BACHAN SINGH ETC. ETC. v. STATE OF PUNJAB ETC. ETC

Citation: [1983] 1 S.C.R. 145

Court: Supreme Court of India

Bench: Y.V. CHANDRACHUD, P.N. BHAGWATI, R.S. SARKARIA, A.C. GUPTA, N.L. UNTWALIA

Case summary

, the challenge to the award of the death sentence as violative of Articles 19, 14 and 21, was repelled by the Constitution Bench in Jagmohan's case. , is inconsistent with the 1aw laid down bithe Constitution Bench in Jagmohan, wherein it was held that deprivation of life is...

Judgment text

BACHAN SINGH ETC. ETC• . v. l STATE OF PUNJAB ETC. ETC. May 9, 1980/August 16, i982· [Y. V. CHANDRACHUD, C. J. , P. N. BHAGWATI, R. S. SARKARIA, A. C. GUPTA AND N. L. UNTWALIA, JJ. ] C. (A} Death Penalty, whether' -constitutionally valid ? -Right to live, whether the provisions ofsection 302, Penal Code, offends Article 19 ofthe Constilution-' Distinctiop between "Public order" and "Law and Order''-Whether section 302, Penal Code, violates Article 21, the basic structure ofthe Constitution and Article 6(I) ofthe lnternatlona_/ Covenant on Civil. and Political Rights as adoPted by the General Assembly ofthe United Nations and reiterated in the Stockholm Declaration.

' (B) Code of Criminal Procedure, 1973, section 354(3)-1/ section 302, Pertal Code, is constitution(ll, whether the sentencing procedure provided in sec- , lion 354(3) ofthe Code4 Criminal Procedure, 1973 (Act Tl of1974) is u~consti· tutional on the ground that it invests with unguided and untrainmelled discretion 'and allows death sentence to he arbitrarily or freakishly imposed on a person fou~ · guilty ofmurder or any other capital offence punishable under the Indian Penal . Code with death. or, In the alternative with bnprisonment for life. (CJ Powers'ofthe Supreme Court to lay down standards or norms restricting the area ofimposition ofdeath perialty JO a narrow category ofmurders. Upholding the constitutionality of section 302, Penal Code, and section 354 (3) of the Code of Criminal Procedure Code. the Court. HELD : Per majority. Sarkaria, J, [On behalf of Cbandracbud, C. J. , AC. Gupta, N. L. Untwalia, JJ.

and on his own behalf], The right to Jife is not one of the rights mentioned in Article 19 (J) of the Constitution and the six fundamental freedoms guarailteed under Article 19(1) are not absolute rights. The condition precedent for the applicability of Article 19 is that the activity which the impugned law prohibits~and penalises, must be Q within the purview of and protectioμ of Article 19 (! ). [173 E, 174 A, B·CJ State of Bombay. v. R. M. D. Chamarbaugwala, [1957] SCR 874@ 920; Fatechand Himmatlal and Ors. v. State af Maharashtra, [1977] 2 SCR 828@ 840 ; A. K. Gopalan v. The State ofMadras, (1950] 1 SCR 88, followed. 2. The Indian Penal Code, particularly those of its provisions which cannot be justified on the ground of unreasonableness with reference to any of the specified heads, such as "public order" in clauses (2), (3) and (4) is not a law imposing restrictions on any of the rights conferred by Article 19 (1). The_re are .

several offences under the Penal Code, such as, theft, cheating, ordinary assault, which do not violate or affect "public order", but only "law and order". These offences injure only speci_tic individuals as distinguished from the public at large. It is now settled that "public order" means "even tempo of the life of the com· munity". That being so, even all murders do not disturb or affect "public order". Some murders may be of pure'ty privat~ significance and the injury or harm resulting therefrom affects only specific individuals, and, consequently. "such n1urders may not be covered by "public order" within the conten1plation of clauses (2), (3) and (4) of Article 19. Such Inutders do not lead tO public dis. order but to disorder simpliciter. Yet, no rational being can say that punishment of such murderers is not in the general public interest. It may· be noted that geJ?

eral public interest is not specified as a head in clauses (2) to (4) on which restriction on the rights mentioned in clause (i) of the Article may be justified. - [) ,[181D. H,182 A-BJ The real-distinction between the areas of "law arid order" and "public order'' lies nofmerely in the nature or-quality of the act, but in the degree and ex. tent. Violent crimes similar in nature, but committed in different contexts and circumstances might cause different reactions. A murder committed in given circumstances may caUse only a slight tremor, the wave length of which does not extend beyond the parameters of law and order. Another murder committed in different context and circumstances may unleash a tidal wave of such intensity~ 'iravity and magnitude, that its i1npa . BUt·if the impact of the law on any of the rights under clause (1) of Article 19 is.

merely in~idental, indirect, remotC or collateral and is dependent upon factors which may or'may not come into play, the anvil of Article 19 will not be available for judging· its validity. [190 A-CJ R. C. Cooper v. Union ofIndia, [1970] 3 SCR 530; Maneka Gandhi v. Union ofIndia, [1978] 2 SCR 621; Subrahmanyam_ Chattiar's case, [1940] FCR 188; Ram Singh v. State ofDelhi,. [1951] SCR 451; Express Newspapers (P) Ltd. and Anr. v. The Union of India & Ors. , [1959) SCR 12; Minnesota Ex. Rel. Olson, [1930) 283 U. S. 697@ 698; Sakal Papers (P) Ltd. and Ors. v. The Union ofIndia, [1962) 3 SCR 842; Naresh Shridhar Mirojkor and Ors. v. State ofMaharnshtraond Anr. , [1966] 3 SCR 744; Bennett Coleman's case, AIR 1973 SC 106, ref~rred to: 4. Sec~ion 299 defines "culpable Jl,omicide" and section 300 defines culpable homicide amounting to murder. Section 302 prescribeS death or impri~ sonment for life as "Penalty for murder.

It cannot, reasonably or rationally, be contended that any of the rights mentioned in Article 19 (I) of the Constitution. ' •confers the freedom. to commit murder or, for the matter of that, the freedom to oeommit any offence whatsoever. -Therefore, penal laws, that is to say Jaws which • obviously means "exceptional reasons" founded on the exceptionally grave circumstances of the particular case relating to crime as well as criminal. Thus, the legislative policy now writ Jarg~ and clear on the face ofsection 354 (3) is that on conviction of murder and other capital offences punishable in the alternat~vc with death under the Penal Code, the extren1e penalty Should be imposed only in extreme cases. [236 C-D] ~ . Bo/want Singh v. State ofPunjab, [1976] 2 SCR 684, referred to. 10.

Section· 235 (2) of the Code provides for a bifurcated trial and specifically gives the accused person a right of pre~sentence hearing, at which stage: he can bring on record ma~edal or evidence, Which may not be strictly relevant to or connected with the pilrticul'ar crime under inquiry, but nevertheless have: consistently with the policy underlined in section 354 (3), a bearing on the choice of sentence. The present legislative policy dis~ernible from section 235(2) E. read with section 35 4(3) is that in fixing the degree of punishment or making lhe choice of senterice for Various offences, including one under section 302, Penal Code, t~e Court should D. ot confine its coD. sideration "''princip3. Jly" or "merely" to the circumstances connected with the particular crime, but also give due con. sideration to. the circumstances of the criminal. l237 CPE] 11. The Supreme Colirt shot. ild not venture to formulate rigid standards in an area in which the Legislature so warily treads.

Only broad guidelines consis. tent with the policy indicated· by the Legislature can be laid down. But this much can be said that in order to qualif). for inclusion in the cate8ory of "a8gra· vating circumstances~' which may form the basis of "special reasons" in section 354(3), circumstances found on the fa.. :ts of a particular case, must evidence aggravation of an abnormal or special degree. [243 &F, 254. B-C]· Gurbakash Singh Sibbia and Ors. v, State of Punjab, [1980] 3 SCR p. 383, applied. Hy"man and Anr. v. Rose, [1912] AC 623, referred to. 12. Sections' 354 (3) and 235 (2) and. other related provisions of the Code of 1973 make! t clear that for making the choice of punishment or for. ascertai~ing , I the existence or absence of Hspecial reasons" in that context, the Court must pay due regard both to the critne and the criminal. What is the relative weight to be . given to the aggravating and mitigating factors, depends on the facts and circum· stances of the particular case.

