SMT. SHASHI NAYARversusUNION OF INDIA AND ORS.

                          SMT. SHASHI NAYAR                                    A
                                   v.
                        UNION OF INDIA AND ORS.

                              OCTOBER 29, 1991

              [K.N. SINGH, P.B.SAWANT. N.M. KAS~JWAL,                          B
                 B.P.JEEVAN REDDY AND G.N.RAY, JJ.] '


          Constitution of India, 1950: Article 32-Writ petition by wife of
     condemned prisoner-Capital punishment-Justification of-Hanging by
     neck-Scientific and less painful.                                     C

          Co11Stitution ofIndia, 1950:Article 21-Death penal~warding-Not
     unconstitutional.

          The petitioner's husband was tried under Section 302, IPC for
     having killed his father and step brother.                                D

          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.                                                       E

          The Review Petition filed by him was also dismissed.

           His mercy petitions filed before the Governor of Jammu &
     Kashmir and the P·resident of India, were rejected. He challenged
~·
     the order of the President of India rejecting the mercy petition          F
     before this Court in a writ petition under. Article 32 of the Constitu-
     tion, which was a!so 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.           G

          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       H

                                      103
     104                SUPREME COURT REPORTS           (1991] SUPP. 2 S.C.R.

A   with a prayer for the quashing of the sentence awarded to her hus-
    band.

         The petition was entertained by a Division Bench on 25.10.91
    and the matter was referred to the Constitution Bench for consid-
    eration staying the execution-of the condemned prisoner.
B
          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 bad no deterrent effect; that the
c   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 capitai punishment by hanging was barbaric
    and dehumanising and it should be substituted by some other decent
    and less painful method in executing the sentence.
D
           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
E   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 meth-
    ods of execution of the death sentence. [106 G, 107 F]

          2. The death penalty. .bs.s a deterrent effect and it does serve a
F   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~DJ

         3. A judicial notice can be taken of the fact that the law and
    order situation in the country bas not. only not improvided since
    1967 but has deteriorated over the years and is fast worsening to-
G   day. The present is, therefore, the most inopportune time to recon-
    sider 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.
H
                  SHASIIlNAYAR v. U.0.1. [.K.N. SINGH, J.]               105

        ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 1339 of             A
1991.                        .

        (Under Article 32 of the Constimtion oflndia).

     R.K: Jain, A. Mariarputham, Ms. Aruna Mathur, Udai Lalit, Shankar
C. Ghosh and Ms. Chanchal Ganguli for the Petitioner.                           B
        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 3j)2 of thf
Indian Penal Code ['IPC' ·for short] has approached this Court by means
of this petition under Article 32 of the Constitution challenging the consti~   C
tutional 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. D
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 Ses-
sions 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 E
by all the courts. Thereupon, he filed mercy petitions before the Gover-
nor of Jammu & Kashmir and the President of India, but the same were
rejected. ·ue 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 F
& 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 Constitutton
before this Court challenging the validity of the capital punishment with
a prayer for the quashing of the sentence awarded to Raj Gopal Nayar. G
The petition was entertained by a Division Bench on 25.10.199Land the
matter was referred to the Constitution Bench for consideration, and mean;; .
while the execution of the condemned prisoner was stayed.

      Mr. Ravi K. jain, learned counsel for the petitioner made the follow-
ing submissions:                                                   ·            H
    106                 SUPREME COURT R:EPORTS            (1991] SUPP. 2 S.C.R.

A         (1) Capital punishment is violative of Article 21 of the Constitution
              of India as the Article absolutely· prohibits deprivation of a per-
              son'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.
B
          (3) The penalty of death sentence ha$ a dehumanising effect on the
              close relations of the victims and it deprives them of their funda-
              mental rights under Article 21 of the Constitution, to a meaning-
              ful life.   .
          (4) The execution of capital punishment by hanging is barbaric and
c             dehumanising. This should be substituted by 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.,[1913] l SCC 20 and in Bachan Singh v. State of Punjab,
D   (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 necessaty to reiterate the same.
E
          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
F citizen of his life in violation of Article 21 of the Constitution and as such
    the court should consider the matter again. Wear~ ful.ly conscious of the
    effect of the award ot 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
G violate the malldate 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 ilot find any valid ground to refer the matter to a
    larger Bench. Learned counsel urged that the majority opinion in Bachan
    Singh'i case (supra) was founded upon the 35th Report of the Law Com-
    missi9n submitted in 1967, which summarises the recommendations in the
H - foffowing words:
                  SHASIDNAYAR v. U.0.1. [K.N. SINGH, J.]                    107

             "Havin:g regard, however, to the conditions in India, to the          A
             variety of the social upbringing of its inhabitants, to the dis-
             parity 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 iri the coun-
             try at the present juncture India cannot risk the experiment of
             abolition of capital punishment."                                     B

         Shri Jain urged that the above Report i.ndicates 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 ~how that the situation which prevailed in 1967 is still continu-       C
  ing. 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)      D
  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 inop:_JOrtune time to reconsider the law
  on the subject. Hence the request for referring the matter to a larger           E
  Bench is rejected.                         ·

       As regards the method of execution of the capital punishment by
hanging, ·this Court considered the same in detail in De!na 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 justifica-          F
tion 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 enter;_
tain this petition and reconsider the question. Since the question of th_e         G
mode of execution of capital punishment has already been considered in
detail by this Court in 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 punish-
ment to Raj Gopal Nayar has been considered by the High Court and this . H
    108               SUPREME COURT REPORTS            [1991) SUPP. 2 S.C.R.

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 va.cated.                                  ,.

    V.P.R.                                                Petition dismissed.