Dr. B.R.

Ambedkar National Law University,

Sonepat, Haryana

CASE LAW ANALYSIS:

Bachan Singh v/s State of Punjab, 1980

SUBMITED BY- SUBMITTED TO-

Rohan Verma Ms. Meenakshi Rao
Section- A (Faculty- Constitutional law)
Roll no. 2101058
Semester- V,
BA LLB (hons.)

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 ACKNOWLEDGEMENT

On completion of this project, it is my privilege to acknowledge my heartfelt gratitude and indebtedness

towards my teachers for their valuable suggestion and constructive criticism. Their precious guidance and
support kept me on the right path throughout while legally reviewing on the given movie.

I wish to express my sincere gratitude towards my teacher Ms. Meenakshi Rao for her constant support and
guidance throughout. Without her support, I would have never been able to complete this project/petition
draft. Thank you ma‟am.

Thank you.

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Introduction

Recently, a 38-year old man was convicted for killing his mother and attempting to kill his
neighbour as well. The Court considered the case to be „rarest of the rare‟ and awa rded him the
death penalty. Another man was awarded the death penalty for committing the gruesome act of
raping a minor girl and then killing her.

Capital punishment has been a topic of discourse since its inception. Would hanging the culprit
justify their actions? Would there be deterrence in society and would the number of crimes be
reduced? The answers to these questions are ambiguous.

Bachan Singh v. State of Punjab (1980) is a well-known landmark judgment credited for
developing the jurisprudence pertaining to the death penalty. It examined whether the death
penalty was in consonance with the provisions of the Indian Constitution.

The main issue that was addressed in this case was whether the procedure prescribed under
Section 354(3) of Code of Criminal Procedure,1973 pertaining to sentencing the culprit is
unconstitutional. The courts are vested with unguided discretion and it is completely up to them
to ascertain whether the death penalty should be imposed or not.

This case has been widely regarded as a landmark judgment given by a bench consisting of 5
judges and is known for establishing the “rarest of the rare” doctrine applicable while
determining whether the death penalty is to be awarded to the accused.

We need to address the question that whether 40 years after the judgment, the court successfully
created a coherent basis for imposing the death penalty in India.

Death penalty in India

In India, the death penalty is imposed in case of murder, gang robbery coupled with murder,
abetting the suicide of an insane person a minor, abetting mutiny by a member of the armed
forces, and waging war against the government. Capital punishment is also awarded under anti-
terror laws for those having a significant involvement in committing terrorist acts.

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The general approach of the courts is to award the death penalty to the convicts in a murder case.
As per the facts and circumstances of the case, it is scrutinized whether the case would fall under
the ambit of „rarest of the rare‟ cases.

Section 354(3) of the Code of Criminal Procedure

Section 354 of the Code of Criminal Procedure (CrPC), which was added to the Code in 1973
lays down the content and language to be provided in a judgment by the judge.

Section 354(3) states that “When the conviction is for an offence punishable with death or, in the
alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall
state the reasons for the sentence awarded, and, in the case of sentence of death, the special
reasons for such sentence”. In simple words, Section 354(3) requires a judge to provide „special
reasons‟ when the convict is punished with death, life imprisonment, or imprisonment for a long
tenure.

The sentencing follows conviction and is proportional to the degree and intensity of the crime
committed. However, no straitjacket formula is applicable while sentencing the convicts.

Background of the case

There are quite a few judicial pronouncements before the Court gave the judgment in Bachan
Singh, regarding whether the death penalty is in lieu of the Constitutional provisions.

In Jagmohan v. State of U.P (1972), the Supreme Court held that Articles 14, 19, and 21 that
guarantee the Right to equality, freedom of speech and expression, and the Right to life; did not
violate the death penalty. The facts, circumstances, and the nature of the crime committed would
be the factors scrutinized by the judge when making the choice between awarding the death
penalty or life imprisonment. Therefore, the decision of awarding the death penalty was made in
accordance with the procedure laid down by law as required by Article 21.

In Rajendra Prasad v. State of U.P (1979), the Court held that unless it was shown that the
individual is a terrible and continuing threat to social security, capital punishment would not be
justified. Justice Krishna Iyer opined that the death penalty should be inflicted in the case of three
categories of criminals:

(1) for white-collar offences,

(2) for anti-social offences, and

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(3) for eradicating a person who is a threat to society, that is, a seasoned killer.

The Court also held that the death penalty for the murder offence awarded pursuant to Section
302 of the Indian Penal Code,1860 would not be a violation of the Constitutional provisions. In
grave cases of extreme culpability, capital punishment can be awarded and the convict‟s
condition must be taken into account.

Provisions involved in the case

Section 354 (3) of the CrPC, 1973.

Section 302 of the Indian Penal Code, 1860.
Article 14 and 21 of the Constitution.

Facts of the case

Bachan Singh was convicted for the offence of committing the murders of Desa Singh, Durga
Bai, and Veeran Bai by the Sessions Court. He was given the death penalty under Section 302 of
the Indian Penal Code. He appealed in the High Court, however, the Court dismissed his appeal
and upheld the death sentence.

He then appealed to the Supreme Court and raised the question of whether the facts of the case
would fall under the ambit of the „special reasons‟ under Section 354(3) of CrPC, 1973.

Prominent issues raised

Whether death penalty that has been provided as the punishment for the offence of murder under
Section 302, Indian Penal Code, 1860, is unconstitutional?
Whether the sentencing procedure stipulated in Section 354(3) of the CrPC, 1973 is
unconstitutional insofar as it vests the courts with unguided and untrampled power, and allows
the death sentence to be imposed arbitrarily on an individual found guilty of any offence
punishable with death or life imprisonment?

Contentions of the petitioners

The petitioner raised the contention that the death penalty awarded for the offence of murder
mentioned under Section 302 of IPC violates Article 19 of the Indian Constitution. The death
penalty puts an end to all the freedoms guaranteed under Article 19(a) to (g). No social purpose is
served by the death penalty and it does not fall under the purview of unreasonable restriction.

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Contentions of the respondents
The respondents contended that an individual must own property in a way that does not infringe
the rights of another individual, that is, the principle of sic utere tuo ut alienum non laedas. They
further contended that the rights guaranteed under Article 19 are not absolute in nature and are
subject to certain reasonable restrictions.

Judgment
The Supreme Court dismissed the appeal in accordance with the majority opinion. The Court
dismissed the challenge to the constitutionality of Section 302 of the IPC in so far as it prescribes
the death sentence, as well as, the constitutionality of Section 354(3) of the CrPC, 1973 was
rejected.

Analysis of the judgment

In the landmark judgment of Maneka Gandhi v. Union of India (1978), the scope and the
interrelationship between Articles 14, 19, and 21 were given a new dimension. It was held that
every law of punitive detention must pass the test of all three articles, both in the procedural and
the substantive angle.

In A.K. Gopalan v. The State of Madras (1950), all the six learned judges were of the opinion
that if the accused was awarded punitive detention or imprisonment after being convicted of
committing an offence under the Indian Penal Code, it would be beyond the scope of Article 19.

The Supreme Court dismissed the challenges regarding the constitutionality of Section 302 of
IPC and 354(3) of CrPc. The Court further opined that the six fundamental rights guaranteed
under Article 19(1) are not absolute in nature.

Firstly, they are subject to restrictions emanating from an obligation of an individual to not use
their rights in a way that injures or infringes the rights of the other members of society. This is
based on the maxim sic utere tuo ut alienum non laedas, that is, an individual using their property
in a manner that does not infringe the legal rights of another individual.

Secondly, under Clauses (2) to (6) of Article 19, these rights are expressly mentioned to be
subject to the power of the state, which can impose certain reasonable restrictions. These
restrictions could extend to prohibiting the exercise of these rights in special circumstances.

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Another issue is whether the courts have untrampled power in imposing the death penalty, and
the nature and extent of the special reasons. The expression „special reasons‟ as stated in Section
354(3) of the CrPC means exceptional reasons owing to the grave nature of the crime. The Apex
Court laid down the doctrine of „rarest of the rare cases‟ in awarding the death penalty. Life
imprisonment is the rule, and the death sentence is awarded as an exception for those convicted
for murder. Exercise of discretion under Section 354(3) of CrPC, 1973 would be exceptional.
The death penalty would be awarded only in crimes that shake the collective conscience of
society. The imposition of the death sentence should only be in the rarest of rare cases.

Justice Sarkaria stated the following points in the judgment:

(1) The extreme death penalty can be inflicted in the gravest cases of extreme culpability.

(2) Along with the facts and circumstances of the offense, the circumstances of the offender must
be taken into account. The court must scrutinize both the crime as well as the criminal, a nd then
decide whether life imprisonment is to be awarded or the death penalty. Accordingly, the
presence or the absence of „special reasons‟ must be established. Emphasis is to be laid on the
aggravating and mitigating factors which are dependent upon the facts and circumstances of the
case.

A few parameters were suggested by Dr. Chatale in the judgment for ascertaining „aggravating
circumstances‟. He drew inferences from the American penal statutes framed after Furman v.
Georgia (1972), in general, and Clauses 2(a), (b), (c), and (d) of the Indian Penal Code
(Amendment) Bill that was passed in 1978 by the Rajya Sabha (but was not ultimately enacted).

The parameters are as follows:

(a) The murder was pre-mediated and involved extreme brutality; or

(b) The murder involves exceptional depravity; or

(c) A member of any of the armed forces of the Union, or a member of any police force, or any
public servant was murdered, while the member/public servant was discharging their duties;

(i) The public servant was discharging their duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant
in the lawful discharge of his duty as such member or public servant whether at the time of the

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murder he was such member or public servant, as the case may be, or had ceased to be such
member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section
43 of the CrPC, 1973, or who had assisted a Magistrate or a police officer demanding his aid or
requiring his assistance under Section 37 and Section 129 of the said Code.

He further suggested a few mitigating circumstances that the Court should take into account as
per their discretion:

(1) The offence was committed by an individual who was extremely mentally or emotionally
disturbed.

(2) The age of the accused is to be taken into account. If the accused is a minor, he shall not be
sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence that would act as
a threat to the well-being of the members of the society.

(4) The probability that the accused can be reformed and rehabilitated. The State would need to
prove that the accused does not fulfil conditions 3 and 4 by giving sufficient evidence.

(5) If the accused felt that he was morally justified in committing the act as per the facts and
circumstances of the case.

(6) The accused acted under duress or was dominated by another individual‟s will.

(7) The condition of the accused showed that he was mentally ill and because of the illness, he
was not capable of understanding the criminality of his conduct.

Dissenting opinion

Rule of law penetrates the entire fabric of the Indian Constitution. It does not include
arbitrariness. Article 14 acts as a guarantee against arbitrariness and prohibits state action,
whether legislative or executive, that suffers from a high level of arbitrariness.

Justice PN Bhagwati was of the view that Section 302 of the IPC in so far as it provides for the
imposition of the death penalty as an alternative to a life sentence is ultra vires. It is
unconstitutional and void since it is an infringement of Articles 14 and 21 of the Constitution and

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no legislative guidelines are laid down as to when life should be permitted to be extinguished by
the imposition of the death sentence.

Another dissenting opinion was that it is difficult to answer the question of whether the death
penalty serves any penological purpose. It is a difficult, complex, and intractable issue. There has
been significant discourse on the purposes of the death penalty and whether it serves the purpose
of deterrence. A large proportion of people, including sociologists, legislators, jurists, judges, and
administrators, from the length and breadth of the country as well as the world, still have averse
opinions towards the necessity of imposing capital punishment.