More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because "style is the man. " In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider · the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the Culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist. . [251 G·H, 252 A-CJ Rajemfra Pra&ad v. State of U. P. [1979J 3 SCR p. 78, Bishnu Deo Shaw v. State of West Bengal, [1979]3 SCR p. 355, overruled. 13.

· There are numerous other circumstances justifying the passing of~ the lighter sentence, as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating_society. " Nonetheless, it cannnot be over emphasised that the scope and concept of mitigating factors in the" area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in section 354 (3). Judges should never be blood-thirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished ·by the Union of India, show that in the past, Courts have inflicled the extreme penalty with extreme infrequency-a fact which attests to· the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in. so grave a matter.

It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by the Supreme Court, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in section 354 (3), viz. , that for persons convicted of murder life imprisonment is tlie rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instru- 1 mentality. That ought LOt to Je done save in the rarest of rare cases when the alternative option is unquestion~bly foreclosed. l255 E-H, 256 A-C] Per Bhagwotl J. (Dissenting) ,, 1:1. Ordinarily, on the principle of stare decisis, Judges would hold them· selves bound by the view· taken in an earlier case and resist any attempt at reconsideration of the same issue.

But, for several weighty and given considera- ·tions, the Court can depart from this·precedential rule in any particular case. (258 A-BJ 1:2. The rule of adherence to precedence is not a rigid and inflexible ,.. rule of Jaw, but it is a rule of practice adopted by the Courts for the purpose of ensuring uniformity and stability in the law. Otherwise there will be no certainty and pre(! ictability in the law,. Ieading to chaos and confusion and in the process BACHAN SINGH v. PUNJAB 153 destroying the rule of law, and increasing the labour of judges. But this rule of adherence to precedents,' though a necessary tool "in the legal smithy," is only a useful servant and can not be allowed to turn into a tyrannous master. If the ruie of stare decisis were followed ·blitldly and mechanically, it would dwarf and stultify the growth of the law and affect its capacity to adjust itself to the changing needs of the society·.

[258 B-C, D,E,F] 8 1:3 There are certain issues which transcend technical considerations of stare decisis and if such an issue is _brought before the Court,' it would be nothing short of abdication of its constitutional duty for the Court to refuse to consider such issue by taking refuge under the doctrine of stare decisis. The C0urt mRy refuse to entertain such an issue like the constitutional validity of death penalty because it is satisfied that the previous decision is correct but it c"nnot decline to consider it on the ground that it is barred by the rul~ of adherence to precedents. (259 E-G] In the present Case, there are two other supervening circumstances which ·justify; may compel, re-consideration of the decision in Jagmohan's ca~e. The first is the introduction of the new Code of...... Criminal Procedure in 1973, which by section 354, sub-section (3) has made life sentence the rule, in case of offences punishable with death or in the altern.

ative imprisonment for life and provided for imposition of sentence of death only in exceptional cases for special reasons. The second and the still more important circumstance which has supervened since the decision in Jagmohan"s case is the new dimension of Articles 14 and 21 unfolded by the Supreme Court in Maneka Gandhi v. Union of India (l978) 2 SCR 663. This new dimension of Articles 14 and 21 rendefs the death penalty· provided in section 302 of the Indian Penal Code read with section 354 (3) of the Code of·Criminal Procedure vulnerable to attack on a ground not available at the time when Jagmohan's case waS decided. Furthermore~ since Jagmohan's case was decided, India bas ratified two international instruments on Human Rights and particularly the International Covenant on civil and political rights. (259 G·H, 260 A·D] Jagmohan v. State of U. P. A. I. R. 1973 SC 947, dissented from: State of Washington v. Dawson and Company 264 U. S. 646; 68 L. Edn.

219 dissenting judgment quoted with approval. · _.. ,. ,-- Maneka Gandhi v. Union of India, (1978] 2 SCR 663 applied. ' 2:1. The constitutional validity of the death penalty·provided as an alternative punishment in section 302 of the ·Indian Penal Code read with· section 354 sub-section (3) of the Code of Criminal Procedure cannot be -sustained. Death penalty does not serve any social purpose or advance any constitutional value . and is totally arbitrary and unreasonable so as be violative of Articles 14, 19, and 21 of the Constitution, (256 F, 257 El Jagmohan Singlt v. State of Uttat Pradesh, AI~ 1973 SC 947, not followed. / 2:2 The culture and ethos of the natio·n as gathered from its history, it8 tradition and .

its literature would clearly be relevant factors in adjudging the constitutionality of death penalty and so would the ideals and values embodied in the Constitution which Jays down the basic frame-work of 1hc social and political structure of the country, and which sets out the objectives and goals· to be pursued by the people in a common endeavour to secure happiness and welfare of every member of tpe society. So ~lso standards or norms set by International organisations and bodies have . relevance in determining the constitutional validity 8 of death penalty and equally important in construing_ and applying the equivocal . formulae of the Constitution would be the "wealth of non-legal learning and experienceJhat encircles and illuminates" the topic of death penally. l261 B-E] • 2:3. The objective of the United Nations has been and that is the standard set by th~ world body that capital punishment should be . abolished io. all countri'es.

This nonnative standai"d set t·y the world body must be taken into account in determining whether the death penalty can be regarded as arbitrary, excessive and· unreasonable so as to be·con,stitutionally invalid. [268 B-C] 2:4. The Constitution of India is a unique document. It is not a mere pedantic legal text but it embodies certain human values, cherished principles, -and spiritual norms and recognises and upholds the dignity of man. It accepts the individual as the focal point of all development and regards his material, moral and spiritual development as the chief concern of its various provisions. It does not treat the individual as a cog in the mighty all-powerful machine of the State but places him at the centre of the constitutional scheme and focuses on the fullest development of his personality.

The several provisions enacted in the constitutions for the purpose of ensuring the digni~y of the individual and providing for bis material, moral and spiritual development would be meaningless and iiieffeclual unless there is rule Of law to invest them with life and force. (268 C-D, G-H) · 2:5. The rule of law permeates the entire fabric of the Constitution and indeed forms one of its basic fe [t979J 1 sec 646, 12> [t973J 2 s,c,R. 54! , BACHAN SINGH v. PUNJAB (Sarkaria, J. ) 165 very wide discretion in the matter of fixing the degree of punishment and that this · di-scretion in the matter of sen-· · tence is liable to· be corrected by superior Courts... The exercise of judicial discretion on well recognised principles is, in the final . analysis, the safest P. ossible safeguard for the accused.

" In Rajendra Prasad, the majority decision characterised the above observations in'/agmohan as: "incidental observations without concentration on the sentencing criteria", and said that they are not the ratio of the decision, adding. _ "Judgments are not Bible for every line to be venerated. " (iii) ·in Rajendra Prasad, the . plurality observed : "It is constitutionally permissible to swing a criminal out of corporeal existence only if. the security of State and . society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6). " • This view again, according to Kailasam, J. , is inconsistent with the 1aw laid down bithe Constitution Bench in Jagmohan, wherein it was held that deprivation of life is constitutionally permissible if that is done according to "procedure established by law". (iv) In Rajendra P! asad, the majority has further opined : "The only correct approach is to read into Section 302~ I. P. C. and Section 354(3) Cr.

P. C. , . the human rights and humane trends in the Constitution. So examined, the rights to life and the fundamental freedoms is deprived when he • is hanged to death, -his dignity is defiled when his neck is noosed and strangled. ': Against the above, Kailasam; J. commented : 'The only change after the Constitution Bench delivered its'judgment is the introduc- _tion of Section 354(3) which requires special reasons to be given if 4 the Court is to award the death sentence. If without the restriction of stating sufficient reasons death sentence could be constitutionally ff awarded under the I. P. C. and Cr. P. C. as it stood before the amendment, it is difficult to perceive how by r~quiring special reasons to ' . be given the amended section would be· unconstitutional unless the "sentencing sector is made most restrictive and ']east vag~rious". (v) In Rajendra. Prasad, the majority has held that : "Such extraordinary grounds alo.

ne Constitutionally 8 qualify as special reasons as leave no option to the Court ' ' but to execute the· offender i. f State and society are to survive. One stroke of murder hardly qualifies for this drastic requirement, however, gruesome the killing or {lathetic the situation, unless tbe inherent·testimony coming from that act is irresistible that the murderous appetite of the convict is too chronic arid deadly that ordered life in a given locality or s~ciety or in prisqn itself would be gon~ if this man were now or later to . be at large. If he is an irredeemable, like a bloodthirsty tiger, he bas to quit his terrestrial tenancy," · According to Kailasam, J. , what is extracted above, runs directly counter t'o and cannot be reconciled with the following observations in Jagmohan' s case : "But some (murders) at least are. diabolical in conception and cruel in execution..

