FACTS :

Bachan Singh, appellant in Criminal Appeal No. 273 of 1979, was tried and convictedand
sentenced to death under Section 302, Indian Penal Code for the murders of DesaSingh,
Durga Bai and Veeran Bai by the Sessions Judge. The High Court confirmed hisdeath
sentence and dismissed his appeal. Bachan Singh then appealed to the SC by special leave,
which came up for hearing before a Bench of this Court (consisting of Sarkaria and Kailasam,
JJ.). The question raised in the appeal was, whether the facts found by the courts below
would be "special reasons" for awarding, the death sentence as required under Section 354(3)
of the CrPC, 1973.
ISSUES :
The principal questions that fall to be considered in this case are:
(i)

Whether death penalty provided for the offence of murder in Section 302, Penal
Code is unconstitutional?

(ii) If the answer to the above mentioned question be in the negative, whether the sentencing
procedure provided in Section 354(3) of the CrPC, 1973 (Act 2 of 197ove mentioned
question be in the negative, whether the sentencing procedure provided in Section 354(3) of
the CrPC, 1973 (Act 2 of 1974) is unconstitutional on the ground that it invests the Court
with unguided and untrammelled discretion and allows death sentence to be arbitrarily
imposed on a person found guilty of murder or any other capital offence punishable under the
Indian Penal Code with death or, in the alternative, with imprisonment for life.?

JUDGEMENT :
In this case judges differs in two views, one is majority consisting of Y.V.Chandrachud,C.J.,
R.S.Sarkaria, A.C.Gupta, and N.L.Untwalia JJ. The other view that is of minorityconsists of
P.N.Bhagwati J.The majority view was given with reference to the constitutional validity of
(i) death penalty for murder in 302 IPC (ii) and procedure in 354(3) CrPC, 1973.Now under
issue (i) there are further two points:

Whether Article 19 is at all applicable for judging the validity of the impugnedprovision in
section 302 of IPC?

Whether the impugned limb of the provision of 302 of IPC contravenes Article 21 of the
constitution?It was finally held that the impugned provision of section 302 penal code
violates neither the letter nor the ethos of Art. 19. As to the matter of 2nd
point Art.21 clearly brings out the implication that the founding fathers recognized the rights
of the state to deprive a person of his life or personal liberty in accordance with fair, just and
reasonable procedure established by valid law.
There are several other indications, also, in the Constitution which show that the Constitution makers were
fully cognizant of the existence of death penalty for murder and certain other offences
in the IPC. Now there comes (ii) issue which says are the provisions of Section 354(3) of the
CrPC,1973 unconstitutional? That is the question. The constitutional validity of Section
354(3)is assailed on the ground that -A sentence of death is the extreme penalty of law and it
is but fair that when a Court awards that sentence in a case where the alternative sentence of
imprisonment for life is also available, it should give special reasons in support of the
sentence. Accordingly, Sub-section (3) of Section 354 of the current Code provides :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. Now comes the minority view
(consisting of P.N.Bhagwati) who says that section 302 of IPC in so far as it provides for
imposition of death penalty as an alternative to life sentence is Ultra Virus and Void as being
violative of Articles 14 and 21 of the constitution. Since it does not provide any legislative
guidelines as to when life should be permitted be extinguished by imposition of death
sentence.
He then further said that I would strike down section 302 IPC as unconstitutional and void.