Deena Alias Deen Dayal And Others v. Union Of India And Others

materials and opinions relied on

Agent of Death (New York: Dulton, 1940) by Robert G. Elliott.

(Para 75)

All India Institute of Medical Sciences, New Delhi, Opinion of Dr Chandrakant, Lecturer in Deptt. of Forensic Medicine as intervener.

(Para 55)

Capital Punishment, published under the auspices of U.N, Deptt. of Economic and Social Affairs. New York, 1962, Paras 57 and 59.

(Para 59)

Director General of Health Services' Opinion.

(Para 50)

History of Capital Punishment (Torchstream Books, London) by George R. Scott, p. 211.

(Para 56)

Kenny's Outlines of Criminal Law (19th Edn., 1966), Ed. by J.W Cecil Turner, p. 618, footnote 5.

(Para 55)

Law Commission of India's 35th Report on Capital Punishment, 1967, paras 1097 to 1150.

(Paras 51 to 53)

National Association of Critical Medicine (India), New Delhi, Dr N.P Singh's opinion.

(Para 81)

New Horizons in Criminology (3rd Edn., 1966) by Harry Elmer Barmes and Negley K. Teeters.

(Paras 58 and 75)

New York Worlds, Nov. 17, 1929, statement of Nicola Tesla.

(Para 74)

Prison Adviser to National Institute of Social Defence, Opinion submitted to Ministry of Home Affairs in 1978.

(Para 54)

Royal Commission's Report, 1953, paras 700 to 734.

(Paras 38 to 73, 77 and 80)

‘San Quentin Story’ (New York: Doubleday, 1950) and series of articles ‘San Quentin is My Home’, Saturday Evening Post, March 25, May 13, 1950.

(Para 80)

Time Magazine, dated January 24, 1983, article ‘An Eye for an Eye’.

(Paras 59 and 74)

Criminal Procedure Code, 1973 — Section 354(5) — Execution of death sentence on the command of a judicial verdict not interdicted by Article 21

Constitution of India — Article 21 — Does not ban execution of death sentence but only Interdicts execution in a cruel, barbarous and degrading manner

It is contended that it is inhuman to kill under any circumstances, even under a judgment of a court and, therefore, no death sentence can be executed at all by means fair or foul, and that the fact that the method prescribed by law for executing the death sentence is humane makes no difference for, Article 21 imposes a total prohibition on the taking of human life, which would include the execution of death sentence.

Held :

It is impossible to accept the petitioners' contention.

(Paras 89 and 91)

Article 21 has as much relevance on the passing of a sentence, as on the manner of executing it and therefore, a twofold consideration has to be kept in mind in the area of sentencing. Substantively, the sentence has to meet the constitutional prescription contained, especially, in Articles 14 and 21. Procedurally, the method by which the sentence is required by law to be executed has to meet the mandate of Article 21, which is not that the death sentence shall not be executed but that it shall not be executed in a cruel, barbarous or degrading manner.

(Para 89)

When Bachan Singh case has declared it to be lawful to execute death sentence in appropriate cases, it would be lawful to execute that sentence in an appropriate manner, unaccompanied by torture or degradation of any kind. It is not unlawful in the abstract and in the absolute, to execute a lawful order.

(Paras 89 and 91)

The argument, if carried to its logical conclusion will make it impossible to execute any sentence whatsoever, particularly of imprisonment, because every sentence of imprisonment necessarily involves pain and suffering to a lesser or greater degree. A Constitution so carefully conceived as ours cannot be construed to produce such a startling result.

(Para 90)

No sustenance can be derived from the Eighth Amendment to the United States Constitution.

(Paras 92 to 96)

O'Neil v. Vermont, 144 US 323, 339-40 (1892); Trop v. Dulles, 356 US 86, 101, 124-27 : 2 LEd 2d 630 : 78 S Ct 590 (1958); Louisiana ex rel. Francis v. Resweber, 329 US 459 : 91 LEd 422 : 67 S Ct 374 (1947) and American Sash & Door Co. case, 335 US 538, 556 (1949), referred to

Machhi Singh v. State of Punjab, (1983) 3 SCC 470 : 1983 SCC (Cri) 681, explained

Death Penalties by Raoul Berger (Harvard University Press, Edn. 1982, p. 112), referred to

Constitution of India — Articles 32 & 13 and 21, 19 & 14 — Burden of proof — Where violation of Articles 19 and 21 is alleged burden lies on the State to establish constitutionality of the impugned provision but where violation of Article 14 is alleged burden is on the petitioner to establish his case — Evidence Act, 1872, Sections 101 and 102

Criminal Procedure Code, 1973 — Section 354(5) — Where validity of challenged on ground of violation of Article 21, held, burden lies on State to prove that the procedure for execution of death sentence provided therein is constitutional being just, fair and reasonable — Constitution of India, Article 21

Held :

Per Chandrachud, C.J and Pathak, J.

When in a matter arising under Article 21, the person aggrieved is found to have been totally deprived of his personal liberty or is being deprived of his right to life, the burden of proving that the procedure established by law for such deprivation is just, fair and reasonable lies heavily upon the State.

(Paras 22 and 29)

Bachan Singh v. State of Punjab, (1983) 1 SCR 145 : (1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636 [majority judgment], explained and relied on

Section 354(5), on the face of it, provides for a procedure for extinguishing life. Therefore, not even the initial obligation to show the fact of deprivation of life or liberty rests on the petitioners. The State must establish that the procedure prescribed by Section 354(5) for executing the death sentence is just, fair and reasonable. That burden includes the obligation to prove that the said procedure is not harsh, cruel or degrading.

(Para 30)

The question as to on whom the burden of proof lies would depend upon the particular fundamental right of the petitioner alleged to have been violated, by the impugned provision and same rule of burden of proof will not apply to all constitutional challenges. As regards the cases arising under Article 14, the questions whether there are other persons who are situated similarly as the petitioner and whether the petitioner is subjected to hostile discrimination are questions of fact and therefore, the burden to establish the existence of these facts rests on the petitioner. To cast the burden of proof in such cases on the State is really to ask it to prove the negative that no other persons are situated similarly as the petitioner and that, the treatment meted out to the petitioner is not hostile. But as regards the cases arising under Articles 19 and 21 once the petitioner shows violation of any or both of those Articles, which really is not a part of the ‘burden of proof’, or when the violation is apparent, it is for the State to justify the impugned law or action.

(Paras 16 to 30)

Dissenting view of Bhagwati, J. in Bachan Singh case, (1982) 3 SCC 24 : 1982 SCC (Cri) 535 : AIR 1982 SC 1325, affirmed

Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, (1971) 2 SCR 711 : (1970) 3 SCC 746 : AIR 1971 SC 2486 : 1971 Cri LJ 1721; Ram Krishna Dalmia v. Justice S.R Tendolkar, 1959 SCR 279 : AIR 1958 SC 538 : 1959 SCJ 147; Pathumma v. State of Kerala, (1978) 2 SCR 537 : (1978) 2 SCC 1 : AIR 1978 SC 771 and Mohd. Hanif Quareshi v. State of Bihar, 1959 SCR 629 : AIR 1958 SC 731 : 1958 SCJ 975, limited and distinguished

B. Banerjee v. Anita Pan, (1975) 2 SCR 774 : (1975) 1 SCC 166 : AIR 1975 SC 1146, doubted and overruled on this point

Saghir Ahmad v. State of U.P, (1955) 1 SCR 707 : AIR 1954 SC 728 : 1954 SCJ 819; Khyerbari Tea Co. Ltd. v. State of Assam, (1964) 5 SCR 975 : AIR 1964 SC 925, followed

Mohd. Faruk v. State of M.P, (1970) 1 SCR 156 : (1969) 1 SCC 853 : AIR 1970 SC 93 and Laxmi Khandsari v. State of U.P, (1981) 3 SCR 92 : (1981) 2 SCC 600 : AIR 1981 SC 873, followed

Western U.P Electric Power & Supply Co. Ltd. v. State of U.P, (1969) 3 SCR 865, 870 : (1969) 1 SCC 817, 821 : AIR 1970 SC 21, relied on

Per Mukharji, J.

As soon as it is shown that a Statute or Act in question invades a right guaranteed by Article 21, it is necessary to enquire whether the State has proved that the person has been deprived of his life or personal liberty according to procedure established by law. But on the question whether the State has a further initial burden to prove that the procedure established by law is just fair and reasonable, no opinion need be expressed.

(Para 98)

Constitution of India — Articles 32, 226 & 13 — Scope of judicial review — Constitutionality of a procedural provision, such as one prescribing method of execution of death sentence, open to judicial review — Court can make comparative assessment of other methods or procedures for that purpose — But court cannot resort to judicial legislation by prescribing an alternative procedure or method

Criminal Procedure Code, 1973 — Section 354(5) — Constitutionality of, open to judicial review

Held :

Matters of policy are certainly for the legislature to consider. But the function of the legislature ends with providing what it considers to be the best method of executing the death sentence. And where the function of the legislature ends the function of the judiciary begins. It is for the courts to decide upon the constitutionality of the method prescribed by the legislature for implementing or executing a sentence. Whether that method conforms to the dictates of the Constitution is a matter not only subject to judicial review but it constitutes a legitimate part of the judicial function. The decision of that question inevitably involves a value judgment based upon a comparative evaluation of alternate methods for executing the death sentence, for, an understanding of the process involved in the competing methods used for executing the death sentence and their comparative assessment is not altogether pointless. The Court's task will end with pointing out why, if at all, the method at present provided by law is contrary to the mandate of the Constitution, even if it be less objectionable than any other commonly accepted method of executing the death sentence. To pronounce upon the constitutionality of a law is not legislating, even if such pronouncement involves the consideration of the evolving standards of the society. But it will be legislating if the court directs that since, if at all, the provision contained in Section 354(5) is unconstitutional, the death sentence imposed upon the petitioners should be executed by the method of electrocution or gas-chamber or lethal injection or shooting or guillotine and the like.

(Paras 35 and 72)

Judges ought not to assume that they are endowed with a divine insight into the needs of society.

(Para 96)

Gregg v. Georgia, 49 LEd 2d 859 : 428 US 153 : 96 S Ct 2621 (1976) and American Sash & Door Co. case, 335 US 538, 556 (1949), referred to

Constitution of India — Articles 32 & 136 — Practice — Pleadings — Technicalities cannot be allowed to defeat justice — Arguments before court should ordinarily be confined to the averments made in the petitions — But where important question is involved, such as constitutionality of method of execution of death sentence under Section 354(5) CrPC, court can allow arguments beyond the scope of the averments without asking the petitioner to amend his petition — Practice and Procedure

(Para 62)

Evidence Act, 1872 — Section 101 — Where the entire material is before the court, question of burden of proof looses its significance but court all the same must consider if the party on which the onus lies had discharged its burden

Held :

The question of burden of proof ceases to have the same importance when the entire evidence is before the Court, each side having placed before it such material as it considers necessary to support its case. But then, the fact that parties have produced their respective data before the court does not absolve the court from considering the question whether, on the basis of the entire material before it, the burden can be said to have been discharged by the party on whom it lies.

(Para 11)

Jurisprudence — ‘Law’ is a dynamic concept and must adapt with the changing social norms and scientific advancements

Law is a dynamic science, the social utility of which consists in its ability to keep abreast of the emerging trends in social and scientific advance and its willingness to readjust its postulates in order to accommodate those trends. Life is not static. The purpose of law is to serve the needs of life. Therefore, law cannot be static.

(Para 4)

Constitution of India — Articles 141, 32 & 136 — After an elaborate and full debate before the Supreme Court, a question must be treated as settled and not open for reconsideration soon thereafter — That would not preclude the Supreme Court from entertaining any incidental question which was not then directly and substantially in issue (though commented upon) — Practice

(Paras 4 and 9)

Constitution of India — Articles 32 & 226 — Court must consider the constitutional question raised in the petition uninfluenced by the reproachable actions of the petitioner

(Para 10)

Constitution of India — Article 141 — Precedent — Ratio of a case can be extended to other identical situations, factual and legal, but not mechanically disregarding the rationale of that case

(Paras 15 and 23)

Interpretation of Statutes — External aids — Opinions expressed in books, reports of commissions, prestigious journals or magazines and expert opinions relied upon

(Paras 38 to 60)

R-M/6338.CR