DEVENDER PAL SINGH BHULLAR v. STATE OF N.C.T. OF DELHI

H.P. Raval, ASG, Sidhartha S. Dave, Ranjana Naryan, T.A Khan S. Wasim A. Qadri, P.K. Dey, Harsh Parekh, Gargi c Khanna, Shailender Saini, Shriniwas Khalap, Anirudh Sharma, B.K. Prasad, Anil Katiyar, Shreekant N. Terdal for the Respondent. The Judgment of the Court was delivered by D G. S. SINGHVI, J. 1. Human life is perhaps the most precious gift of the nature, which many describe as the Almighty. This is the reason why it is argued that if you cannot give life, · you do not have the right to take it Many believe that capjtal punishment should not be imposed irrespective of the nature E and magnitude of the crime. Others think that death penalty operates as a strong deterrent against heinous crimes and there is nothing wrong in legislative prescription of the same as one of the punishments. The debate on this issue became more intense in the second part of the 20th century and those F belonging to the first school of thought succeeded in convincing the governments of about 140 countries to abolish death penalty.

2. In India, death was prescribed as one of the punishments in the Indian Penal Code, 1860 (IPC) and the same was retained after independence. However, keeping in G view the old adage that man should be merciful to all living creatures, the framers of the Constitution enacted Articles 72 and 161 under which the President or the Governor, as the case may be, can grant pardons, reprieves, respites or remission 688 SUPREME COURT REPORTS [2013] 6 S.C.R A of punishment or suspend, remit or commute the sentence of any person convicted of any offence and as will be seen hereinafter, the President has exercised power under Article 72 in large number of cases for commutation of death sentence into life imprisonment except when the accused was found guilty B of committing gruesome and/or socially abhorrent crime.

3. The campaign for the abolition of capital punishment led to the introduction of a Bill in the Lok Sabha in 1956 but the same was rejected on 23.11.1956. After two years, a similar resolution was introduced in the Rajya Sabha but, after C considerable debate, the same was withdrawn. Another attempt was made in this regard in 1961 but the resolution moved in the Rajya Sabha was rejected in 1962. Notwithstanding these reversals, the votaries of 'no capital punishment' persisted with their demand. The Law Commission D of India examined the issue from various angles and recommended that death penalty should be retained in the statute book. This is evinced from the 35th Report of the Law Commission, the relevant portions of which are extracted below: E F G H "The issue of abolition or retention has to be decided on a balancing of the various arguments for and against retention. No single argument for abolition or retention can decide the issue. In arriving at any conclusion on the subject, the need for protecting society in general and individual human beings must be borne in mind. It is difficult to rule out the validity of, or the strength behind, many of the arguments for abolition nor does, the commission treat lightly the argument based on the irrevocability of the sentence of death, the need for a modern approach, the severity of capital punishment and the strong feeling shown by certain sections of public opinion in stressing deeper questions of human values. Having regard, however, to the conditions in India, to the ' DEVENDER PAL SINGH BHULLAR v. STATE OF N.C.T. OF DELHI [GS. SINGHVI, J.) 689 variety of the social upbringing of its inhabitants, to the A disparity in the level of morality and education in the country, to the vastness of its area, to 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 abolition of capital B punishment."

