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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-- Justi-

fication of--Hanging by neck--Scientific and less painful.

Constitution of India, 1950:Article 21 ---Death penal-

ty---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 chal-

lenged 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 Constitu-

tion was filed before the Jammu & Kashmir High Court for

quashing the sentence imposed on him. The High Court dis-

missed 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

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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 condem-

ned prisoner.

Petitioner contended that capital punishment was

violative of Article 21 of the Constitution of India as the

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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 rela-

tions of the victims and it deprived them of their fundamen-

tal rights under Article 21 of the Constitution, to a mean-

ingful 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 reason-

able and it does not in any way violate the mandate of

Article 21 of the Constitution. Hanging by neck was a scien-

tific 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 condi-

tions 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.

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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 Sec-

tion 302 of the Indian Penal Code ['IPC' for short] has

approached this Court by means of this petition under Arti-

cle 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

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President of India, but the same were rejected. 'He chal-

lenged 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:

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(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 consid-

ered 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 rea-

soned 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 incor-

rect 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

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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 coun-

sel urged that the majority opinion in Bachan Singh's case

(supra) was founded upon the 35th Report of the Law Commis-

sion 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 coun-

try, to the vastness of its area, to the

diversity of its population and to the para-

mount 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 pun-

ishment 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 pain-

ful methods of execution of the death sentence. We find no

justification for taking a different view. Shri Jain, howev-

er, 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.

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