In some others where the IE victim is a person of h,igh s\anding in the country, sodety is liable to be recked to its very foundation. Such murders cannot be simpiy wished aw~y by finding alibis in the social maladjustment of the _ murderer. Prevalence of such crimes spea~s, in the opinion of iμany, for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval by the society... , A very responsible body ·(Law Commission) has come io __;.. the conclusion after considering all the relevant factors. On the conclusions thus offered to us, it will be difficult • to hold that capital punishment as such is unreasonable or not required in the public interest. " (vi) Kailasam, J.

was further of the opinion that it is equally beyond the functions of a Court to evolve ·"working rules for imposition of death sentence bear' ing the markings of enlightened flexibility and social -"sensibility" or to make law · "by cross-fertilisation iiAi::iIAN SINGH i•. PUNiAB (Sarkaria, J. ) i67 from sociology, history, cultural anthropology and curfent national perils - and developmental goals and, above all, constitutional ·currents''. · Thi~ function, in his view, belongs only to Patliament. The . Court must administer the law a's it stands. {vii) The learned Judge bas further expressed ·that the view taken by V. R. Krishna Iyer, J. in Rajendra Prasad that " 'special reasons' necessary for imposing death penalty must relate· not to t_he crime as such, but to the crimin~l" is not warranted by the law as it stands today. Without expressing his own opinion on the various qullstions ' raised in ·that case including the one with regard to the scope, -A.

amplification ·and application' of Section 354 (3) _of the Code of Criminal Procedure, 1974, Sarkaria, J. , in agreement with Kailiisam, J. , directed the records of the case to be submitted to the Hon'ble the Chief Justice, for constituting a large Bench "to resolve the doubts, difficulties a~d inconsistencies pointed out by Kailasam, J. " . , In the meanwhile, several persons convicted of murders and · sentenced to death; filed writ p~titions (namely, Writ Petitions 564, 165, 179, 434, 89, 754, 756 and 976 of 1979) under Article 32 of the csaid Act cannot possibly be supported as reasonable restrictions in ' the interest of the general public permissible under Article 19 (b). It was. contended that the woi"ds "trade" or ·"business" or "commerce" in sub-clause ·(g) of Article 19 (a} should be read in their widest amplitude as any activity which is undertaken or carried on with a view to earning profit.

since there is nothing irr Article I9 (I) (g) which may qualify or cut down the meaning of the critical words ; that ther<> is no justi~cation for. excluding from the meaning (1) [1957] S. C. R. 874 at p. 920, . • BACHAN SINGH \', PUNJAB (Sarkaria, J. ) 175 of those words activities which may be looked upon with disfavour by the State or the Court as injurious to public morality or public interest. Speaking for the Constitution. Bench, S. R. Das, C. J. repelled this contentio! ', in these terms : "On this argument it will follow that criminal activities undertaken and carried on with a view to earning profit will ·be protected as fundamental rights until they are restricted by 1aw. Thus there wm be a guaranteed right to , . carry on a business of hiring out goondas to ·commit assault or even murder,' or house-breaking; or selling obscene I pictures, ·of trafficking in women and so on until the law curbs or stops such activities.

This appears to us to be completely unrealistic and incongruous, We have no doubt that there are certain activitie. s which can. under no circumstance be regarded as trade or business, or commerce , although the usual forms ~nd instruments are employed therein. To exclude those activities from the meaning of those words is not to cut down their meaning at all but. to say only that they are not within the true meaning of those words. " This approach to the problem still holds the field. The observations in Chamarbaugwala, extracted above, were recently quoted with approval by V. R. Krishna Iyer, J. , while defivering "the judgment of the Bench in FC! _tehchand Himmatlal & Ors. v. State of Maharashtra('). - 2 In A. K. Gopalan v.

The State of Madras ( ), all the six learned Judges constituting the Bench held that punitive detention or imprisonment awarded as punishment after conviction for an offence under the Indian Pelial Code is outside the scope of Article 19, although this conclusion was reached by them by adopting more or. less different approaches to. the problem. · · It was contended on b~half of A. K. Gopa/an ! hat since the preventive detention order results in the detention of the detenu in a cell, his rights-specified in clauses (al to (e) and {g) of Article 19 {I) · have been infringed. . . (1))1977] 2 SCR 828 at p, 840. (6). The argument that every section of the Indian -. Penal Code irrespective of whetlier it has any reference to any of the rights referred to in sub-clauses (b) toie) and (g) is a law imposing reasonable restriction on those several rights has· not even the _merit of plausibility.

There can be no doubt that a detention as a result of lawful conviction must necessarily impair the fundamental personal rights guaranteed by articfe ,19 (1) -far beyond what is permissible under clauses (2) to (6) of that article and yet nobody can think of questioning the validity of the detention or of the section of the Indian Penal Code under which the sentence was passed. " (ii) Das, i. then gave an additional reason as to why · validity of punitive detention or of the sections of the Penal Code under which the sentence was passed, cannot be challenged on the ground of article 19, thus: ·- "Because the freedom of his person having been law-· fully taken away, the convict ceases to be entitled to exercise.. any of the.. rights protected by ·clause (1) of article 19. " (iii) The learned Judge also held that "article I9 protects some of the important attributes of personal· liberty as indepeDdent rights and the expression ~personal Jiberty' has been used in article .

21 as a compendious term including within its meaning all the varieties of rights which go to make up the person~! liberties of men. " (Page 299) Fazal Ali, J. dissented from the majority. In his opinion : "It cannot be said that articles 19, 20, 21 and 22 do not to some extent 0verlap each other. T_he case of a person who is convicted of Ill\ • offence will come under article 20 and 2 I a_nd also undpr article 22 sp far as his arrest and detention in custody before trial are concerned. Preventive detention, which is dealt with in article 22, also ·, amounts to deprivation of personal liberty which is referred to in article 19 (I) (d). " (Page 148). - Fazal Ali, J. held that since preventive- detention, unlike punitive detention, directly infringes the right under Article 19(1)(d); it inust pas~. the test of clause (5). According to the learned Judge, only those laws are required to .

be tested on the anvil of Article 19 _which directly restrict any of the rights guaranteed in Article 19(1). Applying this test (of direct and indirect effect) to the provisions of the Indian Penal Code, -tne_ learned Judge pointed out that the Code "does not primarily or necessarily impo~e restrictions on the freedom of movement, and_ it is not correct to say that it is a law - imposing restrictions on the right to move freely. Its primary object is to punish crime and not to restrict movement. The punishment may consist in imprisonment or a pecuniary penalty. If it consists in 'D a pecuniary penalty, it obviously involves no restriction on movement, but if it consists -in imprisonment, ihere is a restriction on movement. This restraint is imposed not under a law imposing restrictions on movement out under a law defining crime and making ii· punishable.

The punishm~nt is correlated with the violation of some other person's right and not with the right of movement possessed by the offender himself. In my opinion, therefore, fhe Indian Penal Code -does not come within the ambit of the words "law imposing restriction on the right to move freely. " (Pages 145-146)•. In applying the above test, which was the same as adopted by Kania, C. J. , _Fazal Ali, J. reached a conclusion contrary to that reached by the Chief Justice, on the following reasoning : "Punitive detention is however essentially different from preventive detention. A person is punitil'ely detained only after trial for committing a crime and after his guilt has been e. Stablished in a competent court of justice.

A person so convicted can tak'e his case to the State High Court and sometimes bring it to this Court also; and he can in the course of the proceedings connected with his trial take all pleas available to him including the plea of want of jurisdiction of the Court oi trial and the invalidity, of ti;! ~ law BACHAN SINGH v. PUNJAB {Sarkaria, 1. ) t8! under which he has been prosecuted. The final. judgment in the criminal trial will thus constitute a serious obstacle in his way if he chooses to assert even after his conviction that his right un1ler article 19(1)(d) has been violated. But a person. who is preventively detained has not to face such an obstacle whatever other obstacle may be in his way. " ' (Page 146) I We have copiously extracted from the jtldgments in A. K. Gopa/an's case, to show that all the prop.

ositions propounded, arguments and reasons employed or approaches adopted by the learned· Jildges in that case, in reaching the conclusion that thelndian Penal· Code, particularly those of its provisions which do not have a direct impact on the rights conferred by Article 19(1), is not a law imposing restrictions on those rights,. have not been overruled or rendered bad by the subsequent pronouncements ·of this Court in B~nk Nationalizaton(') case Of in Maneka" Gandhi's case. For instance, the i) proposition laid down by Kania, C. J. ; Fazal Ali, Patanjali Sastri, and S. R. Das, J. J. that the Indian Penal Code particularly those of its ptovisions which cannot. be justified on the ground on reasonableness with reference to any of the specified heads, such as "public ' order" in clauses (2), (3) and (4), is not a law imposing restrictions on any of the rights conferred by Article 19(I), still holds the field. Indeed, the re. asoning, explicit, or implicit in the judgments of Kania, C.