4. The constitutionality of capital punishment was examined by the Constitution Bench in Jagmohan Singh v. ·State of U.P. (1973) 1 sec 20. The facts of that case were C that appellant Jagmohan Singh was convicted for the murder of Chhote Singh and was sentenced to death by the trial Court. The High Court confirmed the death sentence. Before this Court, the counsel for the appellant relied upon the judgment of the U.S. Supreme Court in Furman v. State of Georgia, 408 US 238 and argued that death penalty was per se unconstitutional. D This Court distinguished that judgment by observing that even though the sentence of death was set aside by a majority of 5:4, only two of the five Judges, namely, Mr. Justice Brennan and Mr. Justice Marshall were of the opinion that in view of Eighth Amendment to the American Constitution, which forbade E 'cruel and unusual punishments', the imposition of death penalty was unwarranted and the opinion of the third Judge, namely, Mr. Justice Douglas could not be read as advocating total abolition of capital punishment. The Constitution Bench then observed: F ·so far as we are concerned in this country, we do not have, in our constitution any provision like the Eighth Amendment nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges G of the Supreme Court of America are accustomed to apply "the due process· clause. Indeed what is cruel and unusual may, in conceivable circumstances, be regarded as unreasonable. But when we are dealing with punishments for crimes as prescribed by law we are confronted with a H 690 SUPREME COURT REPORTS [2013] 6 S.C.R. A B c D E F G H serious problem. Not a few are found to hold that life imprisonment, especially, as it is understood in USA is cruel. On the other hand, capital punishment cannot be described as unusual because that kind of punishment has been with us from ancient times right up to the present day though the number of offences for which it can be imposed has continuously dwindled. The framers of our Constitution were well aware of the existence of capital punishment as a permissible punishment under the law. For example. Article 72(1 )(c) provides that the President shall have power to grant pardons, reprieves, respites or remissions of punishment or to suspend. remit or commute the sentence of any person convicted of any offence "in all cases where the sentence is a sentence of death". Article 72(3) further provides that "nothing in sub-clause (c) of clause (1) shall affect the power to suspend. remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force". The obvious reference is to Sections 401 and 402 of the Criminal Procedure Code. Then again Entries 1 and 2 in List Ill of the Seventh Schedule refer to Criminal Law and Criminal Procedure. In Entry No. 1 the entry Criminal Law is extended by specifically including therein "all matters included in the Indian Penal Code at the commencement of this Constitution". All matters not only referred to offences but also punishments-one of which is the death sentence. Article 134 gives a right of appeal to the Supreme Court where the High Court reverses an order of acauittal and sentences a person to death. All these provisions clearly go to show that the Constitution-makers had recognised the death sentence as a permissible punishment and had made constitutional provisions for appeal. reprieve and the like. But more important than these provisions in the Constitution is Article 21 which provides that no person shall be deprived of his life except according to procedure established by law. The implication is very clear. Deprivation of life is ' DEVENDER PAL SINGH BHULLAR v. STATE OF N.C.T. OF DELHI [G.S. SINGHVI, J.] 691 constitutionally permissible if that is done according to A procedure established by law. In the face of these indications of constitutional postulates it will be very difficult to hold that capital sentence was regarded per se unreasonable or not in the public interest." (emphasis supplied) B

