No person shall be deprived of his life or personal liberty except according to procedure established by law.
[72]The wording of this article presented an obstacle to a challenge to the death sentence, because there was a "law" which made provision for the death sentence. Moreover, article 72 of the Constitution empowers the President and Governors to commute sentences of death, and article 134 refers to the Supreme Court's powers on appeal in cases where the death sentence has been imposed. It was clear, therefore, that capital punishment was specifically contemplated and sanctioned by the framers of the Indian Constitution, when it was adopted by them in November 1949.[1]
[73]Counsel for the accused in Bachan Singh's case sought to overcome this difficulty by contending that article 21 had to be read with article 19(1), which guarantees the freedoms of speech, of assembly, of association, of movement, of residence, and the freedom to engage in any occupation. These fundamental freedoms can only be restricted under the Indian Constitution if the restrictions are reasonable for the attainment of a number of purposes defined in sections 19(2) to (6). It was contended that the right to life was basic to the enjoyment of these fundamental freedoms, and that the death sentence restricted them unreasonably in that it served no social purpose, its deterrent effect was unproven and it defiled the dignity of the individual.
[74]The Supreme Court analysed the provisions of article 19(1) and came to the conclusion, for reasons that are not material to the present case, that the provisions of section 302 of the Indian Penal Code did "not have to stand the test of article 19(1) of the Constitution."[2] It went on, however, to consider "arguendo" what the outcome would be if the test of reasonableness and public interest under article 19(1) had to be satisfied.
[75]The Supreme Court had recognised in a number of cases that the death sentence served as a deterrent, and the Law Commission of India, which had conducted an investigation into capital punishment in 1967, had recommended that capital punishment be retained. The court held that in the circumstances it was "for the petitioners to prove and establish that the death sentence for murder is so outmoded, unusual or excessive as to be devoid of any rational nexus with the purpose and object of the legislation."[3]
[76]The Court then dealt with international authorities for and against the death sentence, and with the arguments concerning deterrence and retribution.[4] After reviewing the arguments for and against the
- ↑ Id. at 730, para. 136.
- ↑ Id. at 709, para. 61.
- ↑ Id. at 712, para. 71.
- ↑ I have not yet dealt specifically with the issues of deterrence, prevention and retribution, on which the Attorney General placed reliance in his argument. These are all factors relevant to the purpose of punishment and are present both in capital punishment, and in the alternative of imprisonment. Whether they serve to make capital punishment a more effective punishment than imprisonment is relevant to the argument on justification, and will be considered when that argument is dealt with. For the moment it is sufficient to say that they do not have a bearing on the nature of the punishment, and need not be taken into account at this stage of the enquiry.
