Writ Petition (Criminal) D. No. 16039 of 2011 and Writ Petition (Criminal) No. 86 and 146 of 2011 (Under Article 32 of the Constitution of India). Case: Devender Pal Singh Bhullar Vs State of N.C.T. of Delhi. Supreme Court (India)

Case NumberWrit Petition (Criminal) D. No. 16039 of 2011 and Writ Petition (Criminal) No. 86 and 146 of 2011 (Under Article 32 of the Constitution of India)
CounselFor Appellant: K.T.S. Tulsi, Sr. Adv., Raj Kamal, Niraj Gupta, Paramjit Singh, Maheen Pradhan, Ravinder Singh, Gaurang Vardhan, Sudhakar Joshi, Nachiketa Joshi and Chaitanya Joshi, Advs. and For Respondents: H.P. Raval, ASG, Sidhartha S. Dave, Ranjana Narayan, T.A. Khan, S. Wasim A. Qadri, P.K. Dey, Harsh Parekh, Gargi Khanna, Shailender Saini,...
JudgesG.S. Singhvi and Sudhansu Jyoti Mukhopadhaya, JJ.
IssueTerrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 2, 3, 4; Bombay Public Trusts Act, 1950; Passports Act, 1967 - Section 12; Indian Penal Code, 1860 - Sections 34, 149, 302, 419, 420, 468, 471; Extradition Act, 1962 - Section 34C; Right to Information Act, 2005; Prevention of Corruption Act, 1988 - Sections 7, 13(1); Code of...
Citation2013 (5) SCALE 575, 2013 (VII) AD 29 (SC), AIR 2013 SC 1975, 2013 (2) ALT 151 (Cri), 2013 (2) KLT 353, 2013 (2) MLJ 591 (Cri), 2013 (2) RCR 647 (Criminal), 2013 (6) SCC 195, 2013 CriLJ 2888
Judgement DateApril 12, 2013
CourtSupreme Court (India)


G.S. Singhvi, J.

  1. Human life is perhaps the most precious gift of the nature, which many describe as the Almighty. This is the reason why it is argued that if you cannot give life, you do not have the right to take it. Many believe that capital punishment should not be imposed irrespective of the nature and magnitude of the crime. Others think that death penalty operates as a strong deterrent against heinous crimes and there is nothing wrong in legislative prescription of the same as one of the punishments. The debate on this issue became more intense in the second part of the 20th century and those belonging to the first school of thought succeeded in convincing the governments of about 140 countries to abolish death penalty.

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

  3. The campaign for the abolition of capital punishment led to the introduction of a Bill in the Lok Sabha in 1956 but the same was rejected on 23.11.1956. After two years, a similar resolution was introduced in the Rajya Sabha but, after considerable debate, the same was withdrawn. Another attempt was made in this regard in 1961 but the resolution moved in the Rajya Sabha was rejected in 1962. Notwithstanding these reversals, the votaries of 'no capital punishment' persisted with their demand. The Law Commission of India examined the issue from various angles and recommended that death penalty should be retained in the statute book. This is evinced from the 35th Report of the Law Commission, the relevant portions of which are extracted below:

    The issue of abolition or retention has to be decided on a balancing of the various arguments for and against retention. No single argument for abolition or retention can decide the issue. In arriving at any conclusion on the subject, the need for protecting society in general and individual human beings must be borne in mind.

    It is difficult to rule out the validity of, or the strength behind, many of the arguments for abolition nor does, the commission treat lightly the argument based on the irrevocability of the sentence of death, the need for a modern approach, the severity of capital punishment and the strong feeling shown by certain sections of public opinion in stressing deeper questions of human values.

    Having regard, however, to the conditions in India, to the 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 diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.

  4. The constitutionality of capital punishment was examined by the Constitution Bench in Jagmohan Singh v. State of U.P. (1973) 1 SCC 20. The facts of that case were that Appellant Jagmohan Singh was convicted for the murder of Chhote Singh and was sentenced to death by the trial Court. The High Court confirmed the death sentence. Before this Court, the counsel for the Appellant relied upon the judgment of the U.S. Supreme Court in Furman v. State of Georgia 408 US 238 and argued that death penalty was per se unconstitutional. this Court distinguished that judgment by observing that even though the sentence of death was set aside by a majority of 5:4, only two of the five Judges, namely, Mr. Justice Brennan and Mr. Justice Marshall were of the opinion that in view of Eighth Amendment to the American Constitution, which forbade 'cruel and unusual punishments', the imposition of death penalty was unwarranted and the opinion of the third Judge, namely, Mr. Justice Douglas could not be read as advocating total abolition of capital punishment. The Constitution Bench then observed:

    So far as we are concerned in this country, we do not have, in our constitution any provision like the Eighth Amendment nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply "the due process" clause. Indeed what is cruel and unusual may, in conceivable circumstances, be regarded as unreasonable. But when we are dealing with punishments for crimes as prescribed by law we are confronted with a serious problem. Not a few are found to hold that life imprisonment, especially, as it is understood in USA is cruel. On the other hand, capital punishment cannot be described as unusual because that kind of punishment has been with us from ancient times right up to the present day though the number of offences for which it can be imposed has continuously dwindled. The framers of our Constitution were well aware of the existence of capital punishment as a permissible punishment under the law. For example, Article 72(1)(c) provides that the President shall have power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence "in all cases where the sentence is a sentence of death". Article 72(3) further provides that "nothing in Sub-clause (c) of Clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force". The obvious reference is to Sections 401 and 402 of the Code of Criminal Procedure. Then again Entries 1 and 2 in List III of the Seventh Schedule refer to Criminal Law and Criminal Procedure. In Entry No. 1 the entry Criminal Law is extended by specifically including therein "all matters included in the Indian Penal Code at the commencement of this Constitution". All matters not only referred to offences but also punishments--one of which is the death sentence. Article 134 gives a right of appeal to the Supreme Court where the High Court reverses an order of acquittal and sentences a person to death. All these provisions clearly go to show that the Constitution-makers had recognised the death sentence as a permissible punishment and had made constitutional provisions for appeal, reprieve and the like. But more important than these provisions in the Constitution is Article 21 which provides that no person shall be deprived of his life except according to procedure established by law. The implication is very clear. Deprivation of life is constitutionally permissible if that is done according to procedure established by law. In the face of these indications of constitutional postulates it will be very difficult to hold that capital sentence was regarded per se unreasonable or not in the public interest.

    (Emphasis Supplied)

  5. The constitutional validity of Section 302 Indian Penal Code, which prescribes death as one of the punishments, was considered by the Constitution Bench in Bachan Singh v. State of Punjab (1980) 2 SCC 684. By a majority of 4:1, the Constitution Bench declared that Section 302 Indian Penal Code was constitutionally valid. Speaking for the majority, Sarkaria, J. referred to the judgments of several countries, including India, opinions of Jurists and recorded his conclusion in the following words:

    To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302 of the Indian Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the Petitioners argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelized through the people's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware--as we shall presently show they were--of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Code of Criminal Procedure and the insertion of the new Sections 235(2) and 354(3) in that Code providing for pre-sentence hearing and sentencing procedure on...

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