J. , Patanjali Sastri and S. R. Das JJ.. tbat such a construction which .. treats every section of the Indian Penal Code as a law· impoiing 'restriction' on the rights in Article 19(1), will lead. to absurdity is unassailable. There are several offences under the Penal Code, ·such as theft, cheating, ordinary assault, which do not violate· or effect 'public order,' 'but only law and· order'. These offences injure only. specific individuals as distinguished from the publfc at large. · II is by now settled that 'public order' means 'even tempo of the life of the community. '· That being so, even all mu~ders do not disturb or affect 'public order'. Some murders may be of purely private significance and the injury or harm resulting therefrom· affects only • specific individuals and, consequently; such. murpers may not . be· covered by "public ofder" within the contemplation of clauses (2), (3·) and (4) of article 19. Such murders do not lead to public disorder but to disorder simpliciter.

Yet, no rational being can say (I) [1970] 3 SCR 530. suilRiiM~ cotikr REPORTS [! 983] i s. c. it that punishment of such murders is not in the general public interest. It may be noted that general public interest is not specified as a head in clauses (2) to (4) on which restriction on the rights mentioned in clause ( l) of the Article may be justified. It is true, as was pointed out by Hidayatullah, J. (as he then was) in Dr. Ram Manohar Lohia's(') case, and in several other decisions that followed it; that' the real distinction between the areas of 'law and order' and 'public order' lies not merely in the nature or quality of the act, but in ,the degree jand extent. Violent crimes similar in nature, but committed in dilferent contexts and circums- . ~ tances might cause different reactions. A murder committed in given circμmstances may cause only a slight tremor, the wave length of which does not extent beyond the parameters of law and order.

Another mu,der committed in different context and circumstances may unleash a tidal. wave of such intensity, gravity and magnitude, that its impact throws out of gear the even flow of life. Noneiheless the fact remains that for such murders which do not affect "public • order", even the provision for life imprisonment in Section 302; Indian Penal Code, as as alternative punishment, would not be justifiable under clauses (2), (3) and (4) as a reasonable restriction in the interest of 'Public Order'. Such a construction must, therefore, be avoided. Thus construed, Article 19 will be attracted only to such laws, the provisions of which are capable of being tested under clauses (2) to (5) of Article 19. • This proposition was recently (1975) reiterated in Hardhan Saha & Anr. v. State of West Bengal('). In accord with this line of reasoning in A. K. Gopalan's case, a Constitution Bench of this Court • in Hardhan.

Saha' s case restated the principle for the applicability of Article'l9 by drawing a distinction between a law of preventive detention and a law providing punishment for commission of crimes, thus: "Constitution has conferred rights under Article 19 and ·also. adopted preventive detention to prevent the greater evil of elements imperilling the security, the safety of a State and the welfare of the nation. It is not possible to think that a person who is detained will yet be free to move t CI> [I! T66J I s. c. R. 709. (2) [1975J 1 s. c. R. 778 at p. 784. BACHAN SiNGH v. PUNJAB (Sarkaria, i) tfd 'A 'or assemble or form association or unions or have the right to reside in any part of India or have the freedom of speech • or expression. Suppose a person is convicted of an offence of cheating and prosecuted (and imprisoned) after trial, it is not open to say that the imprisonment should be tested. with reference to Article, 19 for its reasonableness.

A law which attracis Article 19 therefore must be such as is capable of being tested to be reasonable under clauses (21 to 5 of Article 19. " (emphasis and parenthesis supplied. ) -~ The last sentence which has been underlined by us, appears to lend implicit approval to the rule of construction adopted by the majority of the learned Judges in A. K. Gopalan's case, whereby they excluded from the - purview of Article 19 certain provisions of the Indian Penal Code providing punishment for certain offences which - could not be tested on the specific grounds-embodied in clauses (2) . to (5) of that Article. This proposition enunciated in. A. K. Gopalan's case is only a product of ,the application of the basic canon that a construction which would lead to absurdity, should be eschewed. In R. C. Cooper v. Union of India (popularly known as Bank Ill Nationalization case), the majority adopted the two-fold test for .. determining as to when a law violated fundamental rights, namely : "(!

) It is not the object of the authority making the law impairing the right of a citizen, nor the form of action that determines the protection he can claim. · (2)-It is the effect of the law and of the action upon the right which . attract· the jurisdiction of the Court to grant relief. 'The direct operation 'of the act upon the rights forms the real test. " In Maneka Gandhi'v. Union of India (ibid), Bhagwati, J. explained the scope of the same test by saying that a law or and order made thereund~r will - be hit by article 19, ·if the direct and inevitable consequence of such law or order is to abridge or take away any one or more of the freedoms guaranteed by Article 19(1). If the effect and operation of the statute· by itself, upon a person's _ fundamental rights is remote or dependent upon ! 'factors which may or may not come into play", then such-statute is not u/tra-vires on the ground of its being· violative of that fundamental right. Bhag- wati J.

described this proposition as "the doctrine of intended and real effect" while Cbandrachud, J. (as he then was) called it "the . test of proximate effect and operation of the statute. " The question is, whether R. C. Cooper & Manek. a Gandhi have given a complete go-by to the 'test of direct and indirect effect, 8 sometimes described as form and object test' or 'pith and substance rule', which was adopted by Kania, C. J. and Fazal Ali, J. in A. K. ·Gopa/an's case. In our opinion, the answer to this question cannot be in the affirmative. In the first place, there is nothing ~uch in the name. As Varadachariar, J. put it in Subrahmanyan Chettiar's(') ~ase, such rules of interpretation were evolved only as a matter of reasonableness and common sense and out of the necessity of satis- . factorily solving conflicts from the inevitable overlapping of subjects in any distribution of powers.

By the same yardstick of common sense, the 'pith and substance rule' was applied to resolve the question of the constitutionality of a law assailed on the ground of its being violative of a fundamental right. 0 ' Secondly, ·a survey of the decisions of this Court since A. K. Gopalan, shows that the criterion of directness whicli is the essence of the test of direct and indirect effect, ha; n~ver been totaliy a. bandoned. Only the mode of its application has been modified and its scope amplified by judicial ,activism to maintain its efficacy for solving new constitutional problems· in tune with evolving concepts of rights and obligations in a strident 'democracy. The test of direct and indirect effect adopted in A. K. Gopalan was. approved by the Full Court in Ram Singh v. State of Delhi. (') Therein, Patanjali Sastri, J. quoted with approval the passages (i) and (ii) (which . we have extracted earlier) from the judgment of Kania, C. J. Altho~gh Mahajan and Bose, JJ.

differed on the merits, there was no dissent on this point among all the learned Judges. · The first decision, which, though purporting to follow Kania, .. C. J's. enunciation in A. K. Gopalan, imperceptibly added another dimension to the test of directness, was Express Newspapers (Private) Ltd. & Anr. v. The Union of India & Ors. (') In that case, the cons- ... (! ) [1940] FCR 188. H . '(2) [1951] SCR 451. (Jl [1959] SCR 12. BACHAN SINGH v, PUNJAB (Sarkaria, J. ) ' ISS titutional validity of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, and the legality of the decision of the Wage Board, constituted thereunder, were challenged. The impugned Act, which had for its object the regulation of the conditions of service of working journalist• and other persons· employed in newspaper establishments, provided, i~ter alia, for the payment of gratuity to '} working journalist who bad b~en in continuous service for a certain period.

It also · regulated hours of _work and le. ave and provided for ret_renchment compensation. Section 9 (I) laid down the pri~ciples that the Wage Board was to follow in fixing the rates of wages of working journalists. . One of the. contentions of the petitioners in that case was that impugned Act violated their fundamental rights under Articles 19 (I) (a), 19 (I) (g), 14 and 32 of the Constitution and that the decision of the Wage Board fixing the rates and scales of wages wh'ich imposed too heavy a fihancial burden ·on the industry and spelled its total ruin, was illegal and void. It was contended by the learned Attorney General in that case that since the impugned . legislation was not a direct -legislation on the subject of freedom of speech and expression. Art. 19 (! )(a) would have no application, the test being ncjt the effect or result of legislation but its subject-matter. In support of his contention, he relied upon the observations on this point of Kania,· C. J. in A. K.

