V.R. Krishna Iyer JUDGMENT
1. Death sentence on death sentence is Parliament's function. Interpretative non application of death sentence when legislative alternatives exist is within judicial jurisdiction. The onerous option to spare the lives of the appellants to be spent in prison or to hand them over to the hangman to be jettisoned out of terrestrial life into "the undiscovered country from whose bourn no traveller returns" is the crucial function this Court has to exercise in the present appeal.
2. Sir Winston Churchill, in his oft-quoted observation, said:
The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country.
3. Without academic aura and maukish sentimentalism the court has to rise to principled pragmatism in the choice of the penal strategy provided by the Penal Code. The level of culture is not an irrelevant factor in the punitive exercise. So we must be forewarned against deeply embedded sadism in some sectors of the community, demanding retributive death penalty disguised as criminal justice-a trigger-happy pathology curable only by human rights literacy. But the dignity of man, a sublime value of our Constitution and the heart of penological humanisation, may find expression through culturisation of the judicial art of interpretation and choice from alternatives. If the court reads the text of Section 302 Penal Code, enlightened by the fundamental right to life which the Father of Nation and the founding fathers of the Constitution made manifest, the judicial oath to uphold the Constitution will unfold profound implications beyond lip service to Form VIII of the Third Schedule and this lofty obligation and cultural constitutional behest validates our exploration of the meaning of meanings wrapped in the uncharted either/or of the text of Section 302 I.P.C. It is right to state, to set the record straight, that this Court has in Rajendra Prasad's, case MANU/SC/0212/1979 : 1979CriLJ792 , exposed the disutility and counter-culture of an obsolescent obsession with crime as distinguished from crime doer and the sentencing distortion that develops almost into a paranoid preoccupation with death dealing severity as the saviour of society in the land of the Buddha and the Mahatma and in a world where humanity has protested against barbaric executions by State agencies even with forensic 'rites' Courts read the Code, not in judicial cloisters but in the light of societal ethos. Nor does the humanism of our Constitution holistically viewed subscribe to the hysterical assumption or facile illusion that a crime-free society will dawn if hangman and firing squads were kept feverishly busy.
4. We may remind the intractable retentionists that the British Royal Commission, after studying statistics from six abolitionist countries, namely, Switzerland, Belgium, The Netherlands, Norway, Sweden and Denmark, observed : "The evidence that we ourselves received in these countries was to the effect that released murderers who commit further crimes of violence are rare, and those who become useful citizens are common."
5. No Indian is innocent of the insightful observations of the Father of the Nation over 40 years ago in the Harijan:
I do regard death sentence as contrary to ahimsa. Only........