5. The constitutional validity of Section 302 IPC, which prescribes death as one of the punishments, was considered by the Constitution Bench in Bachan Singh v. State of Punjab (1980) 2 SCC 684. By a majority of 4:1, the Constitution Bench C declared that Section 302 IPC was constitutionally valid.' Speaking·for the majority, Sarkaria, J. referred to the judgments ' of several countries, including India, opinions of Jurists and recorded his conclusion in the following words: D "To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302 of E the Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very 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 rejecting the petitioners argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the G Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing F H 692 SUPREME COURT REPORTS [2013) 6 S.C.R. A B c D E F G H crime conditions in India, contemporary public opinion channelized through the people's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware - as we shall presently show they were - 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 suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235(2) and 354(3) in that Code providing for pre- sentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it w~en in 1972-1973 it took up revision of the Code of 1898 and " replaced it by the Code of Criminal Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302 of the Penal Code is unreasonable and not in the public interest. We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19." While dealing with the argument that Section 302 violates Article 21 of the Constitution, Sarkaria, J. referred to the judgment in Maneka Gandhi v. Union of India (1978) 1 SCC 248 and observed: "Thus expanded and read for interpretative purposes, Article 21 clearly brings out the implication, that the founding fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. There are several other DEVENDER PAL SINGH BHULLAR v. STATE OF N.C.T. OF DELHI [GS. SINGHVI, J.] 693 c B indications, also, in the Constitution which show that the A Constitution-makers were fuHy cognizant of the existence of death penalty for murder and certain other offences in the Indian Penal Code. Entries 1 and 2 in List Ill - Concurrent List - of the Seventh Schedule, specifically refer to the Indian Penal Code and the Code of Criminal Procedure as in force at the commencement of the Constitution. Article 72(1 )(c) specifically invests the President with power to suspend. remit or commute the sentence of any person convicted of any offence. and also "in all cases where the sentence is a sentence of death". Likewise. under Article 161. the Governor of a State has been given power to suspend. remit or commute. inter alia. the sentence of death of any person convicted of murder or other capital offence relating to a matter to which the executive power of the State extends. Article 134. in terms. gives a,right of appeal to the Supreme Court to a person who. on'apoeal. is sentenced to death by the High Court. after reversal of his acauittal by the trial court. Under the successive Criminal Procedure Codes which have been in force for about 100 years; a sentence of death is to be carried out by hanging. In view of the aforesaid constitutional postulates. by no stretch of imagination can it be said that death penalty under Section 302 of the Penal Code. either per se or because of its execution by hanging. constitutes an unreasonable. cruel or unusual punishment. By reason of the same constitutional postulates, it cannot be said that the framers of the Constitution considered death sentence for murder or the prescribed traditional mode of its execution as a degrading punishment which would defile "the dignity of the individual" within the contemplation of the preamble to the G Constitution. On parity of reasoning, it cannot be said that death penalty for the offence of murder violates the basic structure of the Constitution." E D F (emphasis supplied) H 694 SUPREME COURT REPORTS (2013] 6 S.C.R. A Sarkaria, J. then considered the question whether the Court should lay down standards or norms for sentencing and answered the same in the negative by giving the following reasons: B c D E F G H "Firstly, there is little agreement among penologists and jurists as to what information about the crime and criminal is relevant and what is not relevant for fixing the dose of pu!_\is~ment for a person convicted of a particular offence. According to Cessare Beccaria, who is supposed to be the intellectual progenitor of today's fixed sentencing movement, "crimes are only to be measured by the injury done to society". But the 20th Century sociologists do not wholly agree with this view. In the opinion of Von Hirsch, the "seriousness of a crime depends both on the harm done (or risked) by the act and degree of actor's culpability". But how is the degree of that culpability to be measured. Can any thermometer be devised to measure its degree? This is a very baffling, difficult and intricate problem. · Secondly, criminal cases do not fall into set behavioristic patterns. Even within a single-category offence there are infinite, unpredictable and unforeseeable variations. No two cases are exactly identical. There are countless permutations and combinations which are beyond the anticipatory capacity of the human calculus. Each case presents its own distinctive features, its peculiar combinations of events and its unique configuration of facts. "Simply in terms of blameworthiness or desert criminal cases are different from one another in ways that legislatures cannot anticipate, and limitations of language prevent the precise description of differences that can be anticipated." This is particularly true of murder. "There is probably no offence", observed Sir Ernest Cowers, Chairman of the Royal Commission, "that varies so widely both in character and in moral guilt as that which falls within DEVENDER PAL SINGH BHULLAR v. STATE OF N.C.T. OF DELHI [G.S. SINGHVI, J.] 695 the legal definition of murder". The futility of attempting to A lay down exhaustive standards was demonstrated by this court in Jagmohan by citing the instance of the Model Penal Code which was presented to the American Supreme Court in McGoutha (1971} 402 US 183. Thirdly, a standardisation of the sentencing process which leaves little room for judicial discretion to take account of variations in culpability within single-offence category ceases to be judicial. It tends to sacrifice justice at the altar of blind uniformity. Indeed, there is a real danger of such mechanical standardisation degenerating into a bed of C procrustean cruelty. B Fourthly, standardisation or sentencing discretion is a policy matter which belongs to the sphere of legislation. When Parliament as a matter of sound legislative policy, D did not deliberately restrict, control or standardise the sentencing discretion any further than that is encompassed by the broad contours delineated in Section 354(3), the court would not by overleaping its bounds rush to do what Parliament, in its wisdom, warily did not do." E The learned Judge also referred to the judgment in Jagmohan Singh's case and observed: "In Jagmohan, this Court had held that this sentencing discretion is to be exercised judicially on well recognised F principles, after balancing all the aggravating and mitigating circumstances of the crime. By "well recognised principles" the court obviously meant the principles crystallised by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in G those cases. The legislative changes since Jagmohan - as we have discussed already - do not have the effect of abrogating or nullifying those principles. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy H 696 SUPREME COURT REPORTS [2013] 6 S.C.R. A B c D E discernible from Sections 354(3) and 235(2), namely: (1) The extreme penalty can be inflicted only in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the circumstances, of the offence, due regard must be paid to the circumstances of the offender, also. )()( Pre-planned, calculated, cold-blooded murder has always been regarded as one of an aggravated kind. In Jagmohan, it was reiterated by this Court that if a murder is "diabolically conceived and cruelly executed", it would justify the imposition of the death penalty on the murderer. The same principle was substantially reiterated by V.R. Krishna Iyer, J., speaking for the Bench in Ediga Anamma (1974) 4 sec 443, in these terms: "The weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence ...