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3. It must be realised that the question of constitutional validity of death penalty, is not just a simple question of application of constitutional standards by adopting a mechanistic approach. It is a difficult problem of constitutional interpretation to which it is not possible to give an objectively correct legal answer. It is not a mere legalistic problem which can be answered definitively by the application of logical reasoning but it is a problem which raises profound social and moral issues and the answer must therefore necessarily depend on the judicial philosophy of the Judge, This would be so in case of any problem of constitutional interpretation but much more so would it be in a case like the present where the constitutional conundrum is enmeshed in complex social and moral issues defying a formalistic judicial attitude. That is the reason why in some countries like the United States and Canada where there is power of judicial review, there has been judicial disagreement on the constitutionality of death penalty. On an issue like this, as pointed out by David Pannick in his book on "Judicial Review of the Death Penalty" judicial conclusions emanate from the judicial philosophy of those who sit in judgment and not from the language of the Constitution." But even so, in their effort to resolve such an issue of great constitutional significance, the Judges must take care to see that they are guided by "objective factors to the maximum possible extent." The culture and ethos of the nation as ' gathered from its history, its tradition and its literature would clearly be relevant factors in adjudging the constitutionality of death penalty 50 and so would the ideals and values embodied in the Constitution which lays down the basic frame-work of the social and political structure of the country, and which sets out the objectives and goals to be pursued by the people in a common endeavour to secure happiness and welfare of every member of the society. So also standards or, norms set by International organisations and bodies have relevance in determining the constitutional validity of death penalty and equally important in construing and applying the equivocal formulae of the Constitution would be the "wealth of non-legal learning and experience that encircles and illuminates" the topic of death penalty. "Judicial dispensers," said Krishna Iyer, J. in Dalbir Singh and Ors. v. State of Punjab 1979 (3) SCR 1959 "do not behave like cavemen but breathe the fresh air of finer culture." There is no reason why, in adjudicating upon the constitutional validity of death penalty, Judges should not obtain assistance from the writings of men like Dickens, Tolstoy, Dostoyevsky, Koestter and Camus or from the investigations of social scientists or moral philosophers in deciding the circumstances in which and the reasons why the death penalty could be seen as arbitrary or a denial of equal protection. It is necessary to bear in mind the wise and felicitous words of Judge Learned Hand in his "Spirit of Liberty" that while passing on a question of constitutional interpretation, it is as important to a Judge :

Constitutional law raises, in a legal context, problems of economic, social, moral and political theory and practice to which non-lawyers have much to contribute. Non-lawyers have not reached unanimity on the answers to the problems posed; nor will they ever do so. But when judges are confronted by issues to which there is no legal answer, there is no reason (other than a desire to maintain a fiction that the law provides the answer) for judicial discretion to be exercised in a vacuum, immune from non-legal learning and extra-legal dispute. 'Quotations from noble minds are not for decoration (in hard constitutional cases) but for adaptation within the framework of the law. "Vide: David Pannick on 'Judicial Review of the Death Penalty.' The Judges must also consider while deciding an issue of constitutional adjudication as to what would be the moral, social and economic consequences of a decision either way. The consequences of course do not alter the meaning of a constitutional or statutory provision but they certainly help to fix its meaning. With these prefatory observations I shall now proceed to consider the question of constitutional validity of death penalty.

17. It is in the light of these constitutional provisions that I must consider whether death penalty provided under Section 302 of the Indian Penal Code read with Section 354 Sub-section (3) of the CrPC is constitutionally valid. Now one thing is certain that the Constitution does not in so many terms prohibit capital punishment. In fact, it recognises death sentence as one of the penalties which may be imposed by law. Article 21 provides inter alia that no one shall be deprived of his life except according to procedure established by law and this clearly postulates that a person may be deprived of his life in accordance with the procedure, which, of course, according to the decision of this Court in Maneka Gandhi's case (supra) must be reasonable, fair and just procedure, for inflicting death penalty on a person depriving him of his life. Clause (c) of Article 72 also recognises the possibility of a sentence of death being imposed on person convicted of an offence inasmuch as it provides that the President shall have the power to suspend, remit or commute the sentence of any person who is convicted of an offence and sentenced to death. It is therefore not possible to contend that the imposition of death sentence for conviction of an offence is in all cases forbidden by the Constitution. But that does not mean that the infliction of death penalty is blessed by the Constitution or that it has the imprimatur or seal of approval of the Constitution. The Constitution is not a transient document but it is meant to endure for a long time to come and during its life, situations may arise where death penalty may be found to serve a social purpose and its prescription may not be liable to be regarded as arbitrary or unreasonable and therefore to meet such situations, the Constitution had to make a provision and this it did in Article 21 and Clause (c) of Article 72 so that, even where death penalty is prescribed by any law and it is otherwise not unconstitutional, it must still comply with the requirement of Article 21 and it would be subject to the clemency power of the President under Clause (c) of Article 72. The question would however still remain whether the prescription of death penalty by any particular law is violative of any provision of the Constitution and is therefore rendered unconstitutional. This question has to be answered in the present case with reference to Section 302 of the Indian Penal Code read with Section 354 Sub-section (3) of the CrPC.

18. Now in order to answer this question it is necessary first of all to examine the legislative trend in our country so far as the imposition of death penalty is concerned. A "brief survey of the trend of legislative endeavors will, as pointed out by Krishna Iyer, J. in Rajendra Prasad v. State of U.P. (1979) 3 SCR 646 "serve to indicate whether! the people's consciousness has been projected towards narrowing or widening the scope for infliction of death penalty." If we look at the legislative history of the relevant provisions of the Indian Penal 30 Code and the CrPC, we find that in our country there has been a gradual shift against the imposition of death penalty. The legislative development, through several successive amendments has shifted the punitive center of gravity from life taking to life sentence. Sub-section (5) of Section 367 of the CrPC 1898 as it stood prior to its amendment by Act 26 of 1955 provided: