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CAPITAL PUNISHMENT-ART 21

PJANARDHANA REDDY ,
  24 October 2009       Share Bookmark

Court :
SC
Brief :
Constitution of India, 1950: Article 32--Writ petition by wife of condemned prisoner---Capital punishment-- Justification of--Hanging by neck--Scientific and less painful. Constitution of India, 1950:Article 21 ---Death penalty--- Awarding--Not unconstitutional.
Citation :
-

PETITIONER:
SMT. SHASHI NAYAR

Vs.

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT29/10/1991

BENCH:

SINGH, K.N. (J)
BENCH:
SINGH, K.N. (J)
SAWANT, P.B.
KASLIWAL, N.M. (J)
JEEVAN REDDY, B.P. (J)
RAY, G.N. (J)
CITATION:
1992 AIR 395 1991 SCR Supl. (2) 103
1992 SCC (1) 96 JT 1991 (4) 196
1991 SCALE (2)919
ACT:
Constitution of India, 1950: Article 32--Writ petition
by wife of condemned prisoner---Capital punishment-- Justification
of--Hanging by neck--Scientific and less painful.
Constitution of India, 1950:Article 21 ---Death penalty---
Awarding--Not unconstitutional.
HEADNOTE:
The petitioner’s husband was tried under Section 302,
IPC for having killed his father and step brother.
The Sessions Judge convicted awarding sentence of death.
On appeal, the High Court confirmed the death penalty
against which a special leave petition before this Court was
filed and same was also dismissed.
The Review Petition filed by him was also dismissed.
His mercy petitions filed before the Governor of Jammu &
Kashmir and the President of India, were rejected. He challenged
the order of the President of india rejecting the
mercy petition before this Court in a writ petition under
Article 32 of the Constitution, which was also dismissed.
Another writ petition under Article 226 of the Constitution
was filed before the Jammu & Kashmir High Court for
quashing the sentence imposed on him. The High Court dismissed
the same.
The husband of this petitioner, the condemned prisoner,
was to be hanged on 26.10.1991.
The petitioner, filed the present petition under Article
32 of the Constitution challenging the validity of the
capital punishment
104
with a prayer for the quashing of the sentence awarded to
her husband.
The petition was entertained by a Division Bench on
25.10.91 and the matter was referred to the Constitution
Bench for consideration staying the execution of the condemned
prisoner.
Petitioner contended that capital punishment was
violative of Article 21 of the Constitution of India as the

Article absolutely prohibits deprivation of a person’s life;
that capital punishment did not serve any social purpose and
the barbaric penalty of death should not be awarded to any
person as it had no deterrent effect; that the penalty of
death sentence had a dehumanising effect on the close relations
of the victims and it deprived them of their fundamental
rights under Article 21 of the Constitution, to a meaningful
life; that the execution of capital punishment by
hanging was barbaric and dehumanising and it should be
substituted by some other decent and less painful method in
executing the sentence.
Dismissing the petition, this Court,
HELD: 1. The capital punishment as provided by the law
is to be awarded in rarest of the rare cases. The procedure
established by law for awarding the death penalty is reasonable
and it does not in any way violate the mandate of
Article 21 of the Constitution. Hanging by neck was a scientific
and one of the least painful methods of execution of
the death sentence. [106 G, 107 F]
2. The death penalty has a deterrent effect and it does
serve a social purpose, having regard to the social conditions
in our country the stage was not ripe for taking a
risk of abolishing it. [107 C-D]
3. A judicial notice can be taken of the fact that the
law and order situation in the country has not only not
improvided since 1967 but has deteriorated over the years
and is fast worsening today. The present is, therefore, the
most inopportune time to reconsider the law on the subject.
[107 E]
Jagmohan Singh v. State of U.P.,[1973] 1 SCC 20; Bachan
Singh v. State of Punjab, [1979] 3 SCC 727; Deena alias Deen
Dayal & Ors. etc. etc. v. Union of India & Ors. etc. etc.,
[1983] 4 SCC 645, referred to.
105
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition(Criminal)No. 1339 of
1991.
(Under Article 32 of the Constitution of India).
R.K: Jain, A. Mariarputham, Ms. Aruna Mathut, Udai
Lalit, Shankar C. Ghosh and Ms. Chanchal Ganguli for the
Petitioner.
The Judgment of the Court was delivered by
K.N. SINGH, J. Smt. Shashi Nayar wife of Raj Gopal Nayar
who has been awarded death sentence for offence under Section
302 of the Indian Penal Code [’IPC’ for short] has
approached this Court by means of this petition under Article
32 of the Constitution challenging the constitutional
validity of death penalty.
Raj Goapal Nayar, the petitioner’s husband was tried for
offence under Section 302, IPC for having killed his father
and step brother. The Sessions Judge by his judgment and
order dated 24.4.1986 convicted Raj Gopal Nayar and awarded
sentence of death. On appeal, the High Court confirmed the
death penalty and dismissed Raj Gopal’s appeal against the
order of the Sessions Judge. Raj Gopal thereafter filed a
special leave petition before this Court challenging the
judgment and order of the Sessions Judge and the High Court,
but the special leave petition was also dismissed by this
Court. Review petition filed by him was also dismissed.
Consequently, his conviction and the sentence of death stood
confirmed by all the courts. Thereupon, he filed mercy
petitions before the Governor of Jammu & Kashmir and the

