BACHAN SINGH MAL SINGH SUNIL BATRA NATHU SINGH KARTAR SINGH AND UJAGAR SINGH SHER SINGH SUNIL BATRA MAL SINGH NIRPAL SINGH JAGMOHAN SINGH UJAGAR SINGH Vs. STATE OF PUNJAB:UNION OF INDIA:DELHI ADMINISTRATION:STATE OF PUNJAB:DELHI ADMINISTRATION:STATE OF HARYANA:STATE OF PUNJAB

JUDGEMENT

(1.) THESE writ petitions challenge the constitutional validity of S . 302 of the Penal Code read with S. 354, sub-sec. (3) of the Criminal P.C. in so far as it provides death sentence as an alternative punishment for the offence of murder. There are several grounds on which the constitutional validity of the death penalty provided in S. 302 of the Penal Code read with Section 354 sub-and (3) of the Criminal P. C. is assailed before us. but it is not necessary to set them out at this stage, for I propose to deal with them when I examine the arguments advanced on behalf of the parties. Suffice it to state for the present that I find considerable force in some of these grounds and in my view, the constitutional validity of The death penalty provided as an alternative punishment in S. 302 of the Indian Penal Code read with S. 354 sub-sec. (3) of the Code, of Criminal Procedure cannot be sustained. I am conscious that my learned brethren on the Bench who constitute the majority have taken a different view and upheld the constitutional validity of the death penalty but, with the greatest respect to them and in all humility, I cannot persuade myself to concur with the view taken by them. Mine is unfortunately a solitary dissent and it is therefore with a certain amount of hesitation that I speak but my initial diffidence is overcome by my deep and abiding faith in the dignity of man and worth of the human person and passionate conviction about the true spiritual nature and dimension of man. I agree with Bernard Shaw that "Criminals do not die by the hands of the law. They die by, the hands of other men. Assassination on the scaffold is the worst form of assassination because there it is invested with the approval of the society... Murder and capital punishment are not opposites that cancel one another but similars that breed their kind." It was the Father ad the Nation who said years ago, reaffirming what Prince Satyavan said on capital punishment in Shanti Parva of Mahabharata that "Destruction of individuals can never be a virtuous act" and this sentiment has been echoed by many eminent men such as Leonardo Da Vinci, John Bright, Victor Hugo and Berdyaev. To quote again from Bernard Shaw from Act IV of his play "Caesar and Cleopatra" :

(2.) BEFORE I proceed to consider the various constitutional issues arising our of the challenge to the validity of the death penalty, I must deal with a preliminary objection raised an behalf of the respondents against our competence to entertain this challenge. The learned counsel appearing on behalf of the respondents urged that the question of constitutional validity of the death penalty stood concluded against the petitioners by the decision of a constitution bench of five Judges of this Court in Jagmohan v. State of U. P., AIR 1973 SC 947 and it could not therefore be allowed to be reagitated before this Bench consisting of the same number of Judges. This Bench, contended the respondents, was bound by the decision in Jagmohan's case (supra) and the same issue, once decided in Jagmohan's case (supra), could not be raised again and reconsidered by this Bench. Now it is true that the question of constitutional validity of death penalty was raised in Jagmohan's case (supra) and this Court by a unanimous judgment held it to be constitutionally valid and, therefore, ordinarily, on the principle of stare decisis, we would hold ourselves bound by the view taken in that case and resist any attempt at reconsideration of the same issue. But there are several weighty considerations which compel us to depart from this precedential rule in the present case. It may be pointed out that the rule of adherence to precedence is not a rigid and inflexible rule of law but it is a rule of practice adopted by the courts for the purpose of ensuring uniformity and stability in the law. Otherwise, every Judge will decide an issue according to his own view and lay down a rule according to his own perception and there will be no certainty and predictability in the law, leading to chaos and confusion and in the process, destroying the rule of law. The labour of the Judges would also, as pointed out by Cardozo, J. in his lecture's on "Nature of Judicial Process" increase "almost to the breaking point if every past decision could be reopened in every case and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him." But this rule of adherence to precedents, though a necessary tool in what Maitland called "the legal smithy", is only a useful servant and cannot be allowed to turn into a tyrannous master. We would do well to recall what Branches J. said in his dissenting judgment in State of Washington v. Dawson and Company (1923) 264 US 219 : 68 L. ed 2d 646 namely; "Stare decisis is ordinarily a wise rule of action. But it is not a universal and inexorable command." If the rule of stare decisis were followed blindly 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. That is why Cardozo pointed out in his New York State Bar Address :

(3.) IT is significant to note that the United Nations has also taken great interest in the abolition of capital punishment. In the Charter of the United Nations signed in 1945, the founding States emphasized the value of individual's life, stating their will to "achieve international co-operation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex. language or religion". Though the San Francisco Conference did not address itself to the issue of death penalty specifically, the provisions of the charter paved the way for further action by United Nations bodies in the field of human rights, by establishing a Commission on Human Rights and in effect charged that body with formulating an International Bill of Human Rights. Meanwhile the Universal Declaration of Human Rights was adopted by the General Assembly in its Resolution 217-A (III) of 10/12/1948. Arts. 3 and 5 of the Declaration provided: