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28. One of the argument in Bachan Singh's case (supra) was that the provision of death penalty in Section 302 of the Indian Penal Code offended Article 19 of the Constitution. In that, death penalty serves no 25 178410 social purpose and its value as a deterrent remains unproven and defiles the dignity of individual so solemnly vouchsafed in the Preamble of the Constitution, its imposition must be regarded as "unreasonable restriction" amounting to total prohibition on the freedom guaranteed in Article 19 (1). The Court after analysing its earlier decision in Banks' Nationalisation Case, reported in (1970) 1 SCC 248, and Maneka Gandhi v. Union of India, reported in (1978) 1 SCC 248 observed thus:-

"41. We have copiously extracted from the judgments in A.K.Gopalan case, to show that all the propositions propounded, arguments and reasons employed or approaches adopted by the learned Judges in that case, in reaching the conclusion that the Indian Penal Code, particularly those of its provisions which do not have a direct impact on the rights conferred by Article 19(1), is not a law imposing restrictions on those rights, have not been overruled or rendered bad by the subsequent pronouncements of this Court in Bank Nationalisation case or in Maneka Gandhi's case. For instance, the proposition led down by Kania, C.J., Fazl Ali, Patanjali Sastri, and S.R.Das, JJ. that the Indian Penal Code particularly those of its provisions which cannot be justified on the ground of reasonableness with reference to any of the specified heads, such as "public order" in clauses (2), (3) and (4), is not a law imposing restrictions on any of the rights conferred by Article 19(1), still holds the field. Indeed, the reasoning, explicit or implicit, in the judgments of Kania, C.J., Patanjali Sastri and S.R.Das, JJ. that such a construction which treats every section of the Indian Penal Code as a law imposing `restriction' on the rights in Article 19(1), will lead to absurdity is unassailable........."

47. Having given thoughtful consideration, it appears that the abovesaid contention regarding Section 31A of the NDPS Act being 41 178410 violative of Article 21 of the Constitution pressed into service on behalf of the petitioners deserves acceptance. In the case of Mithu, the provision of Penal Code containing similar standardised, mandatory death penalty was put in issue. The validity of Section 303 of the Indian Penal Code was challenged, inter alia, being violative of Article 21 of the Constitution. Even in that case, the argument was that Section 303 creates an absolute liability in ignorance of several important aspects of cases which attracts the application of that section and all questions which are bound to arise under it. The sum and substance of the argument was that the provision contained in Section 303 was wholly unreasonable and arbitrary, and thereby, it violated Article 21 of the Constitution, which affords the guarantee that no person shall be deprived of his right to life and personal liberty, except in accordance with the procedure established by law. The Court noted that, since the procedure by which Section 303 authorised the deprivation of life was unfair and unjust, the section was unconstitutional. For recording this opinion, the Court adverted to the development of law as expounded in Maneka Gandhi's case (supra). The larger Bench (7 Judges) of the Apex Court has held that a statute, which merely prescribes "some kind of procedure" for depriving a person of his life and liberty, cannot ever meet the requirements of Article 21. Instead, the procedure prescribed 42 178410 by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary. The Court also adverted to the dictum in Sunil Batra v. Delhi Administration, reported in (1978) 4 SCC 494, which had considered the question as to whether a person awaiting death sentence can be kept in solitary confinement. In that decision, it was noted that, though our Constitution did not have a "due process" clause as in the American Constitution, the same consequence ensued after the decisions in the Banks' Nationalisation Case (supra) and Maneka Gandhi (supra). The Court also referred to the dictum in Bachan Singh (supra), which upheld the constitutional validity of the death penalty. It proceeded to hold that these decisions have expanded the scope of Article 21 in a significant way, and it is now too late in the day to contend that it is for the Legislature to prescribe the procedure and for the Courts to follow it;

55. While delivering separate but concurring opinion, Justice Chinnappa Reddy pithily observed as follows:-

"23. Section 303, Indian Penal Code, is an anachronism. It is out of tune with the march of the times. It is out of tune, with the rising tide of human consciousness. It is out of tune with the philosophy of an enlightened Constitution like ours. It particularly offends Article 21 and the new jurisprudence which has sprung around it ever since the Banks Nationalisation case freed it from the confines of Gopalan. After the Banks Nationalisation case, no article of the Constitution guaranteeing a Fundamental Right was to lead an isolated existence. Added nourishment was to be sought and added vigour was to be achieved by companionship. Beg, C.J., said it beautifully in Maneka Gandhi: