CONSTITUTIONAL LAW 1 (BBL 562)

CIA 1

BEFORE THE SUPREME COURT OF INDIA

AIR 1980 SC 898, 1980

Date of Judgment : 16th August, 1982

IN THE MATTER OF

BACHAN SINGH Petitioner

v.

STATE OF PUNJAB Respondent

SUBMITTED TO : VARUN SRIVASTAVA

SUGMITTED BY : AYUSHI AMAN (19213207)

1
Abstract: This case analysis is an attempt to analyze the landmark judgment given by 5
judges bench of the Honorable Supreme Court of India. In this case the burning issue with
regard to the constitutionality of the Death Penalty as a form of punishment was raised in the
Apex Court limiting the Death penalty by setting the doctrine of “rarest of the rare”, this
principle laid down in the case and its relevance in the present society.

INTRODUCTION

The issue of death penalty/ capital punishment is one of the most discussed areas of criminal
jurisprudence. While the majority of the countries in the world have abolished the death
penalty, it is still valid in India. The Indian legislature and the judiciary still consider that
capital punishment is necessary for certain special circumstances. In India, the death sentence
can be awarded for murder, rape, terrorism, offences under defence legislations and drug
offences under special circumstances.

The discussion revolving the relevance of the death penalty has been going on for a long time
with one side on the viewpoint that it is the best deterrence for the prevention of such crimes
while the other side points out that the death penalty has failed in creating a deterrent effect.

The 35th Report of the Law Commission, 1967 after considering the various arguments for
and against the awarding of the death sentence, concluded:

“Having regard to the variety of the social upbringing of its inhabitants, to the disparity in
the level of morality and education in the country, to the vastness of its area, to the diversity
of its population and to the paramount need for maintaining law and order in the country at
the present juncture, India cannot risk the experiment of the abolition of capital
punishment.” 

There have been several challenges on the constitutionality of death penalty and the decision
in Bachan Singh v State of Punjab [2] is very crucial in this regard as it upheld the
constitutionality of death penalty under Section 302 of IPC. It was, in this case, the Hon’ble
SC evolved the test of “rarest of rare cases” which must be satisfied in order to grant a death
penalty. This decision has been a watershed moment for the capital punishment law in India
as it laid down the law and emphasised the judicial role in relation to the death penalty.

2
This case was a turning point in the history of the death penalty in India because while it
retained capital punishment, it significantly diluted the scope of its imposition. This landmark
decision was given on 09-05-1980 with a 4:1 majority upholding the constitutional validity of
death penalty in India while Justice P.N Bhagwati dissented the same.

This Case is a landmark judgment given by 5 judges Bench of the Hon’ble Supreme Court. In
this case Supreme Court announced important limitations on the death penalty by setting the
“rarest of the rare” doctrine. The Supreme Court said,” A real and abiding concern for the
dignity of human life postulates resistance to taking a life through law’s instrumentality. That
ought not to be done except in rarest or the rare cases where the alternative opinion is
unquestionably foreclosed”.

SUMMARY OF FACTS

 The Appellant Bachan Singh was convicted for his wife’s murder and was sentenced for life
imprisonment. After undergoing the term of imprisonment ( i.e after his release) he was
living with his cousin Hukam Singh and his family by this  hukam singh’s wife and his son
objected the appellant’s living in their house. A few days prior to this occurrence in the
midnight Vidya Bai was awakened by alarm and saw the appellant inflicting axe blow on her
sister’s ( Beeran Bai) face. On the attempt to stop the appellant Vidya Bai got blown on her
face and ear with axe leading injuries her face and ear making her unconscious. Diwan singh
who was sleeping at a distance woke up by the shriek and raised an alarm to wake Gulab
singh sleeping at a distance from there. On seeing an appellant with axe on Desa bai’s face
they both hurried to stop him. Noticing them moving towards him the appellant left the axe
and ran away. Diwan Singh and Gulab Singh gave a chase to him but couldn’t apprehend
him. Later Bachan Singh was tried and convicted and sentenced to death under Section 302,
Indian Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai by the sessions
judge. The High Court confirmed his death sentence given by the sessions judge and
dismissed his appeal. Bachan Singh then appealed to the Supreme Court by Special Leave,
the Question raised in the appeal was, whether the facts of his case were “special reasons” for
awarding him the death sentence as required in section 354(3) of CrPC, 1973.

ISSUES RAISED

3
1. Whether the death penalty provided for murder in Section 302 of the Indian Penal Code is
unconstitutional?

2. If the answer to the above question is negative, whether the sentencing procedure
mentioned in Section, 354(3) of the Code of Criminal Procedure, 1973 (Act 2 of 1974) is
unconstitutional on the ground that it invests the court with unguided and untrammelled
discretion?

STATUTES AND PROVISIONS DISCUSSED

 Section 302 of the Indian Penal Code, 1860

 Section 354 (3) of the Code of Criminal Procedure, 1973
 Articles 19, 21 of the Constitution of India, 1950
 35th Law Commission Report.

ARGUMENTS ADVANCED

ARUGMENT ON BEHALF OF PETITIONER

The first argument advanced by the counsel for the appellant was that
imposition of the death penalty under Section 302 of IPC was violative of
Article 19(1) of the Constitution. It was contended that right to live is
basic to the enjoyment of all the six freedoms guaranteed in Clauses (a)
to (e) and (g) of Article 19(1) of the Constitution and death penalty puts
an end to all these freedoms.

It was argued that since death penalty did not have any social purpose
and its value as a deterrent was unclear and as it was against the dignity
of an individual guaranteed under the constitution, the imposition of the
death penalty would amount to unreasonable restriction under Article 19.
It was also argued by the appellants that the death penalty was violative
of Article 21 of the Constitution as it amounted to unreasonable, cruel
and unusual punishment which violated the dignity of the individual.

4
 ARGUMENT ON BEHALF OF DEFENDANT

The counsels on behalf of the respondents contended the principle of sic

uteri tou ut alienum non laedas which means that a person may use the
property in such a way that it does not injure someone else’s rights. They
presented before the Court that the six rights guaranteed under Article
19(1) are not absolute rights, they are subjected to inherent restraints,
putting obligations on the member of civil society to use his/her rights in

such a manner that it does not infringe or injure similar rights of others.

JUDGMENT

It was finally held that the impugned provision of section 302 penal code
violates neither the letter nor the ethos of Art. 19. As to the matter of
2nd point Art.21 clearly brings out the implication that the founding
fathers recognized the rights of the state to deprive a person of his life or
personal liberty in accordance with fair, just and reasonable procedure
established by valid law. There are several other indications, also, in the
Constitution which show that the Constitution makers were fully
cognizant of the existence of death penalty for murder and certain other
offences in the IPC.

The constitutional validity of Section 354(3) was assailed on the ground

that -A sentence of death is the extreme penalty of law and it is but fair
that when a Court awards that sentence in a case where the alternative
sentence of imprisonment for life is also available, it should give special
reasons in support of the sentence. Accordingly, Sub-section (3) of
Section 354 of the current Code provides: When the conviction is for an
offence punishable with death or, in the alternative with imprisonment for
life or imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded and, in the case of sentence of death,
the special reasons for such sentence. Now comes them minority view
(consisting of P.N.Bhagwati) who says that section 302 of IPC in so far

5
as it provides for imposition of death penalty as an alternative to life
sentence is Ultra Virus and Void as being violative of Articles 14 and 21
of the constitution. Since it does not provide any legislative guidelines as
to when life should be permitted be extinguished by imposition of death
sentence. He then further said that I would strike down section 302 IPC
as unconstitutional and void´.

Court with the majority of 4:1 rejected the challenge to the

constitutionality of Section 302 of the Penal Code in so far as it provides
for the death sentence as also the challenge to the constitutionality of
Section 354(3) of the CrPC, 1973. The Writ Petitions and other
connected matters may now be placed for hearing, in the usual course,
before the Division Bench for consideration of the individual cases on
merits, in the light of the principles enunciated in the majority judgment

ANALYSIS

ANALYSIS ON 1ST ISSUE

The SC rejected the argument advanced by the appellant that imposition of the
death penalty was violative of Article 19 of the Constitution. The court applied
the test of directness as well as the pith and substance test by relying on
numerous precedents to come to the conclusion that imposition of the death
penalty was not violative of Article 19. The court held that in pith and
substance, penal laws do not deal with the subject matter of rights enshrined in
Article 19(1). Moreover, it was held that the deprivation of freedom consequent
upon order of conviction and sentence is not a direct and inevitable consequence
of the penal law but is merely incidental to the order of conviction and sentence.

The court relied upon the 35th report of the Law Commission as well as the
decision in Jagmohan Singh v State of UP [3] and in several subsequent cases,
in which it has been recognised that death penalty serves as a deterrent. The
court looked at the arguments of both the abolitionists and people in the favour
of retention and held that it was not possible to categorically explain which view
is correct. But the fact that persons of reason, learning and light are rationally
and deeply divided in their opinion on this issue, is a ground among others, for

6
rejecting the petitioner’s argument that retention of the death penalty in the
impugned provision, is totally devoid of reason and purpose.

It was further observed if the framers of the Indian Constitution were fully
aware of the existence of death penalty as punishment for murder, under the
Indian Penal Code, if the 35th Report and subsequent Reports of the Law
Commission suggest retention of the death penalty, then it is not possible to
hold that the provision of the death penalty as an alternative punishment for
murder, in Section 302, Penal Code is unreasonable and not in the public
interest. Hence, S. 303 does not violate Art 32 either in letter or in essence.

On the question of whether Section 302 violates Article 21, the court answered
this in negative. It is stipulated in Article 21 no person shall be deprived of his
life or personal liberty except according to the fair, just and reasonable
procedure established by valid law. The court observed that it is evident from
the wording of Art 21 that the framers of the constitution recognised the
existence of the death penalty as a valid punishment.

It is evident from the constitutional postulates that imposition of the death

penalty in no way, either per se or because of its execution by hanging,
constitutes an unreasonable, cruel or unusual punishment and hence does not
defile “the dignity of the individual” within the contemplation of the Preamble
to the Constitution.

As a result, the court held that the imposition of the death penalty for the
offence of murder under Section 302 is not unconstitutional as it is not violative
of Art 19 nor Art 21 of the Constitution.

ANALYSIS ON 2ND ISSUE

Sub-section (3) of Section 354 of CrPC reads as:

“When the conviction is for an offence punishable with death or, in the
alternative with imprisonment for life or imprisonment for a term of
years, the judgment shall state the reasons for the sentence awarded, and,
in the case of sentence of death, the special reasons for such sentence.”

This marks a significant shift in the legislative policy from the earlier
Code [4] which in force immediately before April 1, 1974, according to

7
which both the alternative sentences of death or imprisonment for life
provided for murder and for certain other capital offences under the Penal
Code, were normal sentences. As per S. 354(3), life imprisonment is the
rule and death penalty, the exception.

The expression “special reasons” in the context of this provision,

obviously means “exceptional reasons” founded on the exceptionally
grave circumstances of the particular case relating to the crime as well as
the criminal. The death penalty is an extreme penalty must be imposed
only in extreme circumstances.

It was also observed that the present legislative policy discernible from
Section 235(2) read with Section 354(3) is that in fixing the degree of
punishment or making the choice of sentence for various offences,
including one under Section 302, Penal Code, the Court should not
confine its consideration principally or merely to the circumstances
connected with the particular crime, but also give due consideration to the
circumstances of the criminal.

The court relied upon the Jagmohan case, in which it was held that if the
court finds the offence is of an exceptionally depraved and heinous
character and constitutes, on account of its design and the manner of its
execution, a source of grave danger to the society at large, then the court
may impose the death sentence. The court held that it was not possible to
say that the procedure for imposing capital punishment under the CrPC
was unfair, unreasonable and unjust.

Nor can it be said that this sentencing discretion, with which the courts
are invested, amounts to a delegation of its power of legislation by the
Parliament. The court reaffirmed its decision in the Jagmohan case and
held that Section 354(3) was not violative of Articles 14, 19 and 21.

The court held that it was not possible to have an exhaustive list of
aggravating and mitigating circumstances while sentencing an offender
and that the discretion of the court must be exercised judiciously after
balancing all the aggravating and mitigating circumstances. The relative

8
weight to be given to the aggravating and mitigating factors depends on
the facts and circumstances of the particular case

Moreover, it was held that the scope and concept of mitigating factors in
the area of the death penalty must receive a liberal and expansive
construction by the courts in accord with the sentencing policy writ large
in Section 354(3). It was observed that “Judges are never bloodthirsty”. It
was further held that a real and abiding concern for the dignity of human
life postulates resistance to taking a life through the law’s
instrumentality. That ought not to be done save in the rarest of rare
cases when the alternative option is unquestionably foreclosed.

DISSENTING JUDGMENT

Bhagwati, J dissented with the majority judgement and held that Section
302 of the Indian Penal Code in so far as it provides for the imposition of
the death penalty as an alternative to life sentence is ultra vires and void
as being violative of Articles 14 and 21 of the Constitution since it does
not provide any legislative guidelines as to when life should be permitted
to be extinguished by the imposition of the death sentence.

PARALLEL DEVELOPMENTS

1. The death penalty is to be given the gravest cases of extreme

culpability.

2. Consideration of the circumstances in which the crime was

committed should also be given while giving the death penalty to the
accused.

3. The punishment now given is of life imprisonment and exception is

death penalty unlike earlier. The death penalty is given only when life
imprisonment seems to be the inadequate punishment for the crime
committed.

9
4. Mitigating factors should be given more weightage than aggravating
factors and a full balance sheet should also be drawn for the same.

CONCLUSION

This decision of the SC is hailed as one of the most landmark judgements

on the issue of the death penalty. This decision laid emphasis on the
relevance of both mitigating and aggravating circumstances and held that
the mitigating circumstances must be liberally construed. The court
discussed various precedents such as Jagmohan Singh v State of UP,
and Rajendra Prasad v State of UP. The court laid down the doctrine of
“rarest of rare” cases which is followed till date. However, the court
failed to elaborate on the criteria for identifying “rarest of rare” cases.

10