Further, in 1979, India acceded to the International Covenant on Civil and Political Rights
adopted by the General Assembly of the United Nations. India is committed to a policy for the
abolition of the death penalty.

The Supreme Court dismissed the appeal in accordance with the majority opinion. It was held
that the provision of the death penalty as an alternative punishment for the offence of murder
under Section 302 of the IPC, in so far as it prescribes the death sentence; as well as the
constitutionality of Section 354(3) of the CrPC, 1973, is neither unreasonable nor is it against the
public interest. It is constitutionally valid and does not violate the letter nor the ethos of Article
19 of the Constitution.

Aftermath of the case

It is often argued that the ambiguities present in Bachan Singh‟s case have led to the absence of
significant criteria for imposing the death penalty. A number of reiterations of the case have
arisen that are not in consonance with the actual judgment.

The central argument against the framework given in Bachan Singh‟s case is the lack of
normative clarity. It does not clearly explain the interrelationship between the aggravating and
mitigating factors. A number of factors and parameters are considered such as age, mental state,
and the socio-economic background of the culprit. The judges have the discretion to fill this
normative gap while giving sentences in the future, with their own considerations.

Further, the procedural fairness of sentencing proceedings has been significantly impacted due to
the lack of a theoretical framework developed in Bachan Singh‟s case

One major argument in the Bachan Singh case was that only 18 states have abolished the death
penalty. The current situation is much different than it was then. In 2019, Amnesty declared that
106 countries discontinued the death penalty in law for all the crimes, and 142 countries (more

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than two-thirds of the total countries) had put an end to imposing the death penalty in law or
practice. India is one of the very few countries that are yet to abolish the death penalty.

In Bachan Singh‟s case, the majority was of the opinion that the death penalty would act as a
deterrent to murder. A number of surveys and statistical reports have suggested that the death
penalty does not act as a deterrent. In 1988, a survey conducted by the UN was unable to provide
any evidence to support the claim that executions were more of a deterrent than life
imprisonment.

In Canada, the homicide rate was 23% lower than the previous year, after they abolished the
death penalty in 1976. In a state-by-state analysis in the USA, it was found that during the 1980-
2000s, the homicide rate in states which imposed the death penalty has been 48 per cent to 101
per cent higher than in the states without the death penalty.

Another issue is imposing the death penalty on innocents. For example, in the USA more than
184 prisoners since 1973 given the death penalty were exonerated or released on the ground that
they were innocent.

In India, it is common to see biases in criminal investigations against marginalized religious

communities or the lower caste or class groups. They are disproportionately subject to the death
penalty. In 2015, the 262nd Law Commission Report called for the abolition of the death penalty
for ordinary crimes. Activists continue to argue for abolishing the death penalty for all crimes.
The constitutionality of the death penalty will continue to be challenged in courts and the
Supreme Court will soon have to answer whether the absence of a political will is a sufficient
ground to supersede an individual‟s right to life.

Conclusion

The category of „rarest of the rare‟ is always evolving. The Nirbhaya case violated collective
conscience and clearly was under the scope of this doctrine. However, this doctrine is quite
arbitrary, subjective, and discriminatory.

It is quite difficult to draw a line of distinction between a rare and an ordinary murder, and
subsequently the rarest case. The crime is mostly described as heinous, grotesque and so on but it
does not lay a clear line of demarcation. It is ultimately up to the judges to award the death
penalty as per their values, sensitivity, and special reasons regarding the gravity of the crime.

In the Kathua rape case as well as the Unnao rape case, the facts and circumstances were quite
brutal. However, the Courts did not award the death penalty to the culprits. It raises a pertinent

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question of whether a rare form of crime becoming common causes the courts to punish the
culprits with life imprisonment instead.

It is the dire need of the hour to lay down an effective framework for awarding the death penalty,
and contemplate whether the death penalty is in the interests of society

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