Case Summary: Bachan Singh v State of Punjab (1980)

This case summary attempts to analyse the landmark judgement of the Supreme Court in the case of Bachan Singh v State of Punjab reported in (1980) 2 SCC 684 regarding the constitutionality of the death penalty as a form of punishment, the principle laid down in the case and its relevance in the present society.

I. Introduction

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

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

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

“Having regard to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of the abolition of capital punishment.” [1]

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

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

II. Facts of the Case

The appellant Bachan Singh was tried and convicted and sentenced to death under Section 302 of the Indian Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai by the Sessions Judge.

The High Court had confirmed his death sentence and dismissed his appeal. In turn, he appealed to the Supreme Court by special leave petition under Article 136 of the Constitution and the question raised in the appeal was, whether the facts of his case were “special reasons” for awarding him the death sentence as required in Section 354(3) of Code of Criminal Procedure, 1973.

• Issues involved

1. Whether the death penalty provided for the offence of murder in Section 302, Penal Code is unconstitutional?
2. Whether the sentencing procedure provided in Section 354(3) of the CrPC, 1973 is unconstitutional on the ground that it invests the Court with unguided discretion?

III. Main Arguments Advanced by the Petitioner

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

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

IV. The Judgement of the Court

The Supreme Court with 4:1 majority dismissed the challenges pertaining to the constitutionality of Sec 302 of IPC and 354(3) of CrPC. The court said that the six fundamental rights guaranteed under Art 19(1) are not absolute rights. These rights are subjected to inherent restraints stemming from the reciprocal obligation of one member of civil society to so use his rights as not to infringe or injure similar rights of another. It was held that Section 302 is not violative both Art 19 and 21 of the Constitution.

It was further held that Section 354 (3) of CrPC was not unconstitutional and that the expression “special reason” in the section means “exceptional reasons” founded in the exceptionally grave circumstances of a particular case relating to the crime as well as the criminal. The apex court laid down the principle of “rarest of the rare cases” in awarding the death penalty. It was reaffirmed that for those convicted for murder, life imprisonment is the rule and death sentence is an exception.

V. Analysis of the Decision

• On the 1^st issue

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

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

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

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

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

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

• On the 2^nd issue

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

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

This marks a significant shift in the legislative policy from the earlier Code [4] which in force immediately before April 1, 1974, according to which both the alternative sentences of death or imprisonment for life provided for murder and for certain other capital offences under the Penal Code, were normal sentences. As per S. 354(3), life imprisonment is the rule and death penalty, the exception.

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

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

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

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

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

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

• Dissenting Judgement

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

VI. Conclusion

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

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References

[1] 35^th report of Law Commission of India.

[2] AIR 1980 SC 898

[3] AIR 1973 SC 947

[4] Criminal Procedure Code, 1898

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