Gopalan. It was further- urged that the object of the · impugned Act was only to regulate certain conditions of service of working journalists ',and other persons employed i~ the newspaper • . establishments and not to take away or abridge the freedom of speech. or expression enjoyed by the petitioners-and, therefore, the impugned' ·Act could not come within the prohibition of Article 19 (l) (a) read with Article 32 of the Constitution. - _/.. ,___ . On the other hand, the petitioners took their stand on a passage in the decision of. the Supreme Court of United States in Minnesot:· 1 Ex Rel. , O/son,( }'which was as under : "With respect to these contentions it is enough to say that in passing upon constitutional questions the 'Court has regard to substance and not to mere/matters·of form,-and_ , that, in acc_ordance with familiar principles, the statute must be tested by its operation and effect. " · (I) [1930] 283 US 697 at p. 708• • SUPRl! ME COURt REPORtS (1983) I s. c. k.

It was further submitted that in all such cases, the Court has to look behind the names, forms and appearances to discover the true character and nature of the legislation.. Thus considered, 'proceeded the argnment, the Act by laying a direct and preferential burden ·an the press, wonld tend to curtail the circulation, narrow the scope of dissemination of information and fetter the petitioners' freedom to choose the means of exercising their rights of free speech (which includes the freedom of the press). It was further submitted that those· newspaper employers who were marginally situated niay not be able to bear the strain and have to disappear after closing down their establishments. N. H. Bhagwati, J. who delivered the unanimous Judgment of the Constitution Bench, after noting that the object of the impugned legislation is to provide for the amelioration or' the conditions of the workmen in the newspaper industry, overruled this contention of the employers, thus : , .

"That, however would be a consequence which would be extraneous and not within the contemplation of the legislature. It could therefore hardly be urged that the possible effect,of the impact of these measures in conceivable cases would vitiate the legislation as such. All the consequences which have been visualized in the behalf by the petitioners, viz. , the tendency to curtail circulation and ·thereby narrow , the scope of dissemination of informatJon, fetters on the • petitioners' freedom to choose the means of exercising the · right, likelihood of the independence . of the press being nndermined ·by having to seek government aid; the imposition of penalty on the petitioners' right to choose the instruments for exercising the freedom or compelling them to seek _)_ alternative· media, etc. , would . be remote and depend upon various factors which may or may not come into play.

Unless these were the direct 1Jr inevitable consequences of the meatlures enacted in the impugned Act, it would not ·be f possible to strike down the legislation as having that effect and operation. " (emphasis added) _, The learned Judge further observed that the impugned Act could be "legitimately characterised as a measure which affects the press", ff but its "intention or the proximate effect and operation" was not such as would take away or abridge the right of freedom of speech and • BACHAN SINGH v. PUNJAB (Sarkaria, J. ) 18? expression guaranteed iri Article 19 (I) (a), therefore, it could not be held invalid on that ground. The impugned decision of the Wage ·i Board, hOwever, was held to be ultra vires the Act and contrary to the principles of natural justice. It may be observed at this place that the manner in which. the test of direct and indirect effect was applied ~y N. H. Bhagwati, J. , ll ·was not very different from the mode in Which Fazal Ali,· J.

applied it-to punitive detention as punishment after conviction for an offence under the Indian Penal Code. N. H. Bhagwati, J. , did not discard the test adopted by Kania, C. J. , in A. K. Gopalan, in its entirety; he merely • extended the application ? f the criterion of, directness to the operation and effect of the impugned legi~tion. Again, in Sakal Papers (P) Ltd. · & Ors. v. The Union of India(') this Court, while considering the constitutionat validity of the Newspaper (Price and Page) Act, 1956 and Daily Newspaper (-Price and Page) Order, 1960, held that the "direct and immediate" effect of the impugned Order would be to restrain a newspaper from publishing any number of pages for carrying its news and views, which it has a fundamental right' under Article 19 (I) (a) and, therefore, the Order was violative of the right of· the• newspapers guaranteed by Article 19 (I) (a), and as such, invalid.

In this case, also, the emphasis had shifted from the object and subject-matter of the impugned State action to its direct and immediate effect. In Naresh Shridhar Mirajkar & Ors. v. State of Maharashtr. a 2 & Anr. ,( ) an order prohibiting the publication of the evidence of witness iri a defamation case, passed by a learned Jndge (Tarkunde, J. ) of the Bombay High Court, was impngned on the. ground that it violated the petitioners' right to free speech and expression guara_nteed by Article 19 (I) (a). Gajendragadkar, C. J. , lWanchoo, , Mudholkar; Sikri and Ramaswami, JJ. , concurring) repelled this contention with these illuminating observ. ations : "The argument that the impugned order affects the fundamental rights of the petitioners under Article 19 (I), is based on a complete m'isconception about the true nature and (I) [1962] 3 SCR 842. (2) [1966] 3 SCR 744. charaeter of judicial process and of judicial decisions. When a Judge deals with matters brought before him for \.

his adjudication, he first decides questions of fact . on which the parties are at issue, and then . applies. the relevant law to the said facts. Whethe. r the findings of fact recorded by the Judge are right. or wrong, and whether the conclusion of law drawn by him suffers from any infirmity, can be · considered and decided if the party aggrieved by the decision of the Judge takes the matter up before the . appellate Court. But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of . , • competent jurisdiction in or in relation to matter brought before him for adjudicati'¥! can affect the fundamental rights of the citizens under Article 19 (I). What the judicial decision purports to do is to decide the controversy between the parties bfougl;it before the court and nothing more.

if this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by court in or in relation to a matter brought before it for its decision cannot be said to affect the fundamental rights of citizens under Article 19 (! ). " "It is well-settled ,that in examining . the validity· of legislation, it is legitimate to consider whether the impugned legislation is a legislation directly in respect of the subject covered by any particular article of the Constitution, or touches the said article only incidentally or indirectly'. ' "If the test of direct effect and object which is sometimes described as the pith and substance test, is thus applied in considering the validity of' legislation, it would not be inappropriate to apply the same test to judicial ' decisions ·iike the one with which we are concerned in th« present proceedings.

As we have already indicated, the impugned order was directly concerned with giving·such protection to the witness as was thought to be necessary in order to obtain true evidence in the case with a. view to do justice between the parties. If, incidentally, as a·result of this-order, the p. etitioners were not able to report what they heard in court, that cannot be said to make the impugned order invalid under Article 19 (I) (a). " BACHAN Sllj9H v. PUNJAB (Sarkaria, J. ) 189 , We have already mentioned briefly how the test of· directness was developed and reached its culmination ill Bank Nationalization's case and Maneka Gandhi's case•. . From the above conspectus, it· is clear that the test of direct· and indireci. effect was not scrapped. Indeed, there is no dispute that the test of 'pith and substance' · of the ·subject-matter' and of direct and of incidental effect of legisla\ion is a very u1efuf test to determine the question of legislative comp'eten ce Le.

, in ascertaining whether an Act· falls under one Entry while incidentally encroaching ·upon another Entry. Even for determining the validity of a legislation on the ground of infringement of fundamental rights, the subject. matter and the ·object of the ·legislation are not altogether irrelevant. For instance, if the subject,matter of the legislation directly cc;wers any of. the fundamental freedo. ms mentioned in Ariicle 19 (I), it must pass the test of reasonableriess under the relevant head in clauses (2) to (6) of that Article. If the legislation do~s not directly deal with any of the rights in Article 19 (1), that may not conclude • the enquiry. It will have to be ascertained further whether by its . ditect and immediate operation, the impugned legj~lation abridges any of. the rights enumerated ! n Article 19 (! ). · · In Bennett Coleman,(') Mathew, J. in his dissenting judgment referred with approval to the test as expounded in Express Newspapers. He.

further observed that "the 'pith and 'substance' test, though not strictly appropriate; must serve a·useful purpose in the proce~s of deciding whether the . provisions in question which work . same interference with the freedoin ofspeech, are essentially- regulatory in character". · ' From a survey of the cases noticed above, a comprehensive test wh. ich can be formulated, may be re-stated as under : Does the impugned law, in its pith and substance, whatever may . be its form and ·object, deal with any of the . G fundamental rights conferred by Article 19 (l) ? If it does, does it abridge or abrogate any of those rights ? And even . , if it does not, in its pith an. d substance, deal with any of thefundame~tal rights conferred by Article 19 (I), is the (I) A. IR 1973 S. C. 106. 190 StJPRBMB COURT REPORTS [1983] 1 s. c. a. direct and inevitable effect of the impugned law such as to abridge or abrogate any of those rights ?

'1 The mere fact that the impugned law incidentally, remotely or collaterally has the effect of abridging or abrogating those rights, will not satisfy the test·. If the answer to the above queries be in the B' affirmative, the impugned law in order to be valid, must pass the test of reasonableness under Article 19. But if the impact of the law qn any of the rights under clause (1) of Article 19 is merely incidental, indirect; remote or collateral and is dependent upon factors which may or may not come into play, the anvil of Article 19 . ~ , will not be avilable for judging its validity. · Now, let us apply this test to tlje provisions of the Penal Code in question. Section 299 defines 'culpable homicide' and Section 300 defines culpable . homicide amounting to murder. Section 302 prescribes death or imprisonment for life as penalty for murder..

It cannot, reasonably or·rationally, be contended that any of the rights mentioned in Article 19(1) of the Constitution confers the freedom to commit murder or, for the matter of that, the freedom to commit any offence whatsoever. Therefore, penal laws, that is to say, laws which define offences and prescribe punishment for the commission of offences do not attract the application of Article 19(1). We cannot, of course, say that the o15ject of penal laws is generally such a:s not to involve any violation of the rights conferred by Article 19(1) beca~se after the decision of this Court in the B~nk Nationalization case the theory, that the object and form of the State action • alone determine t)le extent of protection that may be claimed by an individual and that the effect of the State action on the fundamental right of the individual is irrelevant, stands discredited.

But the point of the matter is that, in pith and ·Substance, penal Jaws do not deal with the subject matter of rights enshrined in Article J9(1). )_ That again is not enough for the purpose of deciding upon the applicability of Article 19 because as the test formulated by us above shows, even if a Jaw does not, in its pith and substance, deal with any of the fundamental rights conferred by Article 19(1), if the .. direct and inevitable effect of the law is such as to abridge or abrogate any of those rights, Article 19(1) shall have been attracted. It would then become necessary to test the validity of even a penal law on the touchstone of that Article. On this latter ashct of the matter, we are of the opinion that the d~privation of freedom consequent upon an order of conviction and sentence is n'ot a direct , ' BACHAN SINGH v. PUNJAB (Sarkaria, J.

) 191 ' and inevitable consequence of the penal law but is merely incidental to the order of conviction and sentence which may or may not come into play, that is to say, which may or may not be passed. Consj· dering therefore the test formulated by·us in its dual aspect, we are of the opinion that Section 302 of the Penal Code does not have to stand the test of Article 19(1) of the Constitution. • This is particularly true of crimes, inherently vicious and per· nicious, which under the English 'Common Law were classified as crimes ma/a in se as distinguish~d from crimes ma/a prohibita crimes ma/a in se embrace acts immoral or wrong in themselves, such as, . ,. . , murder, rape, arson, burglary, larceny (robbery and dacoity); while crimes. ma/a prohibita embrace things pr~hibited by statute as infring· · ing on others' rights, though no moral turpitude attaches to such crimes. Such acts constitute crimes only because they ar~ so prohi· bited. (See .

Words and Phrases, Permanent Edition, Vol. IO). While crimes ma/a in se do not per se, or in operation directly and inevitably impinge on the rights under Article 19(1), cases under the other category of crimes are conceivable where the law relating to them directly restricts or abridges such rights. The illustration given by Shri Sorabji will make the point clear. Suppose, a law is enacted which provides that it shall be an offence' to level any criticism, whatever, of the Government established by law and makes a further provision prescribing five years' imprisonment as punishment for such an offence. Such a law (i. e. its provision defining the offence) will directly and foevitably impinge upon the right guaranteed under clause (a) of Article 19(1). Therefore, to be valid, it must pass the test of reasonabl. eness embodied in clause (2) of the Article. . But this cannot be said in regard to the provisions of the Penal Code with which we are concerned.

Assuming arguendo, that th~ provisions of the Penal Code, particularly those. ·providing death penalty as an alternative punish-' ment for murder, have to satisfy the requirements of reasonableness and public interest under Article 19 the golden strand of which according to the ratios of Maneka Gandhi runs through the basic structure of Article 21 also the further questions to be determined, in this connection, will be: On whom will the onus of satisfying the requirements under Article 19, lie ? ' Will such onus lie on the State or the person challenging its validity ? And what will be the nature ofjhe onus? w'ith regard to onus, no hard and fast rule of universal application in all situations, can be deducted from the decided cases. In some decisions, such as, Saghir Ahmad v. State of Uttar Pradesh(') 2 and Khyerbari Tea Co. v. State of Assam & Ors.

( ) it was laid dowD" by this Court that if the writ petitioner succeeds in showing that the impugned law ex facie abridges or transgresses the rights. coming . . under any of the sub-clauses of clause (1) of Article 19, the onus shifts 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 be applicable to the case, and, also to place material before ihe court in support of that contention. If the State does nothing in that respect, it is not for the petitioner to prove negatively that it is not covered by any of the permissive clauses. Acontrary trend, however, is discernible in the recent decisions , of this Court, which sta~t with the initial presumption in . favour of the constitutionality of the statute and. throw the burden of rebutting that presumption on the party who challenges its constitutionality on the ground of Art. 19. • . . , In B. Banerjee v.

Anita Pan (') this Court, speaking through V. R. Krishna Iyer, J. ,. reiterated the ratio of Ram Krishna Dalmia's case,(')-that : ·"there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attack it to sbow 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 people, that its laws are directed to problems made manifest by ·experience and that its. discriminations are based on adequate grounds. " _G It was emphasised that "Judges act not by hunch but on hard facts • . properly brought on· record an~ sufficiently strong to rebuff the (1) [1955] l SCR 707. (2) AIR 1964 SC 925. (3) (1975] 2 SCR 774 at p. 787, (4). [1959] SCR 279, 297~propositions (b) & (c). •/ 1. BACHAN SINGH v. PUNJAB (Sarkaria, J. ) 193 initial presumption of constitutionality of legislation.

Nor is the Court a third Chamber of the House to weigh wh'ether it should draft the clause differently". Referring, inter alia, to the decision of this Court in R. M. D. Chamarbaugw~la (ibid), and Seervai's 'Constitutional Law of India', Vol. I, page 54, it was recalled, "Some courts have gone to the extent of holding that there is a presumption in . . favour of constitutionality, and a law will not be declared unconsti· tutional unless the case is so clear as to be free from doubt; and to doubt the constitutionality -of a law is to resolve it in favour of its va,lidity". Similar view was taken by a· Bench of seven learned Judges of this Court· in Pathumma v. State of Kerala. (') Behind the view that there is a presumption of constitutionality of a statute and the · onus to rebut the same lies on t\lose who .

challenge the legislation, is the rationale of judicial restraint, a recognition of the limits of judicial review; a respect for the boundaries of legislative and judicial fu,nctions, and the judicial-responsibility to guard the trespass from one side or the other. The primary function of the courts is to interpret and apply the laws according to the will of those who made them and not to transgress into the legislative domain of policy-making. " -. 'The job of a Judge is judging. and not law-making". In Lord Devlin's words:. · "Judges. are the' keepers of the. law and the keepers of these boundaries cannot, also, be among out-riders. " A similar warning was echoed by the Supreme Court of the United States iμ Dennis v. United States(') in these terms : F. "Courts are not -representative bodies. They are not designed to be a good reflex of a democratic society.. Their judgment is best informed, and therefore most dependable, within narrow limits.

Their essential quality is detachment, founded on independence. History teaches. that the independence of th. e judiciary is jeopardized when . courts become embroiled in the p! Cssions of the day and assume primary responsibility in choosing between competiog political, economic and social pressures. " ' (I) [1978] 2 S. C. R: 547 R (2) 341 Os 494, 5i5:. 95 L. E society · from dangerous individuals by imprisonment or eXecution. " · (! ) A. I. R. 1974 S. C. 799 (2) [19771 3 s. c. R. 112 (3) [1979] 1 s. c. R. s12 (4) 256 us 86 \\ I. • In Furman v. Georgia, Stewart, J. took the view _that death penalty serves a deterrent as well as retributive purpose. Jn his view, certain criminal conduct is so atrocious that society's interest in deterrence and retribution wholly outweighs any considerations of reform or rehablitation of the perpetrator, and that, despite the ineonclusive empirical evidence, only penalty of death will provide . maximum deterrence. · Speaking for the majority,.

in Gregg v. Georgia, Stewart, J. reiterated his views with regard to the deterrent and retributive effect of death penalty. - .. Now, we may notice by way of. specimen, the views of some jurists and scholars of note. Sir James Fitzjames Stephen, the. gre. at jurist, ·who was concerneil with the drafting of the Indian Penal Code, also, was a strong exponent of the view that capital punishment has the greatest value ~s a deterrent for murder and other capital offence. To quote his words : . ,.. ''. No other punishment deters men so effectually from committing crimes as the punishment of death. This is one of those propositioqs which it is difficult to prove, simply because they are in themselves more obvious than any proof can make them. It is possible to display ingenuity · in arg! ling against it, but' that is all. The whole experience of mankind is in the other direction.

The threat of instant death is the one to which resort has always been made when there was an absolute necessity for producing some result. No one goes to certain inevitable death except by compulsion. Put the matter the other the way. Was there ever yet a criminal who, wheri sentenced to death and br_ought out to die, would refuse te offer of commutation of his sentence for the severest secondary punishment ? Surely not. Why is this ? · It can only be because 'All that a man has will he give for . his life'. In any secondary punishment, however terrible, there is hope; but death is death; its terrors cannot be described more forcibly. " · · Even Marchese De Cesare Bonesana Beccaria, who can be 0 ' ' called the fath~r of the modern Abolitionist movement, concedes in • • his treatise, "Del Delilli a de/la Pana" (1764), that capital puniShmeut would be justified in two instances : Firstly, in an execution ~;. BACHAN SINGH v. PUNJAB (Sarkaria, J. ) 201 .

' would prevent a revolution against popularly established Gpvernment; and, secondly, if an execution·was the only way to deter others from committing a crime. The adoption of double standards for capital punishment in the rMlm of conscience is considered by some.. scho)ars as the biggest infirmity in the Abolitionists' case. . . Thorsten Sal/in is one of the penologists who has mad~ scientific study of the subject of capital punishment and compiled the views of various scholars of the 19th and 20th centuries. In his book "Capital Punishment annot be . proven on either side but I would not like to • have to try to convince any one that capital punishment is not a deterrent. Statistically this cannot be proven because ,. the deterrent effect on . both capital punishment and life imprisonment is obscured by the fact that most criminals plan a crime on the basis that they are. going to avoid anv penalty...!

say, the deterrent value is with respect to people who did not commit crimes, who were deterred from becomi11,g murderers by the fact that capital punishment or some other heavy penalty would be meted out to them if caught. " (Quoted in Sellin's Capital Punishment). The Law Commission of India in its 35th Report, after carefully sifting all the materials collected by them, recorded their views regarding the deterrent effect of capital punishment as follows : "In our view capiial punishment does act as a deterrent. We have already discussed in detail several aspects of this topic. We state below, very briefly, the main poi~ts that have weighed with us in arriving at. this conclusion : (a) Basically, every human being dreads death. .. (b} Death, as a penalty, stands on a totally different · level from imprisonment for life or any otber punishment. ·· The difference is one of quality,. and not merely of degree.

Ii' (c) Those who are specifically qualified to express an opinion on the subject, including particularly the majority of the replies received from State Governments, Judges, Members of Parliament and Legislatures and Members of the Bar and poiice officers-are definitely· of the view that the deterrent object of capital punishment is achieved in a fair measure in India. ' (d) As to conduct of prisoners released from jail (after undergoing imprisonment for life), it would be difficult 'to come to a conclusion, without studies extending over a long period of-years. BCHAN SINGH v. PUNJAB (Sarkaria, J. ) 207 (e) Whether any other punishment can. possess all the advantages of capital punishment is a matter of doubt. · · · (f) Statisties of other countries are inconclusive on the subject If they are not regarded, as proving the deterrent effect; neither can they be regarded as conclusively disproving it. " .

Views of the British Royal Commission : The British Royal Commission, after making an exhaustive . study of the issue of capital. punishment and its deterrent valu~, in their Report (1949-53), concluded : "The general conclusion . which we. reach, after careful review of all the evidence we have· been able to obtain as to the deterrent effect of capitat punishment, may be stated as follows. Prima facie the penalty of death is likely to O have a stronger effect as a deterrent to normal human beings than any other form of punishment, and there is some evidence (though no ·convincing statistical evidence) that this is in fact so. But this effect does not operate universally or uniformly, and there are many offenders on ·l. ,_ whom it is limited and may'often be negligible.

" We may add that whether or not death penalty in actual practice acts as a deterrent, cannot' be statistically proved, either way, "because statistics as to how many potentisim murderers· were deterred from committing murders, but for the existence of capital punishment for murder, are difficult, if not altogether impossible, to collect. Suet, statistics of deterred potential murderers are difficult to unravel as they remain hidden. hi the innermost recesses _of their mind. Ret,ibution in the sense of reprobation whether a totally rejected concept of punishment. 'Ev~n retribution in the sense of soc. iety's reprobation for the worst of crimes, i. e. , murder, is not an altogether outmoded concept. This view is· held by many distinguished sociologist, jurists and judges.

· J,ord Ju~tice Denning, Master of the Rolls of the Court of ' Appeal in England, appearing before tbe British Royal Commission on Capital Punishment, stated his views on this point as under : "Punishment is the way in which society expresses its denunciation of wrong-doing, and, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. :It is a mistake to consider the objects of punishment as being 'deterrent or reformative or preventive and nothing else... The truth is that some crimes are so outrageous that society insists. on adequate punishment,. because the wrong-doer deserves it, irrespective of whether it is a deterrent or not," That retribution is still socially acceptable function of punishment, was also the view expressed by Stewart, J. , in Furman v. Georgia, at page 389, as follows : ' " ...

I would say only that I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The instinct for retribution is part of the nature of man, and channeling that instant, in the administration of criminal justice serves an important purpose in promoting the stabi! ity of a society E. governed by law: When people begin to believe that organized society is. unwilling or unable to impose upon " criminal offenders the punishment they 'deserve', then there are sown the seeds of anarchy of self help, vigilant justice, and lynch law. " Patrick Devlin, the eminent juri. st and judge, in •his book, "The Judge", emphasises the retributive aspect of the purp_ose of· punishment and criminal justice, thus: "I affirm that justice means retribution and nothing else. Vindictiveness is the emotional outflow of retribution and justice has uo concern with that. But it is concerned with the measurement of deserts.

The point was put lucidly and simply by the . Vicar of Longton in a letter to The Times, from which with his permission I quote : Firstly, far from pretending that retribution should have no place in our penal system, Mr. Levin should recognize that it is ' BACHAN SINGH v. PUNJAB (Sarkaria, J. ) '209 ' logically impossible to remove it. If it were removed, all punishments should be rendered unjust. What could be more im. moral than to inflict imprisonm. ent on a criminal for · the sake of deterring others, if he does not deserve it ? Or would it be justified to subject him to a compulsory attempt to reform which includes a denial of liberty unless, · again he deserves . it ? Retribution and deterrence are not two divergent enM of capital punish~eni. ' They are convergen't goals which uitimately i;nerge into \me. ' How these ends of punishment cpalesce into one was described by the 'Law Commission of India; thus : ;.

"The retributive object, of capital punishment has been the subject-matter of sharp attack at the hands• of- tbe abolitionists. We appreciate that many persons would regard the i~stinct of revenge ·as barbarous. · How , far it- should form part of the penal philosophy in modern times will always remain a matter of controversy. No useful purpose will be served by. a discussion as to whether the instinct of retribution is or is not commendable. The fact remains, however, that whenever. there is a serious crime, the society feels a sense of disapprobation. If there is any element'of retribution in· the law, ·as admihistered now, it is not the instinct of the man of . jungle but rather · a refined evolution of that instinct the feeling prevails in .. the public is a fact of which notice is to be taken. The Jaw does not encourage it, or exploit it for any undesirable ends.

