Miss Kai/ash Mehta and Mrs. Naresh Bakshi - in WPs. 5652

600. A Arun Madan, A.C. - in WPs. 556·557.

V.D. Khanna - in WPs. 604-06.

S.N. Mehta, A.C. - in WP. 676. B Anil Kumar Gupta and Brij Bhushan - in WP. 533.

D.K. Garg - in .WP. 1414, 1697-98 and 286.

Aruneshwar Gupta in -,- WP. 1423. c S.K. Mehta, P.N. Puri and M.K. Dua - in S.L.P. No. 196/83.

Solmon Khutshid and L.R. Singh - in WPs. 345-48.

Miss Lalita Kohli, A.C. - in WP. 429. D Petitioner in Person - in WP. 532.

Nemo in WPs. WPs. 534, 574, 529-94 and 428.

Advocates For the Respondents : 1 E K. Parasaran Soliciter General, for State of Maharashtra and U.O.I. K.G. Bhagat Additional Soliciter General, • N.C. Talukdar, Anil Dev. Singh, C. V. Subba Rao and. Miss F A. Subhashini '\ /

M.N. Shorff for State of Maharashtra.

A. V. Rangam for State of Tamil Nadu. G Swaraj Kaushal for State of Karnatka.

Harbans Singh and D.D. Sharma for State of Punjab. R.N. Poddar for State of Haryana. H Da/veer Bhandari for State of U.P. B.B. Singh for State of Bihar.

r 'to . SUPRllME COURT REPORTS · iI984l i s.c.R..

Ram Jethmalani for State of Karnatka and for interveners. A Miss Rani Jethmalani iind Shrikant Bhat, in WP. Nos. 532, 534 and 535 of 1983.

Chandrakant Lecturer in the Department of Forensic Medicine, B · Aii India Institute of Medical Sciences, intervenor-in person iri WP. No .. 503. .

The Judgment of the Court ,wa·s deliver:d by

c CHANDARCHUD, C.J. : . In this batch of Writ Petitions, the petitioners were sentenced to death for the offence of murder under section 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 imp~sed u.pon them' has become final in the sense that the Special .Leave Petitions, Appeals, Review Peti- ( D tions 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 petitions relates to the validity of the mode of execution of the death sentence. \ E Section 354(5) of the Code of Criminal Procedure provides that: '

When any pers~n is sentenced to death, the -sentence shall° direct that he be hanged J;>y the neck till he is dead.

The petitioners challenge the constitutional validity of this provmon on the ground that hanging a convict by rope is a cruel and barbarous metho.d of executing a death sentence, which is violative of Article 21 of the Constitution That article provides that : G No person shall be deprived of his life or personal liberty except according to procedure established by law.

The validity of death sentence which Section 302 prescribes for H the offence of murder was upheld by this Court in Bachan Singh.(')

(1) [19831 1 S.C.R. 145:

-nEENA v. UNION (Chandrachud,C.J.) Ii The ratio of that decision is that the normal sentence for murder iS .)ife impr.isonment and that the sentence of death can be. imposed in a very iexceptional 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. Bu~, all the same, a . studied attempt was made by this Court in Machhi Singh( 1) to identify, though not to· \ . B crystalize, the area of those rarest of rare cases in which death sen- tence can justifiably be ·imposed. Shri Garg's criticism of that judg" J)'.1ent that it virtually overrules Bachan Singh and' Jagmohan Singh(') is wide off the mark. In Machhi Singh, the learhed J~dges have but , formulated. broad guidelines to assist the Courts in deciding the vexed question as to whether the death sente.nce is at all called for. c 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 D sentence for the offence of murder having b.een upheld by this· Collrt 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 conclusiqn of the arguments. 'The question that, in the .circumstances mentioned in Bachan Si11gh, . it is permissible to impose the sentence of death must be treated . as E .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 abrea.st of the emerging trends in soda! and scientific advance and F its willingness to readjust its ·postulates in order to accommodate those trends. Life is not static. The purpose of law is to serve the needs of life. Therefore law cannot be static. But, that is not to s1y th>t J udgme»ts rendered by this Court .after a full debate should be reconsidered every now and then· their authority doubted or diluted. That would be doing disservice to law since certainty over G a reasonably foreseeable period is the hallmark of law.

The learned Solicitor General · has. raised a preliminary objection to these Writ Petitions on .. the ground that the question. H (I) [1983] 3 S.C.C. 470. (2) [1973] 2 S.C.R. 541.

12 ' SUPREME coiill.T REI'ORTS (1984) l s.c.R.

A 'which is sought to be argued by the petitioners is concluded by the judgmeut rendered by a Constitution Bench of this Court in Bachan Singh. It is tirged 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 eutertain it. Learned counsel for the petitioners, led by Shri R.K. Garg, answer this objection by contend- B ing 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 sec)ion 354(5) of the Code of Criminal Procedure .was neither argued in Bachan Singh n.or considered by the Court. c 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. At page . 196 of the Report in· D 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 : "Exe,cution by whatever means and for whatever offence is cruel, inhman and degrading punishment", E, by which is obviously meant 'execution of death sentence'. The argument mentioned in clause (a) to the effect that the death penalty is unconstitutiOnal because it is irreversible is considered at pages 196 and 197 of the Report. The arugment mentioned in clause (b) as to whether death penalty serves any penological purpose at all is considered at page 197. Though the arugments mentioned in clauses (a) and (b) at page 196 of the Report have been specifically considered under separate heads as stated above, the argument mentioned in clause (c) at page 196 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 page 222. Th~ heading "Regarding (c)" should have appeared in the Report after the said third line and before the fresh paragraph which beings thus : "We will· now consider the issue whether the impugned limb of the provision.in section 302, Penal Code, contra- H venes Article 21 of the Constitution". That this should have been •o is clear from the fact ·that after considering the particular argument at pages 222 and 223, Justice Sarkaria who spoke for the majority concludes : 'I

DEENA v. UNION (Chandrachud, C.J.) ' "Under the successive Criminal Procedure Code • which have been in force for about 100 years, a sentence of death is to be carried out by hanging. In view of the , afore'said constitutional postulates, by no stretch of imagination can it be said that the death penalty under Section 302; Penal Code, either per se or because of its execution by hanging, constitutes an unreasonable, cruel B > or unusual punishment. By reason of the same consti- tutional postulates, it cannot be said that the framers of the Constitutiou 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 c to the Constitution".

Bhagwati, J., who dissented from the majority considerded the question of the constitutional validity of the death. sentence, both from the substantive and the procedural points of view. At page 286, D the learned Judge says that "the worst time for most of the con- demned prisoners would be the last few hours when all certainty is gone and the moment of death is known", After extracting quotation from Dostoyevsky and Canns which bear upon the execution of death sentence, the learned Judge observes : "There can be no stronger words to describe the ·utter depravity and i.nhumanity of death sentence". After making this observation Bhagwati, J., proceeds ' thus : ·

"The physical pain and suffering which the execution of the sentence of death involves is also no le$s cruel and inhuman. In India, the method of execution followed is haQging by the rope. Electrocution or application of lethal gas has not yet taken its place as in some of the western countries. It is therefore with reference to execution by hanging that I must consider whether the sentence of death is barbaric and inhuman as entailing physical pain and agony. It is no doubt true that the ·Royal Commission on Capital Punishment 1949-53 found that hanging is the most humane method of execution and so also in Ichikawa v. Japan, the Japanese Supreme Court held that execution by 'hanging does not corres- ,H pond to ·cruel punishment' inhibited by Article 36 of the Japanese Coi;istitution. But whether amongst all the

14 SUPREME COURT REPORTS (1984) 1 S.C.R. ' methods of execution, hanging is the most humane or in A view of the Japanese Supreme~Court, hanaging is not cruel punishment within the menaing of Article 36, one 'thing is clear that hanging is undoubtedly accompained by ii'ltense physical torture and pain.'' (emphasis ours).

