LexRAJENDRA PRASAD ETC. ETC. versus STATE OF UTTAR PRADESH
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/ 78 A RAJENDRA PRASAD ETC. ETC. v. STATE OF UTTAR PRADESH ' February 9, 1979 B. [V. R. KRISHNA IYER, D. A. DESAI AND A. P~ SEN, JJ.j c D E F G H P.enal Cod~. 302---Scope of-Death Sentence-When should &e awartl- ed. (Per majority-Krishna Iyer and Desai, JJ.) I. The only question before the Court is a& to when and why shall capital puriishment be pronounced on a murderer and why not in other cases, within the confines of the Code. Urgency to the solution is obvious. The overt ambivalence and covert conflict among judges concerning continued r~ort k> the death sentence mirrors the uncertainties and conflict& of valuei in the community itself. [89G & 90D] 2. Section 302 of the !PC throws little light on when the CO!lrt mall blang the seQ.tence of why the lesser penalty shall be preferred. Since Jaw reflects life. new meanings must permeate the Penal Code. Deprivation of life under our system is too fundamental . to be . permitted except on the gravCit ground and under the s,trictest scrutiny. [90F; 94C-D] 3. To say that discretion of the Judge passiD.g the sentence under s. 302 !PC is guided by well-recognised principles shifts the issue to what thooe recognised rules. are. The big margin 0£ subjectivism. a preference fbr old precedents, theories of modem penology, behavioral emphasis or social an~ cedents, judicial hubris or human ri&hts perspectives, reverence for outworn social philosophers-this plurality of forces play• a part in swinin& the pendulum of sentencing justice erratically. Until Parliament speaks, this Court cannot be silent. [95E; 9701 4. Executive commutation is no substitute for judicial justice, at best it is administrative policy and at worst pressure-based partiality. The criteria for clemency are often different. [99C] 5. In so far as s. 302 !PC is concerned several attempts had been made to restrict or remove dCath penalty but never to enlarge -its Bpplication. Parlia- mentary pressure has been to cut down death penalty, ·atthongh the section. formally remains the same. In the case of the Criminal Procedure Code the legislative development has shifted the punitive centre of gravity from life taldng to life sentence. In other words, the legislative trend seeml!l to be while formerly the rule was to sentence to death a person who is C-Onvicted for murder, it is now to impose a lesser sentence· for reasons to be recorded in writing. Formerly, capital punishment was to be imposed unless special reasons could be found to justify the lesser sentence. After 1955 courts, were left equally free to award either sentence. The 1973 Code has made an un- mistakable shift in legislative emphasise under which life imprisonment for · murder is the rule and dapital sentence the exception for rc.uons to be stated. [IO!D; 104B-C] ,.,. ... ( ... .. " -'i ~ ~ RAJENDRA V. U.P. STATE 79 6. Ct'iminologists al]. the world over, however, argued that death has deci.. A 11ively lost the battle, and even in our Codes it has 'Shrunk into a, weak excep· tion. What are the exceptional cases ? Personal story of an actor in a shocking- murder, if considered, may bring tears and soften the serttence. He mi,aht have been a tortured child, an -ill-treated 'orphan, a jobless man or the <>onvict's poverty might be responsible for the crime. [106G; 107B] 7. In the post Constitution periods. 302 IPC and s. 345(3) o( the Cr. P.C. llave to be relld in the humane light of Parts III and IV illumined by the Prumble to the Constitution. In other words the sacrifice of a life sentence is sanctioned only if otherwise public interest and social defence and public •rder would be smashed .irretrievably. Such extraordinary grounds alone ~ -constitutionally qualify a.si special r'easons. One stroke of murder hardly quali- L-..., fies for this drastic requirement, however gruesome the killing may be. The 'r 1CArching question the Judge' must put to himself is what is so-extra-ordinari- .,( IJ reas:onab1e as to validate the wiping out of life itself and with it the great • rig\lt• which inhere in him in the totality of facts. [121F; llOE·FJ 8 .. The retributive theory has had its day and is no longer valid. Deter- r•nce- and reformation are the primary s6cial s.oals which make deprivation of life and liberty reasonable as penal penacea. [122C] B c 9. The current ethos, with its strong emphasis en human rights and against D, ·tiefl.th penalty,
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