Rather, by reserving tbe death penalty for murder, and thus visiting this gravest crime with the gravest punishment,· the law helps ;the element of retribution merge into · the element of deterrence. " · . · [Para 265 (18j, 35th Report] Earlier in 1949-1953, the. British Royal Commission in Para 59 G, . of its Report spoke in a somewhat similar strain ; ' \ .. ,"We think it is reasonable to suppose that t~e deterrent force of capital punishment . operate• not only by affecting , the conscious thoughts of individuals tempted ·to ·commit murder, but also by lmilding up in the ~ommunity, over a I \ 210 · SUPREME COURT R~PORTS [1983) 'I S. C. R. long period of time, a deep fe~ling of peculiar abhorrence for the crime of murder. The fact that m'en are hung for murder is one great reason why murder is considered so dreadful a crime.

This widely diffused effect on the moral consciousness of society is impossible to assess, but it must be at least as important as any direct part which the death penalty may play as a deterrent in the calculations of potential murderers. " According to Dr. Ernest Van Den Haag, a New York psychologist arid author, and· a leading proponent of death penalty, "a very strong symbolic value" ·attaches to executions. "The motives for the death penalty may indeed include vengeance. Legal vengeance solicjifies social solidarity against law-breakers and probably is the only alternative to the disruptive private revenge of those who feel harmed. " · , (See The Voice (USA) June 4, 1979) . . I The views of Lloyd George, who was the. Prime Minister· of . England during the First World .

War, have been referred to· in the book "Capital Punishment" (1967) by Thorsten Sellin at page 65, as below: "The first function of capital punishment is to give emphatic expression to society's peculiar abhorrence of murder... It is important that murder should be regarded with peculiar horror.... I believe that capital ·punishment does, in ·the present state of society, both ex~ress and s. ustain the sense of moral revulsion•for murder. " This view is not without respectable support in the iurisprudent. ial literature of. today, despite an opinion to the contrary. (See also the Royal Commission's Report, 1949-53). In relying, inter a/ia, upon the evidence before it, in~luding that of Lord Denning, the Royal Commission recognised a strong and widespread demand for retribution. It is a common phenomenon in all the civilized countries that. some murders are so shockingly offensive that there is a general outcry from the public for infliction of the ultimate. penalty on the cri~inal.

In regard to the retributive aspect of capital punishment, we. may cite \in~ re~ent i1lustration showing l\ow demand for retribu_, BACHAN SINGE! v. PUNJAB (Sarkaria, J. ) 211 tion, in the sense of society's instinctive disappro. val of the out- . rage'ous conduct of the murderer is indelibly ingqined in conlempora:ry'·public opini? n even in advanced countries. In November 1978, George Moscone (Mayor) and Harvey Milk (Supervising Officer) of San Francisco were cruelly, assassinated by Dan White, apolice-man. Si~ months later, on May 22, 1979, a jury of seven men and five women rejected the. charge of firstdegree murder, and in consequence, did not . award capital punishment to Dan White for this heinous double murder. ·· . Public opinion • reacted sharply. . Public protest against this decision spontaneously manifested itself, in a. burst of flame. and fury. Thousands of ' ' outraged demonstrators rampaged through the Civic Centre, ... ' ' \ RBMll COUU REPORTS [19831 1 s. c. lt.

That is why statistical attempts to assess the true penological value of capital punishment, remain inco! lclusive. · Pursued beyond a certain point, both the Abolitionists and the Retentionists retreat into their own conceptual bunkers firmly entren· ched in. their respective "faiths". We need not take sides with either ·. of them. -T~ere is always . a danger in adhering too rigidly to COD· cepts. As Prof. Brett has pointed out "all'concepts are. abstraction. s from reality, and that in the process of abstraction something of the reality is bound to be lost''('). We must therefore, view the problem against the perspective of the hard realities of the time and ! he c~n ditions prevailing in the world, particularly in our own country. . ' . A review.

of the wo~ld events of the last seven or eight 'years, as evident from Encyclopaedia Britannica Year Books and other material ·referred· to by the learned cou~sel, would show that m~st countries in the world are in the grip of an ever-rising tide of violent crime. · Murders ·for monetary gain or from misdirected political motives, robbery, rape assault are on the increase. India is no exception. . The Union of India has produced for our perusal a statement of facts and figures showing the incidence of violent ~rime, including murder, dacoity and robbery, in the various· States of India, duri. ng the years 1965 to 1975. Another statement has been furnished showing the number of persons ~onvicted of murder and other capital offences and sentenced to . death 'in some of the States of India during the period 1974 ·to . 1978. This statement however, is incomplete and i11adeq\Jate.

On account of that deficiency and for the general reasonft set ont above, it cannot, even statistically ' show conclusively or with any degree of certainty, that capital '. punishment has no penological worth. But the first statement does bring out clearly the stark. reality that the crimes of murder, dacoity and r~bbery in India are since 1965 increasing. · I Now, looking. -around at the world during the last decade, we / may ~ecall ·that in Furman v. Georgia {decided on June 29, 1976), the Supreme Court of the United States held by a majority, that the imp~sition and carrying out of the death penalty constituteS 'cruel and unusual' punishment, in violation of the Eighth and Fourteenth ff (1) An Enquiry into Cdminal Guilt by Prof. Peter Brett, 1963 Edn. Mel· bourne, page 13. ' . 'BACHAN SINGH v. PUNJAB (Sarkaria, J. i 217 Amendments. . Bren'rian and Marshall, JJ.

(differing froni the plurality) we11t to the extent'of holding that death penalty was per se unconstitutional as it was a cruel'. and unusual punishment. In so ho,lding, these learned Justices purported t-0 adopt the coqtemporary . standards of decency prevailing among the enlightened public of the United States. Justice Marshall ruled that "it was morally unacceptable to the people of the United States''" This opinion of the learned Justices was sharply rebuffed by the people of the United States through their . chosen ,representatives. Soon after the decision . in Furman, bowit{g to the ihrust of public opinion, the LegiSlatures of not less than 32 · States, post-haste revised their penal laws and reinstituted death'penalty for murder and certain other crimes. Public . c opinion polls then· taken\show that approximately 70 per. cent oL ,... _, ' ' Americans 'have been in favour of death I? enalty, (See 'The Voice'; supra).

In 1976, a Gallup Poll taken in' the Unitted States showed that more than 65 per cent ·of those polled · preferred to have an operative death penalty. D. Incidently, the rejection by the people of the approach adopted , . by the two learned Judges in Furman, furnishes proof of the fact that judicial opinion does not necessarily reflect the morai attitudes . of the people. At the·same time, it'is a reminder that Judges should not take upon themselves the responsibility of becoming ·oracles or spokesmen of public opinion : Not being representatives of the-. people, it is often ·bfitter~ ~s a matter of judicial. restraint~ to· leave the'function of assessing public opinion to the chosen representatives of the people in the legislature concerned. r Coming back to the revi6w of the world crime situation, during'• the last decade, Saudi Arabia and some other countries·Mve reinsta-. · ·led death penalty or enacted harsher punishm. ents not only for murder but some other crimes, also.

In America, apart froni 32 States which . ' . •. /· reinstated death penalty under revised laws after Furman, the ·legislatures of some of the remaining I5 States . have either reinstituted or are considering to -reintroduce death penalty: Currehtly, a f~deral legislation for reinstituting or prescribing capital punishment for a · larger range of offences of homicide is under consideration of United States' Congress. According ,to the report of the Amnesty International,'. in U. S. A. , as on May I, 1979, death penalty can be imposed for aggravated murder' -in 35 States. Attempts have been made in, other countries, · nlso to reintroduce death penalty .. In Britain, in the wake of serious violent incidents of terrorism, a Bill was moved in . l'arliament to reintroduce capital punishment for murder and ··certain other offences. It was defeated by a free vote on April 19, 1979. Even so, no less than 243 Members ofParliament ·bad voted in favour of this . rneaslire.

We have noted that Israel has also recently reinstituted death penalty for certain criminal 'acts 'o( in human cruelty'. In . People's Republic Of China, a new legislation was adopted on·July l, 1979 by China's Parliament, according to Article 43 of which, death penalty . can be. imposed "for the most heinous crimes". In Argentina, the death penalty was reintroduced L in l976. · Similarly, Belgium reintroduced death penalty and increased the number of crimes ·punishable with death'. In France, in 1978 a movement in favour of abolition initiated by the French bishops failed·to change the law under which death penalty is a valid sanction for murder and certain other offences. In Japan,_death penalty is a legal sanction for 13 crimes. In Greece and Turkey, death penalty can be imposed for murder and other capital offences. In' Malaysia and the Republic of Singapore under the Drugs Act of May, 1979, misuse of drugs is also punishable with death.

Cuba introduced a new penal code in·· February 1978, which provides punishmen! of death by s