B Thereafter, the learned Judge refers to the description of the' method of hanging given by warden Duffy of San Quentin, a high security prison in America and the description given in 1927 by a surgeon who witnesses a double execution and records his conclusion by saying that ,the passages extracted by him established beyond doubt that "the execution of sentence of death by hanging does involve intense c physicial -pain and suffering, through it may be regarded by some-as more humane than electrocution or applicatitm of lethal gas."

This discussion will .show. that both the majority and the , minority in Bachan Singh cons.idered the question of the validity of '. 0 • the death sentence from the procedural aspect also, with special reference to the method of hanging prescribed by law for executing the death sentence. While upholding the validity of death sentence; the majority did not overlook and, in fact, took into consideration the cirmustance that the mode prescribed by 'the Criminal Procedure Code. for executing the dea.th sentence is hanging. On~the other -\ E hand, while striking down the validity of death sentence Bhagwati, '

J., was influenced by the consideration that the mode of hanging prescribed by law for executing the .death sentence was itself cruel and bar)Jarous.

F Though this k 'the true position, the reason why we are not inclined to uphold the preliminary objection ·taken by the learned Solicitor-General is that the , question as regards the consti- ,_. tutional validity of sectfon 354 (5) of the Code of Criminal Procedure was neither raised squarely by the petitioners in Baqhan Singh nor G considered directly by the Court. · If we may so put it, the . questiqn as regads the validity of section. 354 ( 2) of the Code was not directly and substantially in issue in Bachan Singh. The questions which ·arose for consideration in that case are formulated in the . majority judgment at p~ge 169 as Questions I and II. The ·H , majority referred to the mode of execution of the death sentence only incidentally. The question whether the particular !'node of executing the death sentence prescribed by section 354 (5) of the Code violates the provisions of Article 21 was Jiot considered specifi

DEENA v. uNioN (Chandrachud, C.J.) ts cally by the majority as in independent issue: Considering the judg• ment of Bh_agwati, J., also as a whole, it would appear that the principal reason for which the ·learned Judge struck down the death oentence is its itrevoc~bility, ils arbitrariness and its lack .of. purpose. 01e of us was a party to the decision in Bachan Singh and if recollections do not fail so soon and are permissible ! aids to the understanding of a decision it would not be right to say that the qu~stion as regards the constitutional validity of -- . section 354 ( 5) of the Code was either directly put in issue in that case or ·_was argued upon or was considered by the Court as an independent reason bearing upon the validity of the death sentence. The question wliich the petitioners have raised in these writ petitions is importaJlt not only from the legal and constitutional point of view c but also from the sociological point of view. It will not be proper to side-track that_ question and refuse to examine it fully because of the incidental consideration which it received in 'Bachan Singh. - Accordingly, we reject the preliminary objection raised by the learned Solicitor General and proceed to examine the question raised by the petitioners on its own merits, on the basis that the question is still open to argument.

The petitioners, who have been sentenced to death for acts of outrageous brutality, have presented their case with _an air of injured innocence. Their claim is that no· matter what pain and suffering they may have iiifiicted upon their viCtims and their families, no pain or suffering whatsoever sh'all be caused to them while executing the 'death sentence. It is urged on their behalf by Shri R.K. Garg and the other learned counsel that ·even if it may be ' lawful to impose the death sentence in an exceptional class of cases, it is impermissible to execute that sentence even in those cases, since it is inhuman and cruel to take human life under any · circumstances, _ even under a decree of a Court.· That is the fundamental premise / of the petitioners' contention. 'Secondly it is urged 'that the method prescribed by section 354(5) of the Code for executing the, death sentence is inhuman, barb.arous and degrading and therefore that method cannot be employed for executing the death sentence. It is the constitutional obligation of the _State to provide for a humane and dignified mo,de of executing· the death sentence, which will not _involve torture or cruelty of any kind. It is urged that if the State fails to discharge that obligation, no death sentence cari be .executed, howsoever justifiably it may have been imposed. The Code of Criminal Procedure prescribes only one. method of executing the •

16 SUPREME COURT l\EPQRTS [ 1984] 1 s.c.R.

death sentence, namely, by hanging and if that method violates the • A mandate of Articie·21, the sentence must remain unexecuted, since the Court cannot substitute any other method of execution for the only method prescribed and envisaged by law. Finally, it is argued that the burden·is on the State to prove that the method of execu•. tion of the death sentence prescribed by section 354(5) of the Code B is a humane and civilized method and that it does not involve pain, cruelty or degradation of any kind. This is so because, the burden to establish that any particular act, challenged as unconstitutional, is just and fair always lies on the State. 'l'herefore, it is not for the petitioners to show that any other method of executing the death sentence would be less painful, cruel or degrading. According to c the petitioners, ·the State must fail if it does not discharge the . burden which lies heavily upon it. The petitions cannot be dismissed on the ground that the petiti,oners have .failed to establish that the method prescribed by section 354(5) involves unnecessary pain, torture or cruelty; or that other methods of executing the death sentence are either not cruel or painful or are less cruel and painful' than the method prescribed by section 354(5) of the Code. These arguments require careful consideration, uninfluenced by the circumstance that the demand for civilized, huµiane and painless treatment is made by those who have been found guilty of subject· ing their victims to uncivilized and inhuman acts involving great torture and suffering. The retribution involved in the theory "Tooth for tooth' and 'an eye for eye' has no p)ace in the scheme of civilized jurisprudence and we cannot turn a deaf ear to the petitioners' claim for justice on the ground that the ·enormity of their crimes bs resulted in grave injustice to the victims of these crime. • F We are 'concerned to ensure due complaince with constitutional mandates, no matter the occasion. If it were not so, smugglers who are detained undet the laws· of detention shall have to be denied the protection of Article 22 of the Constitution on the ground that they are guilty of acts which sabotage the economy of. the country. Justice has to be done dispassionately in accordance with the G constitutional attitudes whether it is a murderer or a smuggler who asks for it. Law cannot demand its pound of flesh.

At one stage we were inclined to decide the main question_ t H argued by the petitioners without considering the rival contentions as to the burden of proof. , We thought that whether the burden lies on the petitioners to show that the method prescribed by section 354(5) of the Code is constitutionally impermissible or whether the

DEENA v. UNION ( Chandrachild, . '. C.J.) !7

burden lie;; on the State to prove that the particular method is permissible within the frame work of the Constitution, we should pronounce upon the legality of that method on the basis of .the data which has been placed before us by the· both sides. The question of burden of proof ceases to have the same importance when the entire evidence is before the Court, each· side having placed before /

it such material as it CQilSid.ers necessary to support its c:;ise. But B then, the fact that parties have prod•1ced their respective data· before the Court does not absol\'e the Court from considering the question whether, on the basis of the entire material before it, the burden can be said to have been discharged by the party on whom it lies. Besides, counsel engaged themselves into quite some argument over the question of burden of -proof and since that question is of c importance and arises frequently, it is just as well that we decide it. We propose to decide that question before adverting to the . other contentions raised on behalf of the petitioners.

It is urged by Shri Jethmalani who appears on behalf of the D Gov~rnment ot Karnataka, as also on·behalf of the Bar Bou'ncil of India who were allowed to intervene in these proceedings, that every statute carries with. it a strong presumption of constitutionality and a heavy burden lies upon those who challenge that statute to dis- place that presumption. In support of this submission, the learned counsel relies principally on the decision of a seven-Judge Bench of this Court in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr('), which, he says, was not noticed ·in Bachan Singh. The learned Attorney-General (the Solicitor-General became th~ Attorney- General du!ing the heari_ng of these petitions), also argued that the decisions 'of this Court have almost uniformly taken the view that the burden to displace tlie presumptio1 of constitutionality lies on . the person who challenges the statute as unconstitutional.

