Case analysis for the subject of Penology, Victiomology & Correctional Administrational

 Smt. Sashi Nayar v. Union of India and Ors.

                                                       CONSTITUTIONAL BENCH

The writ petition was filed in the Hon’ble supreme Court of India under Article 32 was entertained by a Division Bench headed by Justice K. N. Singh on 25.10.91 regarding one of the four submissions made by the counsel for the petitioner, Mr. Ravi. K Jain, that the execution of capital punishment by hanging is barbaric and dehumanising which should be substituted by some other decent and less painful method in executing. After allowing the petition the matter was referred to the Constitutional Bench constituting Justice K N Singh, Justice P B Sawant, Justice N M Kasliwal, Justice B P Jeevan Reddy and Justice G N Ray.

QUESTION OF LAW TO BE TAKEN INTO CONSIDERATION:

The case is in the form of a writ petition filed in the hon’ble Supreme Court of India under the Court’s writ jurisdiction under article 32 of the Indian Constitution. The moot question which is to be decided by the Supreme Court is that whether the mode of execution of death sentence by hanging is barbaric and dehumanising and whether it should be substituted by some other decent and less painful method in executing the sentence.

FACTS OF THE CASE:

Narrating the facts of the case briefly, Raj Goapal Nayar, the petitioner’s husband was tried for offence under Section 302, IPC for having killed his father and step brother. The Sessions Judge by his judgment and order dated 24.4.1986 convicted Raj Gopal Nayar and awarded sentence of death. On appeal, the High Court confirmed the death penalty and dismissed Raj Gopal’s appeal against the order of the Sessions Judge. Raj Gopal thereafter filed a special leave petition before this Court challenging the judgment and order of the Sessions Judge and the High Court, but the special leave petition was also dismissed by this Court. Review petition filed by him was also dismissed. Consequently, his conviction and the sentence of death stood confirmed by all the courts. [1]

Thereupon, he filed mercy petitions before the Governor of Jammu & Kashmir and the President of India, but the same were rejected. ‘He challenged the order of the President of India rejecting the mercy petition before this Court by means of a writ petition under Article 32 of the Constitution, but the same was also dismissed. Another writ petition under Article 226 of the Constitution was filed before the Jammu & Kashmir High Court for quashing the sentence imposed on him but the same was also rejected. As the legal proceedings before the court failed, he was to be hanged on 26.10.1991. Smt. Shashi Nayar, the petitioner, thereupon filed the present petition under Article 32 of the Constitution before this Court challenging the validity of the capital punishment with a prayer for the quashing of the sentence awarded to Raj Gopal Nayar. The petition was entertained by a Division Bench on 25.10.1991 and the matter was referred to the Constitution Bench for consideration, and meanwhile the execution of the condemned prisoner was stayed.[2]

The division bench held that the capital punishment as provided by the law is to be awarded in rarest of the rare cases and the procedure established by law for awarding the death penalty is reason- able and does not in any way violate the mandate of Article 21 of the Constitution. The death penalty has a deterrent effect and it serve a social purpose, having regard to the social conditions in our country the stage was not ripe for taking a risk of abolishing it. A judicial notice can be taken of the fact that the law and order situation in the country has not only not improved since 1967[3]but has deteriorated over the years and is fast worsening today. The bench considered the present era as the most inopportune time to reconsider the law on the subject. The division bench allowed the appeal on the ground of mode of execution of death penalty and referred it to the constitutional bench. The case laws which were cited for the Court’s above mentioned reasoning were Jagmohan Singh v. State of U.P[4]and Bacchan Singh v. State of Punjab[5].

Judgment and reasoning of the Supreme Court: –

The constitutional bench dismissed the petition on the ground that hanging is the least painful and the most scientific mode of execution of death penalty. The case of Deena alias Deen Dayal & Ors. etc. etc., v. Union of India & Ors. etc. etc.[6], was mentioned by the judges in  which the method of execution of death penalty was discussed in detail. In this case, it was held that hanging by neck was a scientific and one of the least painful methods of execution of the death sentence. The Court did not find any justification for taking a different view. The counsel for the petitioner urged in front of the bench to reconsider the question of mode of execution of death sentence by hanging. Since the question of the mode of execution of capital punishment has already been considered in the above stated case, the court did not think of reconsidering it.

CONCLUSION

This case law is one of the landmark case laws when it comes upon discussing the mode of execution of death sentence by hanging or the methods of execution of death sentence’ death penalty. The judges were prudent enough to understand the requirement or need of having death penalty or capital punishment in the present legal system. The judgment delivered here determines the intellect of the jury deciding the case. The death penalty is the requirement of the day as per me and I think that we should not talk about abolishing it at this juncture of time when the law and order situation has worsened and the crime rate has increased rapidly which includes brutal crimes against humanity like terrorism and holocaust. The crimes against women have increased and there are cases like Ramsingh and Ors. V State[7], which require the existence of death penalty in our legal system or else the magnitude of punishment awarded in comparison to the rate of crimes will lead to questioning of entire criminal justice system.