Constitutional Validity of Section 302 of the Indian Penal Code read with Section 354, (3) of the CrPC

There are three justifications traditionally advanced in support of punishment in general, namely reformation; denunciation by the community or retribution and deterrence. These are the three ends of punishment, its three penological goals, with reference to which any punishment prescribed by law must be justified.
The following decisions of the Apex Court are relevant on the issue –
(a) Jagmohan Singh vs The State Of U.P., AIR 1973 SC 947
Date of Decision – 3 October, 1972
Bench – S Sikri, D Palekar, I Dua, M Beg, A Ray
Contentions of the appellant (Jagmohan Singh)
  • Freedom to live is basic to all the several freedoms and since the enjoyment of those seven freedoms is impossible without conceding freedom to live, the latter cannot be denied by any law unless such law is reasonable and is required in general public interest. It was, therefore, contended that unless it was shown that the sentence of death for murder passed the test of reasonableness and general public interest, it would not be a valid law.
  • By providing in Section 302 IPC that one found guilty thereunder is liable to be punished either with death sentence or imprisonment for life, die legislature has abdicated its essential function is not providing by legislative standards in what cases the Judge should sentence the accused to death and in what cases he should sentence him only to life imprisonment.
  • Uncontrolled and unguided discretion in the judges to impose capital punishment or imprisonment for life was hit by Article 14 of the Constitution.

Observations of the Court 

  • The policy of the law in giving a very wide discretion in the matter of punishment to the Judge has its origin in the impossibility of laying down standards. (Para 25)
  • The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. That discretion in the matter of sentence is, as already pointed out, liable to be corrected by superior courts. Laying down of standards to the limited extent possible as was done in the Model Judicial Code would not serve the purpose. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused. (Para 27)

Decision of the Court

The death sentence imposed after trial in accordance with the procedure established by law is not unconstitutional under Article 21. (Para 30)

(b) Bachan Singh, Sher Singh And Anr. vs State Of Punjab And Ors. , AIR 1982 SC 1325
Date of Decision – 16 August, 1982
Bench –  P Bhagwati
Contention of the Petitioner
The imposition of death penalty under Section 302 of the Indian Penal Code read with Section 354 Sub-section (3) of the CrPC was arbitrary and unreasonable –
  • firstly because it was cruel and inhuman, disproportionate and excessive,
  • secondly, because it was totally unnecessary and did not serve any social purpose or advance any constitutional value and lastly because the discretion conferred on the court to award death penalty was not guided by any policy or principle laid down by the legislature but was wholly arbitrary.
Contention of the Respondents
  • 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. and it could not, therefore, be allowed to be reagitated before this Bench consisting of the same number of Judges. The Bench 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 it.
  • Death penalty is –

(i) neither cruel nor inhuman, neither disproportionate nor excessive,

(ii) does serve a social purpose inasmuch as it fulfils two penological goals namely, denunciation the community and deterrence and lastly, that the judicial discretion in awarding death penalty is not arbitrary and the court can always evolve standards or norms for the purpose of guiding the exercise of its discretion in this punitive area.

Decision of the Court
The first requirement that there should be a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence is met by the enactment of Section 235 Sub-section (2), but the second requirement that the sentencing authority should be provided with standards to guide its use of the information is not satisfied and the imposition of death penalty under Section 302 of the Indian Penal Code read with Section 354 Sub-section (3) of the CrPC, 1973 must, therefore, be held to be arbitrary and capricious and hence violative of Articles 14 and 21. (Para 76)
Observations of the Court
  • It must be realised that the question of constitutional validity of death penalty, is not just a simple question of application of constitutional standards by adopting a mechanistic approach. It is a difficult problem of constitutional interpretation to which it is not possible to give an objectively correct legal answer. It is not a mere legalistic problem which can be answered definitively by the application of logical reasoning but it is a problem which raises profound social and moral issues and the answer must therefore necessarily depend on the judicial philosophy of the Judge, This would be so in case of any problem of constitutional interpretation but much more so would it be in a case like the present where the constitutional conundrum is enmeshed in complex social and moral issues defying a formalistic judicial attitude. That is the reason why in some countries like the United States and Canada where there is power of judicial review, there has been judicial disagreement on the constitutionality of death penalty. (Para 3)
  • Constitutional law raises, in a legal context, problems of economic, social, moral and political theory and practice to which non-lawyers have much to contribute. Non-lawyers have not reached unanimity on the answers to the problems posed; nor will they ever do so. But when judges are confronted by issues to which there is no legal answer, there is no reason (other than a desire to maintain a fiction that the law provides the answer) for judicial discretion to be exercised in a vacuum, immune from non-legal learning and extra-legal dispute. ‘The Judges must also consider while deciding an issue of constitutional adjudication as to what would be the moral, social and economic consequences of a decision either way.
  • The only answer which can be given for justifying this infliction of mental and physical pain and suffering is that the condemned prisoner having killed a human being does not merit any sympathy and must suffer this punishment because he ‘deserves’ it. No mercy can be shown to one who did not show any mercy to others. But, as I shall presently point out, this justificatory reason cannot commend itself to any civilised society because it is based on the theory of retribution or retaliation and at the bottom of it lies the desire of the society to avenge itself against the wrong doer. That is not a permissible penological goal. (Para 28)
  • Death penalty cannot be said to be proportionate to the offence merely because it may be or is believed to be an effective deterrent against the commission of the offence. (Para 36)
  • The evidence on whether the threat of death penalty has a deterrent effect beyond the threat of life sentence is therefore overwhelmingly on one side. Whatever be the measurement yardstick adopted and howsoever sharpened may be the analytical instruments, they have not been able to discover any special deterrent effect. (Para 58)
  • It is obvious on a plain reading of Section 302 of the Indian Penal Code which provides death penalty as alternative punishment for murder that it leaves it entirely to the discretion of the Court whether to impose death sentence or to award only life imprisonment to an accused convicted of the offence of murder. This section does not lay down any standards or principles to guide the discretion of the court in the matter of imposition of death penalty. The critical choice between physical liquidation and life Jong incarceration is left to the discretion of the court and no legislative light is shed as to how this deadly discretion is to be exercised. (Para 65)
  • On an analysis of decisions given over a period of years we find that in fact there is no uniform pattern of judicial behaviour in the imposition of death penalty and the judicial practice does not disclose any coherent guidelines for the award of capital punishment. The Judges have been awarding death penalty or refusing to award it according to their own scale of values and social philosophy and it is not possible to discern any consistent approach to the problem in the judicial decisions. It is apparent from a study of the judicial decisions that some Judges are readily and regularly inclined to sustain death sentences, other are similarly disinclined and the remaining waver from case to case. Even in the Supreme Court there are divergent attitudes and opinions in regard to the imposition of capital punishment. (Para 66)

Author’s Comments

The cases discussed above difference in the approach adopted by the Constitutional Bench and Single Bench of the Apex Court. Since the decision of the Constitutional Bench overrides the decision of a smaller Bench, Jagmohan case is still a law.

Section 302, IPC is constitutionally valid as per the 1972 judgment.

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Bhumika Sharma

She is currently a Research Scholar, (PhD) at Himachal Pradesh University, Shimla. She finds peace in research and writing on a variety of social issues. She believes in the power of education and awareness to deal with various problems.

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