Most of the important decisions which have a ·bearing on the . question of burden of proof have been noticed in the majority and minority judgments in Bachan Singh. Sarkaria, J., speaking for the majority, has.summed up the position thus:

"With regard to onus, no hard and fast rule of universal application in all situations, can be deduced from the decided cases. In some decisions such as H (I) [1971) 2 S.C.R. 711.

• 1& SIJl>REME COURT REPORTS (198 4] 1 S.C.R.

Saghir Ahmed v. State of Uttar Pradesh(') and Khyerbari A Ted Co. v. State of Assam & Ors.(') 'it· was laid down by this Court that if the writ petitioner suceeds in showing that the impugned Jaw ex facie abridges or transgresses the rights coming under any of the sub·ciause of clause (!) of Article 19, the dn~s shifts B on the respondent' State to show that the legislation. comes within the permissible limits imposed (by any of the clauses (2) to (6) as may pe applicable to the case, and, a_lso .to place material before the court in suppoi't of that .contention. If .the State does nothing in that respect,_it is not for the petitioner to ·prove negatively · c that it is not covered by any of the permissive clauses. ·

"A contrary trend, however, is discernible in the recent decisions of this Court, which_ start with the initial presumption in favour of the -constitutionality of D the statute and throw the burden of rebutting that pre- s.umption on the party who challenges its constitut\onality on the ground of Art 19.'.'

As an instance.of the contrary trend, Sarkaria, J., has cited the ,-1,

E judgment of Krishna Iyen J., in B. Banerji v ._ Anita Pan('), which reiterates the ratio in Ram Kris/ma. Dalmiil(') to the following effect : ' - ... _

" ... : .. there is always a presumption in favour of the • ·corisititutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles"; and

" ...... that it must be presumed that the legislature 'understands and correctly appreciates the need of its own G people, that its laws are directed to problems made mani- fest by experience and that its discriminations are based on adequate grounds." "

H (I) (!955] 1 S.C .R. 707. (2) [l964] 5 S.C.R. 975. (3) r1<i1s1 2 s.c.R. 774. (4) (1959) s.c.R: 279.

DEENA v. UNION (Chandrachud, C.J.) 19

Referring to the judgment of this Court in R.M.D. Chamal'baug· wala(') and to the first proposition [in Chapter III of Seervai's Con~titutional Law (Page 54, 2nd Edition; page 118, 3rd Edition) Krishna Iyer, J. obser'vsed: · ' .I ''We have to' remember the comity of the constitu- H tional 'instrumentalities and· raise. the presumption tli~t B

' • the legislature understands and appreciates the needs of the people and is largely aware of the frontiers of and limitations upon its power. Some Courts have gone -to ~ the extent .of holding that there is a presumption in favour of constitutionality, a,nd a law will not be declar- ed unconstitutional unless the case is so clear as to be c __,,) · free from doubt; and to doubt the constitutionality of a law is to resolve it in favour of its validity."

Sarkaria, J., has finally' referred tb the Seven-Judge Bench decision D .... of this Court in Pathumma v. Stale of Kera/a('); in while Fazal Ali, J.; speaking for himself, Beg, C.J., Krishna Iyer and Jaswant Singh• JJ\ declared the law in the following terms :

"It is obvious that the Legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weaker sections of the soCiety and for the improve- ment of the lot of poor people;; The Court will, there- fore, interfere in this process only when the statute is clearly violat_ive of the right· conferred ·on the citizen under ParfJII of the ,Constitution or when the Act is beyond the legislative competence of the legislature or such other grounds. It is for this !eason that· the Co.urts have recugnised that there is always a .:presumption in a favour of the constitutionality of statute and the onus· G to prove its invalidity lies on '.the party which assails the same: In the case of Mohd. Hanif Quareshi v. The State _of Bihar('), while adverting to this aspect Das, C 1., H (!) [1957] S.C.R. 874. (2) [1978] 2 S.C.R. 547. (3) [1959] S.C.R. 629.

20 SUPREME COURT REPORTS [1984] ls.c.R.

as he then was, speaking for · the Court observed as follows;

. ' "The pronouncements of this Court further + establish, amongst other things, that there is always a presumption in favour of the constitutionality of B an enactment and that the burden is upon him, who attacks it, to show· that there has been a clear 'violation of the constitutional principles. The Courts, it is ac.cepted, must ·.presume that the Legislature understands and correctly appreciat~s the needs of its own people, that its laws are (lirected c to problems made manifest by experience and that · its discriminations are based on adequate grounds."

As we have said at the outset; these decisions have been discussed , in the majority ,and minority'jundgments in Bachan Singh. D The . decision of a Bench.· of seven' Judges on which Shri Jethlilalani has placed strong reliance is the one reported in Mildhu · Limaye. The question· which arose ·for consideration in. that case was whether the provisions of section 144 and Chapter VIII of the· Code of Criminal Procedure, could be said to be in the interests of E public order in so far as the right of freedom of speech and expression, the right of assembly, and the right to form associations · and unions are concerned and in the interests of the gene~al public in so.far as they curtailed the freedom of movement throughout the territory of. India. The petitioners and the intcrveners therein • invoked the American doctrine of preferred-position for the funda- mental rights, particularly the right to freedom of speech and expression. Hidayatullah, C.J., who spoke for six learned Judges (Bhargava, J. di,ssenting on another point) 'reviewed the preferred• position doctrine and co11cluded that it did not any longer have the support of the Supreme Court of the United States and therefore. G in America, ..,unreasonableness of the law has to he established". The learned Chief Justice proceeded to say :

·'In this Court the preferred-position doctrine has never found ground although vague expressions such as 'the most cherished rights', 'the inviolable freedoms', sometimes occur. But this is not to say that any· one Fundamental Right is superior to the ot.her or that

2i DBBNA . v.. UNION (Chandrachud, C.J.) '

I Article I 9 contains a hierarchy. Pre-constitution laws ' ·are not to be regarded as WJconstitutional. We do not start with the presumption that, being ·a pre-constitution law, the burden is upon the State to establish its validity. ,All existing laws are continued till this Court declares them to be in conflict with a fundamental right and, therefore, void. The bu.rden must be plac~~ on those who contend that a particular la\v has become void after the coming·into force of the Constitution by reason of Article 13(1) read with any of the guaranteed freedoms." ' . These decisions on the question of burden of proof must be divided into two categories : those. which deal wi.th the violation of the equality clause in Article 14 of the Constitution and those others with deal with the violation o~ the guarantees contained' in Article .

19. The leading decision on the former category of cases is Ram Krishna Dalmia .jn which· Das, C.J ., formulated six principles as emerging out of an analysis of the cases under Article 14. The D passage at page 297 of the Report in which these principles are set out has become a classic and a part of it li'as already appeared. in this judgment as a quotation extracted by Krishna Iyer; J., in B. Bqnerji v Anita Pan. It may bear repetition to say that. accord- ing to the learned Chief Justice, ''there is ~!ways a presumption in £ favour of the constitutionaiity of an· encatment and the burden· is upon him who attacks it to show that there bas been a clear trans- gression of the constitutional principles" 'and that, ''it must. be presumed that the legislature understands and correctly appreciates the noed of its own people, that. its laws are direrted to problem~ made manifest by experience and that its discriminations ·are based F on adequate grounds." The concludil!g words of the second of these two principles show that ,the said principle is limited in its application to cases arising under Article 14. . The question of discrimination arises under Article 14 and not under Article J9 of ·the Constitution. Any case, even a locus c!assicus, ' is an authority ,G , for what it decides. It is. permissible to extend the ratio of a decisLon to cases involving identical situations, factual and legal, but care must be taken to see that this is not done_ mechanically, that is, without a close examination of the rationale of the decision ' .. which is cited as a precedent. Human mind, trained even in the H strict discipline of law, is not averse 'to taking the easy course of relying on decisions which have, become famous and applying their ratio to suposedly ideatical situations. In Ram Krishna Dalmia, · tl\e