President of India, but the same were rejected. ’He challenged
the order of the President of India rejecting the
mercy petition before this Court by means of a writ petition
under Article 32 of the Constitution, but the same was also
dismissed. Another writ petition under Article 226 of the
Constitution was filed before the Jammu & Kashmir High Court
for quashing the sentence imposed on him but the same was
also rejected. As the legal proceedings before the court
failed, he was to be hanged on 26.10.1991. Smt. Shashi
Nayar, the petitioner, thereupon filed the present petition
under Article 32 of the Constitution before this Court
challenging the validity of the capital punishment with a
prayer for the quashing of the sentence awarded to Raj Gopal
Nayar. The petition was entertained by a Division Bench on
25.10.1991 and the matter was referred to the Constitution
Bench for consideration, and meanwhile the execution of the
condemned prisoner was stayed.
Mr. Ravi K. jain, learned counsel for the petitioner
made the following submissions:
106
(1) Capital punishment is violative of
Article 21 of the Constitution of India as the
Article absolutely prohibits deprivation of a
person’s life.
(2) Capital punishment does not serve any
social purpose and in the absence of any
study, the barbaric penalty of death should
not be awarded to any person as it has no
deterrent effect.
(3) The penalty of death sentence has a
dehumanising effect on the close relations of
the victims and it deprives them of their
fundamental rights under Article 21 of the
Constitution, to a meaningful life.
(4) The execution of capital punishment by
hanging is barbaric and dehumanising. This
should be substituted by d some other decent
and less painful method in executing the
sentence.
The questions raised by Shri Jain have already been considered
by this Court in detail on more than one occasion. In
Jagmohan Singh v. State of U.P.,[1973] 1 SCC 20 and in
Bachan Singh v. State of Punjab, [1979] 3 SCC 727, this
Court has on a detailed consideration, held that the capital
punishment does not violate Article 21 of the Constitution.
In Bachan Singh’s case (supra), the court considered all the
questions raised in this petition except question No.4, and
the majority judgment rejected the same by a detailed reasoned
order. Since we fully agree with those reasons, we do
not consider it necessary to reiterate the same.
Learned counsel further urged that the view taken in
Jagmohan Singh’s and Bachan Singh’s cases (supra) is incorrect
and it requires reconsideration by a larger Bench. He,
therefore, requested us to refer the matter to a larger
Bench as the question relates to the life of a citizen. He
urged that the award of death penalty is a serious matter as
it deprives a citizen of his life in violation of Article 21
of the Constitution and as such the court should consider
the matter again. We are fully conscious of the effect of
the award of capital punishment. But we are of the opinion
that the capital punishment as provided by the law is to be
awarded in rarest of the rare cases as held by this Court.
The procedure established by law for awarding the death
penalty is reasonable and it does not in any way violate the
mandate of Article 21 of the Constitution. Since we agree

with the view taken by the majority in Bachan Singh’s and
Jagmohan Singh’s cases (supra), we do not find any valid
ground to refer the matter to a larger Bench. Learned counsel
urged that the majority opinion in Bachan Singh’s case
(supra) was founded upon the 35th Report of the Law Commission
submitted in 1967, which summarises the recommendations
in the following words:
107
"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 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 abolition of
capital punishment."
Shri Jain urged that the above Report indicates that in
1967 the Law Commission was of the opinion that the country
should not take the risk of experimenting abolition of
capital punishment. However, since then much water has
flown. Further, there is no empirical study before the
Court to show that the situation which prevailed in 1967 is
still continuing. Hence, the Court should reconsider the
matter. We do not find any merit in this submission. The
death penalty has a deterrent effect and it does serve a
social purpose. The majority opinion in Bachan Singh’s case
(supra) held that having regard to the social conditions in
our country the stage was not ripe for taking a risk of
abolishing it. No material has been placed before us to show
that the view taken in Bachan Singh’s case(supra) requires
reconsideration. Further, a judicial notice can be taken of
the fact that the law and order situation in the country has
not only not improved since 1967 but has deteriorated over
the years and is fast worsening today. The present is,
therefore, the most in opportune time to reconsider the law
on the subject. Hence the request for referring the matter
to a larger Bench is rejected.
As regards the method of execution of the capital punishment
by hanging, this Court considered the same in detail
in Deena alias Deen Dayal & Ors. etc. etc., v. Union of
India & Ors. etc. etc., [1983] 4 SCC 645 and held that
hanging by neck was a scientific and one of the least painful
methods of execution of the death sentence. We find no
justification for taking a different view. Shri Jain, however,
brought to our notice that a learned Judge of this Court
while sitting during vacation had issued notice to the State
on the question as to whether the execution by hanging is a
cruel and unusual procedure. Hence, he urged that we should
entertain this petition and reconsider the question. Since
the question of the mode of execution of capital punishment
has already been considered in detail by this Court m Deen
Dayal’s case (supra), we do not find any good reason to take
a different view.
The question of reasonableness in the award of the
capital punishment to Raj Gopal Nayar has been considered by
the High Court and this
108
A Court at various stages and consistently it has been
answered against the prisoner. Hence the petition fails and
is accordingly dismissed. Interim relief order dated 25.10.
1991 is vacated.
V.P.R. Petition
dismissed.

109
 
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