Justice Y. Chandrachud, Justice A. Gupta, Justice N. Untwalia, Justice P.N. Bhagwati, Justice R. Sarkaria
The Supreme Court upheld the constitutional validity of death penalty for murder in Section 302, Indian Penal Code, 1860 and the procedure in Section 354(3), Code of Criminal Procedure, 1973 while dismissing the challenges pertaining to the span>constitutionality of the above provisions. The apex court further clarified that the six fundamental rights guaranteed under Article 19(1) are not absolute rights and are subject to reasonable restrictions imposed by the State on the exercise of rights of citizens. As such these rights are subject to inherent constraints stemming from the reciprocal obligation of one member to use his rights so as to not to injure similar rights of another member in a civil society. Those convicted of the offense of murder, life imprisonment is the rule while death sentence is an exception. The expression ‘‘special reasons’’ in Section 354(3) of Cr.P.C. means ‘‘exceptional reasons’’ founded on the exceptionally grave circumstances of the particular case related to crime as well as the criminal. The Court in this case laid down the principle of ‘‘rarest of rare cases’’ in awarding the death penalty or capital punishment in India.
The right to life is not one of the rights mentioned in Article 19 (1) of the Constitution and the six fundamental freedoms guaranteed under Article 19(1) are not absolute rights. The condition precedent for the applicability of Article 19 is that the activity which the impugned law prohibits and penalizes, must be within the purview of and protection of Article 19 (1). There are several offences under the Penal Code, such as, theft, cheating, ordinary assault, which do not violate or affect "public order", but only "law and order". These offences injure only specific individuals as distinguished from the public at large. It is now settled that "public order" means "even tempo of the life of the community". That being so, even all murders do not disturb or affect "public order". Some murders may be of purely private significance and the injury or harm resulting therefrom affects only specific individuals, and, consequently, such murders may not be covered by "public order" within the contemplation of clauses (2), (3) and (4) of Article 19. o:p>
The procedure provided in Criminal Procedure Code for imposing capital punishment for murder and some other capital crimes under the Penal Code cannot, by any reckoning, be said to be unfair, unreasonable or unjust. Nor can it be said that this sentencing discretion, with which the Courts are invested, amounts to delegation of its power of legislation by Parliament. The impugned provisions do not violate Articles 14, 19 and 21 of the Constitution.
It cannot be said that the provision of death penalty as an alternative punishment for murder in Section 302, Penal Code, is unreasonable and not in public interest. Therefore, the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19.
As we read Sections 354(3) and 235(2) and other related provisions of the Code & of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case.