SUPREME COURT REPORTS [1984} \ s.c.il. Court was dealing with a challenge to section 3 of the Commissions \ A of Inqufry A.ct, J 952 and the notification issued by the Cent~al ) Government under that section appointing a Commission of Inquiry to inquire into and report on the,affairs of' certain companies. The , . Act was chailenged on the ground that it conferred an arbitrary power on the Government to issue notifications appointing Com-. . missions of Inquiry, while the notification was challenged on' the B groun'd that the petitioners and their companies were arbitrarily singled out for the purpose of hostile and, discriminatory treatment . and subjected to a harassing and oppressive inquiry. ' The principles '

enunciated by the learned Chief Justice on behalf of the Court have .r to be understood in the context of'these facts, the context being that c the case before the Court involved considerations limited and ( germane to the application of Articte 14. Apart from certain other questions which are noi relevant for our purpose, the entire dis- cusion of the facts and. la'w in that judgment revolves round the provisions of the Article. Indeed, Article 14 is the king-pin of the decision in Ram Krishna Da/mia. If is wrong to treat the principles enunciated by the learned Cb ief Justice as of universal application and, in that. process, to apply them to i case~ arising 'under other articles of the Constitution, particularly Articles/19 and 21. The principle which undedies Article 14 is that equals must be treated equally, that is to say, that "laws must operate equ~lly on all persons under like. circumstances(l)". Article 14, though apparently absolute in its terms, permits the State to pass a law which makes a classification,' so long as the clas~ification is based on intelligible differentia having a real nexus with the object which is sought to be achieved by the law. In the generality of c~ses under Article 14, the challenge is based on the tillegation that the impunged provision is ·discriminatiory since ·it singles out tl)e petitioner fot hostile treatment, from amongst persons who, being ,situated •.' similarly. belong to the same class as the petitioner. . It is plain that in,matiers of this nature, the petitioner has to pi'ead and prove ,_ that there are others .who are situated similarly as him and that he G is singled out and subjected to unfavourable treatment. ,' As observed .by Shah J. in Western U.P. Electric Power and Supply Co.· Ltd. v. State of U.P.(') :

"Article 14 of the Constitution ensures equality B among equals : its aim is to, protect' persons similarly

(1) Seervai•s Constitutional Lnw of India, Third Edition, p. 296. (2) [1969] 3 S.C.R. 865, 870, .

bEENAi~· UNION (Chandrachud, C.J.) 23 ' placed against discriminatory treatment. It dpes not however operate· against rational classification. A person A· / setting. up a grievance of denial of equal treatment by law must establish that between persons similarly circum- stanced, some were treated to their prejudice and the differential trearment had no reasonable relation to the ·object sought to be a~hieved by the la)V." B ' Whether there~re other persons ~ho are situated . similarly as the petitioner is a question of fact. 'And whether the petitioner is subjected to hostile discrimination is also a question of fact. That is why the burden to establish the existence of these facts rests· on the petitioner. To cast the burden of pr~of in such cases on the c State iS'really to ask it to prove the negative that no other persons · are situated similarly as the petitioner and that, the treatment meted ' out to the petitioner is not hostile.

D Thus, there is a fundamental distinction between cases ansmg under Article 14 and those which arise under Articles 19 and 21 of the Constitution. In a challenge based on the violation of Articles 19 and 21~ the petitioner has und.oubtedly to plead that, for example, his right to free speech and expression is violated or that he is deprived of his right to life and personal liberty. But once he shows that, which really is not a part of the "burden of proof", it is for. the State to justify the impugned law or action by proving that, for example, the deprivation of the petitioner's right to free speech and expression is saved.by clause (2) of Article 19 since it is in the nature, • ofa reasonable restriction on that right in the interests of matters F mentioned in clause (2), or that, the petitioner has been deprived Of his life or personal liberty according to a just, fair and reasonable procedure established by law. In cases, arising unqer Atticle 19, • the burden is .never on the petitioner to prove 'that the restriction is not reasonable or that :·the restrictfon is not in the interests . of matters mentioned in clause (2). Likewise, in ~asse arising·under G Article 21, the burden is never on the petitioner to prove· that. the procedure ~prescribed by law which deprives him of his life or personal liberty is unjust, unfair or unreasonable. That is why the • ratio of cases which fall under the category of the decision in Ram Krishna Dalmia must be restricted to those arising under H Article 14 ·.and cannot be extended to cases arising under Article 19 or Article 21 of the Constitution. ·

24 SUPREME COURT REPORTS · (1984) 1 S.C.R.

· Saghir Ahmed v. The State of U.P. is a typical instance of a A case arising under Article 19 of the Constitution. The u:P. Road Transport Act, 1951 which was passed prior to the Frist A.menrnent Amendment' to the Constitution which introduced clause (6) in Article 19; was challenged in that case on the ground that it conflicted with the fundamental right of the petitioner guaranteed under Article 8 19 (I) (g) of the Constitution. Dealing with the question of burden . · ofproofMukherjea, J., who spoke for the Constitution Bench, stated the position thus :

"With regard to the second point. also we do not think that the learned ·Judges have approached the • c question from the proper stand · point. . There is undoubtedly a presumption in favour of the constitutiona- lity of a ·legislation. But when the enactment on the face or"it is found to violate a fundamental right guaran- teed under Article 19 (1) (g) of the Constitution, it must be held to be invalid unless those who support the legislation can bring it withill the purview of the exception laid down in clause. (6) of the article. If the respondents ' do not place any .material before the Court to establish that the legislation comes within the permissible limits of clause (6)., it is surely not for the appellants to prove negatively that the legislation was not . reasonable and , was not conducive to the welfare of the community." I (Page 726) • When the enactment on the face. of it is in violation of a F fundamental right guaranteed by Article 19, the petitioner is abso- lved even of that modicum of. an obligation to show that a right guaranteed to him by Article 19 is violated. When th~ face of the . law is not so clear, the petitioner. does have .to discharge the obligation of proving the fact of deprivation. But, that only and nothing more. G A similar question arose in Khyerbari Tea Co. Ltd. v. The State 'of Assam, where the Assam Taxation (on Goods carried by ·road or on Inland Waterways) Act, 19.61 was challenged on the .. ground that it placed unreasonable restrictions on the freedom cif H treade guranteed by Article 301 and infringed the provision of Article 19 (I) (g) of the Constitution. The Act was npheld by a Constitution Bench of this Court by a majority of 4 to. I,

DEENA v. UNION (Chandrachud, C.J.)

Gajendragadkar J., who spoke for the majority, relied on the decision in Saghir Ahmed and s~id : A

"It is true that on several occasions, this Court· has generally observed that a presumption of constitutionlity arises where a statute is impeached as being unconsti- tutional, but as has been held in the case of Saghir B Ahmed in regard to the fundamental right under Article 19 (I) (g), as soon as the invasion of the right is proved, it is for the State to prove its case that tht; impugned legislatibn falls within clause (6) of Article 19~ The position may·be dilferent wheu we are dealing with Article 14, because under that Article the initial presump- c tion of constitutionality may have a larger sway inasmuch as is may place the burden on the petitioner to show that the impugned law denied equality before the law, or equal protection of the laws.· We may in this connec-. tion refer to the observations made by this Court in the case of Hamdard Dawakhana v. Union of India\'). Another principle which has to be borne in mind in examining the constitutionality of a statute, it was obser- ved, is that it must be assumed that the legislature understands and appreciates the needs of the people and the laws it ena~ts are directed to problems which are made manifest by experience and that the elected representatives assembled in a leJ;lislature enact laws which they consider to be reasonable for tho purpose for which they are enacted. Presumption is, therefore,'in favour of • the constitutionality of an enactment. It is significant that all the decisions to which refernce is made in support of this statement of the law are decisions under Article 14 of the Cons1itution. Mr. Setalvad has fairly 'conceded that in view of the decision of this Court in the case of Saghir Ahmed, it would not be open to him to contend that even after the invasion of the. fundamental right of G a citizen is proved under Article 19 (1) (g), the' onus would not shift to the State. In our opinion, the said decision is a. clear authority for the propositi~n that once the invasion of the fundamental right under Article 19 (I) is proved, the State must justify its case under clause H

(I) [1960] 2 S.C.R. 671, 679:

~tJPRil!.IE COURT .REPoRTs [19841 l s.c.!t

(6) w~ich is in the na.ture of an exception to the main provisions i:ontained in Article 19 (!). The position with regard to the onus would be the same in dealing with the law passed under Art. 304(b). Jn fact, in .the case of such a law, the position is' some what stronger in favour . (of the citizen, because the very fact that a law is passed •under Article 304(b} means clearly that it purports to restrict the freedom of trade. That being so, we think that as soon as it is shown that the Act invades the right of freedom of trade, it .is necessary to enquire whether the State has'proved that the restrictions imposed by wa;x of taxation are reasonable and in the public interest within c the meaning of Article 304(b). This enqµiry would be of a similar character·in regard to clause(6) of Article i9". (pp 1003-4). (emR,hasis supplied). ., The observations made by Gajendragadkar J, in .regard to D the position arising under Article 304(b) are apposite to cases under article 21. Article 304(b) provides that, notwithstanding anything in article 301 or article 303, the Legislature of a State may by law "impose such rea<;onable restrictions on the freedom .of trade, commerce or intercourse with or within that ·State as may be required in the public interest". According to the learned Judge, E in the case cif a law passed under 'Article' 304(b) the position on the 'question of burden of pro~f is somewhat stronger in favour of the citizen, b.ecause the very fact that the law is passed under that Erticle means clearly that, it ,purports to restrict the freedom of trade, By analogy, the position is also somewhat stronger·in favour F of the petitioners in cases. arising under Article ii, because the \ very fact thiit, in defence, a la~ is relied upon as prescribing a pro- cedure fcir depriving a· person of his life or personal liberty mearis clearly that 'the law purports to deprive him of these rights. Therefore, as soon as it ,is shown ,that the Act invades a right guaranteed by Article 21, it is necessary to enquire whether the G State has proved that the person has . been deprived of his life or personal liberty a,ccording to procedure established by law, that is to say, by a procedure ,which is just, fair and reasonable. - ( . '' Another decision in the same category of cases is Mohd. Faruk H v. State of Madhya Pradesh('), in which the State Government

(l) [ 19701 l S.C.R. 156.

ntEN.~ "·' . UNioN (Chandr~clzud, CJ,) 21 >' ' ' - . issued a notification cancel!fog the confirmation of ,the Muncipal- bye-laws in so far'as they related to the permission to the slaughter· A . ing of bulls and builocks. Dealing with • the· chalienge . of the petitioner to the notification ,on •the ground that it· infringed ,his fundamental right under Article 19(l)(g) of tile Constitution Shah, J.,who spoke for the Constitution Bench, observed: · · \.

"When the 'validity of a law placing restriction upon the exercise of fundamental rights in Art. 19(1) is challenged, the onus of proving to the. satisfaction of the Court that the restriction is reasonable )ies upon the •:\.. :/ State. . . ; ... Imposition of restriction on the exercise o~ a c .

fundamental right m~y be in the form of control 'or pro· ' hibition, but when, the exercise .of a fundamental right is prohibited, the burden of proving that a total ban on the exercise of the right alone may ensure the maintenance of the · general public, interest lies heavily . upon the State~" (pp. 160-161) D When, in a matter arising under Ar'tic!e 21; the 'pers.on aggrieved is found to, have been totally deprived. of his personal liberty or }s : being deprived of his right to life, burden of proving that the procedure established by law for such · deprfvation is ·.just, fair and E reaso~able lies heavily upon tbe State. , · • /. I.

· This' dicussion will be incomplete without a close examination of the decisions , , of this" Court· in B. Banerjee I v.1 Anita . Pan and Patlzumma. v. State.of Kera/a, which have been.referred to ,by · Sarkaria,. J., in .Bachan' Singh as evidencing a. "contrary trend" F according to which, even iii regard to cases under Article 19, there. is an initial presumption in . favour of the constitutionality, of the ·. statute and the burden. of rebutting that ·presumption lies on the · , , -. , ' ' ) I

person who asserts that the. statute is unconstitutional. · ln 1B. ·. Banerjee, a three-Jtidge Bench of this Court had to consider the G question whether sub;secti.Jn (3A) which was introduced fo' section · . 13 of the West Bengal·Premises Tenancy Act, 1956 was· violative oC · Article 19(1)(£) of the Constitution. By the newJy introduced sub· .

, section; the transf~ree of a. property cannot file an eviction suit against his tenant for a_..period of three years' from· the date of ~;,H transfer, on the grounds mentioned in Clauses (f} and (ff) of. section 13(1) of the Act.. We have already extracted the relevant passage from the judgment of Krishna Iyer, J., who spoke for 'the ·Court in .

28. SUPREME COURT REPORTS ---· ,,_ [1984] 1 s.c.i\.

that cas/ The learned Judge said that presumpiion had to be A raised that the legislature understands and appreciates the needs· of .f the people and that some. courts had gone to the extent of holding that because of the_: presumption of constitutionality which . every ' statuto carries with it, the bw will not be decla.red unconstitutional unless the case is so clear as. to . be, free from 1• doubt. · The learned ·n Judge added, citing Seervai, that "to doubt. the constitutionality. of · a law is to r!'solve it in favour of its validity".· With great respect, the judgment in· B. Jlanerjee overlooks the binding· dec:sious in Saghir Ahmed, Klzyerbari Tea Co. and Mohd. Faruk which are directly in point. Not only are binding decisions not referred to hi the judgment but, in suoport of the view propounded by the Court, c Krishna Iyer, I., has cited the decision in Ram Krishna Dalmia which, as we have stated earlier, must be limited in its application. to cases arising under Article 14.ofthe Constitution. To apply mechanically the decisions under Article 14 to case.s arising under Article 19 is to ignore the signifi~ant distinction between the nature of th,e rights ' - conferred by the two articles and their purport and content. B. D Banerjee cannot therefore be regarded as an authority .for ·the pro• .· , .. po.sitiori contended ·for by tile learned Attorney-General. Evidently, the landlord's contention that a beneficent provision, aimed at the protection of tenants harassed by motivated transfers of propenies, was unconstitutional evoked a stern response. That is understand- able. But, in the process of highlighiing the need for. social welfare ·legislation in the area of landlord-tenant relationship, the distinction. between Article ·J.4 . and Article 19· in so far . as it bears npon the.· question of.burden of proof failed to receive any ·attention. The Bar too would seem not to have drawn. the attention of the Court· to that distinction and to the judgments which we have discussed F a little earlier. '

Pathumma is a seven-Judge Bench decision on the question whether the restrictions impos.ed by the Kerala 'Agriculturists (Debt G Relief) Act, 1970 ·violate Article ,19(1)(f) and Article 14. The appellants therein chall~ng~d section 2'0 of the 'Act- particuiarly, which -entitles· agricultural debtors to recover· propenies sold in .!xecution of decrees passed against . them, Fazal Ali, J., .who spoke · four out of the seven learned .Judges, refers at the outset of the ·. H judgment to. the "approach which a Court has to make and .the principles by which it has to be guided in such. matters". ·. After stating that the Courts must interpr_et the Constitution :

DEENA Y. UNION (Chandrachud, C.J.) 29 ( "against the social setting of the country so as to show a complete consciousness and deep awareness of the' A growing r~quirements of t~e society, the increasing needs' of the nation, the burning problems of the day and the complex issnes facing the people which' the legislature in its wisdom, through beneficial legislation, seeks to solve". n · the learned Judge observes that since that the legislature is in the best position to understand and appreciate the needs of the people, the Courts have recognised that there is "always" a presuption in f~vour of constitutionality of a statuie and the onus to prove its invalidity lies on the party which assails the same. In support . of ·~, this proposition, the learned Judge .relied upon the decision of this c Court in Mohd. HanifQuareshi v. The State of Bihar, in which Das, C.J., restated the two propositions which were enunciated in Ram Kr(shna Dalmia.

We find it difficult to read the observations made by Fazal D Ali, J. on behalf of the four learned Judges as an authority on the question of burden of proof in cases arising under. Article 19 of ihe Constitution. It is true that section 20 of the Kerala Act of 1970 was challenged on the ground that it violates Article 19 (I) (f) but it must be emphasised that it was aim challenged on the ground E

- that sub"sections (3) and (6) thereof were violative of Article 14. The observations made by the learn~d Judge and the statement of la,;. contained in his judgment would certainly apply to cases· arising under Article 14, for reasons which we have already discussed. It is reasonable to suppose that if, by the use of the, word "'always", it was intended to lay down rules as to brird.en of proof in regard to cases arising under Article 19 also, some reference would have ,been made by the learned Judge to the .Constitution Bench decisions in Saghir Ahmed, Khyerbari Tea Co. and Mohd. Faruk. The fact that· these decisions have not been referred to supports the inference that the obsei:vations made by the learned Judge at the ·outset of the judgment are of a general nature, not intended to apply to cases G arising under Article 19 of the Constitution. The Court, as we have said, was also dealing with a challenge under Article 14 and the weighty observations made by the learned Judge w0 uld apply to the arguments arising under that provision. ·H In support of the principles set out by him, Fazal Ali, J.; relied upon the decision ofa Constitution Beach of this Court in

30 SUPREME COURT REPORTS (1984] 1 s.c.a.

Mohd, llanif Quareshi. In that case, laws passed by the States of A Bihar, U.P. and· Madhya Pradesh, banning the slaughter of certain animals were challenged by the peti.tioners on the ground that those laws violated ·the fundamental rights guaranteed to them by Articles 14, 19 (I) and 25 of the Constitution. The Court, speaking through Das, C.J., first disposed of the preliminary question· raised by B Pandit Thakurdas Bhargav~ that since the impugned Acts were .·-'., passed in discharge of the obligation laid on the State by the Directive Prinbple contained .in Article 48, no grievance could be. made that those laws violated the fundamental rights conferred on 'the petitioners ·by Chapter Ill of the Constitution. The Court rejected the preliminery obection and turned to.I.he second question C' .as to whether the laws passed by the Legislatures of the three States violated the provisions of Article 25(1) of the Constitution. After rejecting that contention also, the Court took up for consideration · -the argument of the petitioners as regards "the denial of the equal protection of the law" to them. The petitioners' argument was that the impugned Acts prejudicially affected only the Muslim Kasa'is who ·kill cattle but not others who kill goats and sheep and therefore those Acts were violative of .Ariicle 14 of the Constitution. It is while dealing with this contention that the learned Chief Justice made observations which have been extracted by Baza! Ali, J. The obsen,~tions made by the learned Chief Justice ~egarding the presumption of constitutionality and the burden being upon the

- person who attacks it are specifically made in the context of Article 14 as in Ram Krishna Dalima. We are therefore of the opinion that the principles stated .by Fazal An, J. 'on the question of burden of proof ill Pathumma may apply to cases arising under Article '14 but not to those arisipg unde.r Articles 19 and 21 of the Constitution. In fact, in Laxmi Khandsari v. State of U.P.,( 1) Fazal Ali, J., sitting with Kaushal, J., said that "It is no doubt well-established" that when a citizen complains of the violation of a fundamental right conferred by Article 19; the onus is on the State to prove "by acceptable evidence, inevitable consequences or sufficient materials" that the rest~iction -is rea.sonable. \

Bhagwati, J., in ·his diesenting op1mon in Bachan. Singh has ·expres~ed the view that the observations made by 'Krishna Iyer, J., in B. Banerjee andcby Fazal Ali, J., in Pathumma cannot apply to cases' arising under Articles 19. and 21 of the Constitlltion. We respectfully agree with that view. (1) [1981) 3 S.C.R. 92.. '

DEENA v. UNION (Chandrachud, C.J.) 31

-i °The seven-Judge Bench decision in Madhu · Limaye, on which Shri Jethmalani •relies, invO!ved a challenge tol sectioq 144 and A Chapter VIII of the Code, of Criminal Procedure on the ,ground that those provisions violated clauses (a), (b), (c) and (d) of Article !9 of the· Constitution. We have already extracted the passage from ·the judgment delivered in that case by Hidayatullah, C.J., on which the learned counsel relies. ·That passage. shows that the D Court was considering the argument advanced by the petitioners that the preferred-position doctrine, which was said to be in vogue in America, was appiicable in India. 'The argument was that, according to that doctrine, any law restricting the freedom of speech \ • and expression, religion or assembly must be taken on .its face to be invalid till it was proved to be valid. Holding that the doctrine did not have the support of even the American Supreme Court any longer and that the unreasonableness of the law had to' be esta- blished; the learned Chief Justice observeJI : "We do not start with the presumption that being a pre-constitution law, the burden is · upon' the State to establish its validity,,. Therefore, according. to the learned Chief Justice, "the burden must be placed on those who contend that the particular law has become void after coming into force of the Constitution by reason of Article f3(1) read with any of the guaranteed freedoms". (emphasis supplied in both the quotations). These observations may at first blush seem to support. ~hri Jethmalani's contention but, as we have stated earlier, it is wrong to extned the ob serva'tions malle in one context to an entirely diffe· rent context. The question which was considered .in. Madhu Limaye was whether certain provisions of the Code of Criminal Procedure, . which is a pre-Constitution law, .are violative of. the Constitution. The Contention was that tqe Code of Criminal Procedure is a pre: F Constitution Law and therefore the State must ·justify the consti- tutionality of that law. Th•t argument was reje~ted, with the observa- tion that "we cannot start with the presumption that a pre- Constitution,law is unconstitutional therefore the burden lies upon the State to establish its validity". · The specific observation on the question of butden to the effect that the burden .lies on ·those who G challenge·the constitutionality of a law, is also made expressly in regard to the provisions of Article 13 (!) of the Constitution which

. ... . provides that the ia ws which were in force before the commencement of the Constitution shall, in so far as they are inconsistent with the H ·· l 1 provisions of Pact HI, be void to the·. extent of· Jmch inconsistency. Shri Jethmalani is right that Madhu Li maye was not noticed in

32 SUPREME COURT REPORTS (198411 S.C.R.

Bachan Singh; but we are unable to accept his contention that th~ / A decision is an authority for the proposition that the same rule of burden. of proof must apply to all constitutional challenges, whether under Article 14, 19 or 21 of the Constition. '

We must hark back to Bachan Singh . ,,;ith ·which -.... we began the B discussion of the question as regards the burden of proof. Sarkaria, J. observed in the majority judgment that "with regard to the onus, no hard and fast rule of utliversal application in all situ..tions could be deduced from the decided cases". We have made a modest attempt to show that cases arising under Article 14 are ~overned by c a rule as to burden of proof which is different from the rule which applies to cases arising under Articles 19 and 21 of the Constitution. In that sense, it is true to say that there is no hard and f~st rule of . universal application which can be applied alike to all situations. We have also dealt wit1' the two decisions in B. Banerjee and Pathumma which the Court had evidently in mind when it spoke of. D a·' contrary trend" which was discernible in the later decisions of the Court. After referring to the Indian· and the. American cases bearing on the subject, the majority. recorded its conclusion by saying that ''the State has discharged its burden" ·to establish that death. penality serves a~ a deterrent, by producing the necessary data. We are referring to this aspect of the decision in Bachan Singh in E

- order to show that the judgment of the majority proceeded on the basis that the burden of proving the constitutionality of section 302 · was on the State and that the State had successfully discharged that burden. Thus, Bachan Singh is an authority ·for proposition that in cases arising under Article 21 of the Constitution, if it appears . · that a person is being deprived of his life or has been deprived· of F his personal liberty, the burden ·rests on the State to establish the· constitutional validity of the imp~gned law.

That disposes of the question of burden of proof. In the light . of thi~ disdussion, we must proceed to examine the question whether · the State has discharged the burden of' proving that the provisions ·of section 354(5) of the Code of Criminal Procedure are in confor- mity with the mandate · of Article 21. Consistently with "ihe conclusion which we have 'recorded on the question of burden of H proof, we must hold that the burden does not lie on the petitioners to prove that the procedure prescribed by the aforesaid provision / for taking life is unjust, unfair or unreasonable. The impugn~d statute, on the face of it, provides for a procedure for extinguishing

DEENA v. UNION ( Chandrachud, C.J.) 33

life. Therefore, not even the initial obligation to show the fact of deprivatiqn of life or liberty rests on the petitioners. The State must establish that the procedure prescribed by section 354(5) of the Code for executing the death sentence ·is just, fair and reasonable. That burden includes the obligation to prove that ,the said procedure is not !iarsh, cruel or degrading. B Has the State discharged this heavy onus? We have already • set out the grounds on which the petitioners challeng~ the constitu- tionality of section 354(5) of the Code of Criminal Procedure which provides that "When any _person is sentenced to death, the sentence shall direct that he be hanged by the neck )ill he . is dead". Stated brietlly, the contention of the petitioners is that section 354(5) ofthe c Code is bad because :

1. It is impermissible to take human .life even under the decree of a Court since it is inhuman to take life under any circumstances ; D

2. By reason of the provision contained in Article 21, it is impermissible to cause pain or suffering of any kind whatsoever in the execution of any sentence, . r much more while executing a death sentence; E

. 4. The method of hanging prescribed by section 354 (5) for executing the death sentence is barbarous, inhuman and degrading; and

Jt is the constitutional obligation of the State to provide for humane and dignified method for execut- ing the death sentence, which does not involve torture of any kind. If the method' prescribed by section 354(5) does not meet this requirement, no death sentence can be executed since, no other method for executing that sentence is presciibed by or is permissiOle under the law.

These arguments are answered by the learned Attorney General by contending that a sentence lawfully imposed by a Court can and has to be executed; though by causing the least pain and suffering and by ~voiding toruture of degradation of any kind; that the method prescribed by sectio11 354(5) for ei<ecu~in{l tbe \}eath s~nte11c~

34 SUPREME COURT REPORTS (1984] 1 S.C.R.

is a humane and dignified method which involves the least amount of pain and. cr'!elty; that no other method . of executing the death sentence is quicker or less painful; that Amcle 21 does not postulate that no pain or suffering what sover shall be caused in the execution of a sentence lawfully imposed by a Court, including tne sentence of death; and that, since the method of llanging prescribed by section 8 154(5) does not suffer ·from any constitutional infirmity, the question of the Court substituting that method by any other method does not arise for consideration. • While supporting these arguments. of the Attorney General, Shri .Ram Jethmalani added th~t unless, on the face of it, the method c - prescribed by a law for executipg a sentence is reyolting _to the conscience, the Courts must surrender. their discretion to the legislative judgment when the. challenge to ihe. constitutionality of the law is based on considerations which the Court is not equipped to evaluate by manageable judicial standards. According to the D learned counsel, the Court's evaluation of the method of hanging prescribed by law shall have to be inevitably subjective, almost to the point of being legislative in character; which must be avoided at all costs·. The legislature has recognised means at its command for seif-education like the Law Commi.ssions, the. expression of public opinion; the_ result of scientific investigations, the sociological advance and; last but not the least, the unfettered freedom available · to the l~gislators to discuss matters of moment on the floor of the House and to keep them under constant scrutiny. ''.Hands off .the Hanging" is the sum and substance of Shri Jethmalani's argument.

New dimensions were added to these arguments by the other learned counsel. For -example, Shri Salman Khurshid advocated that instead of' putting out life fot ever by executing the death· . &entence, persons sentenced to death should be deprived of their eye sight by blinding them so that, Wand when they are •reformed, they could be given back their sight by transplantation or by whatever method medicine may "discover for restoring the eye sight. In the meanwhile, says counsel, justice shall have been done.

First, as to Shri Jethmalani's argument that we should leave to the legislative wisdom the question as to how . best the death· 0

Sentence should be executed and that we should ,not project our subjective views into. the decision of that question. ·We find it lmJ?OS.sible to accel't this ari,iument. Mat~ers of J?Olic.y are certainly

DEENA v. UNION (Chandrachud, C.J.) . 35

j for the· legislature to consider and therefore, by what mode or '; method the death sentence should be executed, is for the legislature A -to decide. As stated in Grega v. Geargia,(') in a democratic, society legislatures, not Courts, ·are· constituted to respond to the moral values of the people. But the function of the legislature ends with providing what it considers to be the best method of executing the geath sentence. Where the function of the Iegislaiure ends, the B fonction of the judiciary begins. It is for the.· Courts to decide , upon y' the constitutionality of.the method prescribed by, the legislature for implementing or executing a sentence. Whether that method conforms to the diCtates of the Constitution is a 'matter not only subject to judicial review but it constitutes a legatimate part of the judicial function. As Judges; we cannot abdicate the obligation 'C imposed upon us by the Constitution and throw our hands in despair with the consolation that after all, the chosen· representatives of the people have willed that hanging is the best method of executing 'the death' sentence. We respect the judgment of the people's representa· tives to the exent, but only to the extent, that as a matter' of policy they considcre.d that the method of hanging provided by section " 354(5) of the Code is the least objectionable method for .executing ·the. death sentence. But, what the policy judgment of the legislature leaves· outstanding for the Court's consideration is the question whether the particular method prescribed by law for executing the death sentence is in consonance with the Constitution.· This latter question is manifestly for the Courts to decide. , The decision of that • question inevitably involves a value judgment based upon a compara· tive evaluation of alternate methods for executing the death sentence but, more than any 'such comparat,ive evaluation, our plain and primary duty is to exainine whether, even if the !Dethod selected by the legislature is· the least objectionable, it is still open to the F ---.,_ objection that in involves undue torture, ·degradation and cruelty as, for example, by causillg more pain thaii is strictly necessary· or by bringing about a lingering death or because_the particular method ·is liable, frequently, to fail in its mechanism. Our task will end with pointing out why, if at all, the method at present' provided by G law is contrary to the mandate of the Constitution, even if it be less objectionable than any other commonly ac<epted method _of execut- ing the death sentence. We will not legislate by directing the sin'Ce, if at all, the provision contained in section 354(5) is unconstitutional, the death sentence imposed upon the petitioners shall be executed

(I) 49 L.Ed.2d, 859,

.36 SUPREME COURT REPORTS· (1984] 1 s.c:R.

by the method of electrocution or gas-chamber or lethal injection or shooting or gillontine and the like. Nor can we direct, as convassed by Shri Khurshid, that the petitioners be temporarily blinded. That would be legislating. To pronounce upon the constitutionality of a Jaw is not legislating, even if such pronouncement involves the conside- ration of the evolving standards of the society. 'Cruelty' and 'torture' are not static concepts. That is why, the choppi°iig off of B limbs which was not considered cruel centuries ago or, is n.ot considered cruel in some other parts of the world to-day, is impossi- ble to conceive as a punishment by applying tile contemporary .standards of the Indfa)l society. What might not have been regarded as degrading or inhuman in days by gone may be revolting to the c new sensitivities which emerge as civilization advances. The impact and influence of the awareness of .such sensitivities on the decision of the Jaw's validity is an inseparable constituent of the judicial function.

This Court is not a third Chamber of the legislature. It has ' • no such extra-territorial ambitions and it' does not .aspire to do the I '-fr ·job of 'out-riders', to use an expression Lord 'Devlin. His simply the· highest Court of law and justice in a country ~overned by a written Constitution, which, it is its primary and exclusive function to interpret. The care which we must take is that while interpreting . E the Jaws and the Constitution, we ought not to be swayed by passing. passions or by populist sentiments. We mui\t do our duty by the Constitution, unaffected by· extraneous considerations ·and guided · solely by the obligation to be fair and just, almost to a fault.

F The State seeks to discharge its burden by relying upon the Reports of Commissions which are based on results of scientific investigation into the mechanics of the· hanging process, the opinions of text-book writers, the predelictions of sociologists, the proclivities of reformers and, of course, juristic exposition of the C!>mplex issue "to hang or not to bang". To some of these we must n:>w turn. G In the year 1949 the Government. of Umted · Kingdom appointed a Commission to report upon the various facets of the

B capital punishment. The Commissio_n submitted its report in September 1953 after extensive research into the questions referred .. to it and after interviewing experts, visiting jails and examining the merits and demerits of hanging as a method for· executing the death sentence. Chapter 13 Qf the Royal C\lmmis.sion's Report deals wit!\

DEENA v. UN101-1 (Clumdrachud, C.J.) 37 the "methods of execution". In paragraph 700 of that Chapter the Commission records that it heard eviedence on the existing method of hanging from various witnesses, including Prison Comlllissioners and Prison officials, one Mr. ·A. Pierepoint, "the most experienced executioner in this· country", and under-sheriffs responsible for execution in London and Lancashire. The Commis- sion inspected execution chambers in England and Scotland and was given demonstrations of the procedure at an execution. They also received evidence about executions in the United States by means of electrocution and lethal gas. During their visit to the United States, they took the opportunity of inspecting the electric chair in two prisons. Lastly, they questioned medica\ witnesses about possil)le new methods of execution. c In paragraph 703 of the Report the Commission notes tha~ public opinion was disturbed by evidence that. the task of hanging was sometimes bungled. In 1885 a condemned murderer bad to D be reprieved after three unsuccessful attempts bad been made to hang him. There were also other untoward occurrences : Occasionally, a man might be given too short ·a drop and die slowly / of strangulation, or too long a drop and· be decapitated. A Com- mittee was therefore appointed in U.K. in 1886 to report on the best way of ensuring "that all executions may be carried out in a becom- E ing manner without risk of failure or miscarriage in any respect" ..

- This Committee made recommendations about. the length of drop, improvements in the apparatus and preliminary tests and precautions .which were designed to ensure speedy and painless death by dislo- cation of the vertebrae without decapitation. .The improved system of. hanging now in vogue came into bei.1g as a result of the recommendations of this Committee. The Home Offic.e informed the Commission that "There is.no record during the present. century of ani failure or mishap in connection With an execution, and, as , now carried out, execution by hanging can be regarded as speedy and certain"; G In paragraph 704 of the Report, the Commission· says that ·it was "on the score of h'umanity" that execution by hanging was • defended by witness after witness. The Prison Officers held the system o( hanging.to be as humane as circumstances permit, while H the Prison Medical Officers said "We cannot conceive any other method which ould he more humane, efficient of expeditious than judicial banging The Prison Chaplains called it "simple, hamane

SUPREME couin REPORTS [1984) i s.c R, and expeditions". ·The British Medical Association told the A Commission that "hanging is probably as 'peedy and certain as- any. other method could be adopted. The Royal Medico-Psychological Association, after stating that the method of execution ought to be "certain, humane,' simple, instantaneous a:nd expedit_ious", said : "On the information JlVailable to the Association, the method of B hanging fulfils these criteria more satisfactorily than any othor M far proposed or in practice''. A knowledgeable witness told the ' Commission that the method of hanging was ."certain, painless, simple; humane.and expeditious".

c - · In paragraph 705 of the Report, the Commission refers to the ititere~tingdevelopment that the method of execution whose special merii was originally thought to be that it was peculiarly degradilljl and therefore deterrent, was defended before it on the ground that it was uniquely humane. The reason for this surprising inversion . is that·as a result of the recomm'endations made by the Committee D which was appointed in 1886, "a method originally barbarous ......... .has been successfully humanised''. · '

In Paragraph 708, the Comll)ission proceeds to examine the question whether there is any' seemly .and practicable method of -1.

executi'on which is as painless as hanging or even more speedy, or

- which, even though it may have no advantage over hanging in those respects, is free from the degrading associations of that method. If capital punishment were being introduced for the first time, the Commission considered it unlikely tliat hanging would be chosen as a method for executing ,the death sentence. The Commission, F however, found that no useful propose would be served by making experiments unless the necessity was urgent or the utility .evident. And this applied with spedal force to a subject which was highly. charged emotionally and was exceptionally controversial.

G . ~ ,. In paragraph 709; the Commission refers to five methods of execution of the_ death sentence which were then in vogue in the · different parts of the world. Electrocution was in v.ogue in 23 States of U.S.A.; Guillotine in France and Belgium; Hangiug in England, Scotland, the Commonwealth countries and 10 States of • H Ai'· U.S.A.; and lethal gas in 8 States of U.S.A. Shooting was in vogue in the State of Utah in America which. allowed a choice between hanging and shooting. · Besides, shooting was used in almost every

bllBNA v. UNION .(Chandrachud, C.J.) i9 ) ,/ - country as a method of execution of persons sentenced to death fo}'. ·I · offences against the Military Code. A

Rejecting Guillotine and sho~ting as methods for executing the death sentence for the reason thal the former produces mutilation and the latter is inefficient, uncertairt and unacceptable as a standard method of civil executions, the Com-mission examined the mechanics 8 of hanging in paragraphs 711to716.ofits Report. Paragraph .714, which is relevant for our purpose, shows that· a valuable memo• randum was submitted to the Commis$ion by t)le Coroner for the Northeru District of London, at whose_ instance many post-mortem examinations following upon hanging were made by the late Sir Bernard Spilsbury, a distinguished_ man of medicine who had figured_ c as a witness in many in,portan·t trials, and other liigbly _qualified patholozists. The Coroner, Mr Bentley Purchase, bad access to the records-of such post-morkm_examinations. The memorandum showed that-the effective cause of death in 58 executions at two prisons was "fracture dislocation of cervical vertebrae with laceration or D crushing of the cord" and that any such dislocation causes immediate unconsciousness, there being no -chance of later recovery of consciousness since breathing is ho longer possible. The _beating of the heart thereafter for any time upto 20 minutes is a purely automatic function. In the words of the Corner : "I have no doubt of1the efficac-\' and immediate _and 'painless fina,lity of the present method of judicial execution".

After examining the mechanics of the methods of electrocution and lethal gas in paragraphs 717-to 722, the Commission considers the question as to whether electrocution or lethal gas was preferable F to hanging on ~onsiderations of"humanity, cert"ainty and decency",

The Commission observes in paragraph 7l4 that the requirements · of humanity arnessentially two : (!) that the preJiminaries to the acts of execution should be as quick and as simple as possible, and free from anything that unnecessarily sharpens the poignancy of the pri- G soner's apprehension, and (2) that the act of execution should produce immediate unconsciourness passing"quickly in into death. Paragraph 725 contains a comparative table showing the len_gth of time taken by· the preliminaries in electrocution, lethal gas and hanging. On the basis of that comparative analysis, the Commission records its conclusion H in paragraph 726 that, there was 'no room for doubt' that in the matter of time taken by the preliminaries, hanging was superior to