JUDGMENT Chandrachud, CJI. - In this batch of Writ Petitions, the petitioners were sentenced to death for the offence of murder under section 302 of the Penal Code. They have nothing in common except that they committed murders and have been sentenced to death. The sentence of death imposed upon them has become final in the sense that the Special Leave Petitions, Appeals, Review Petitions and Mercy Petitions filed by them have been dismissed, some of these more than once. The main question which has been raised by the petitioners in these writ petitions relates to the validity of the mode of execution of the death sentence. 2. Section 354(5) of the Code of Criminal Procedure provides that: When any person is sentenced to death the sentence shall direct that he be hanged by the neck till he is dead. The petitioners challenge the constitutional validity of this provision on the ground that hanging a convict by rope is a cruel and barbarous method of executing a death sentence, which is violative of Article 21 of the Constitution. That article provides that: No person shall be deprived of his life or personal liberty except according to procedure established by law. 3. The validity of death sentence which Section 302 prescribes for the offence of murder was upheld by this Court in Bachan Singh1. The ratio of that decision is that the normal sentence for murder is life imprisonment and that the sentence of death can be imposed in a very exceptional class of cases, described in that judgment as the rarest of rare cases. Which kind of cases would precisely fall within that category is in the very nature of things difficult to define and even to describe. But all the same, a studied attempt was made by this Court in Machhi Singh2 to identify, though not to crystalize, the area of those rarest of rare cases in which death sentence can justifiably be imposed. Shri Gargs criticism of that judgment that it virtually overrule. Bachan Singh and Jagmohan Singh3 is wide off the mark. In Machhi Singh, the learned Judge have but formulated broad guidelines to assist the Courts in deciding the vexed question as to whether the death sentence is at all called for. Shri Gargs criticism of that judgment that it virtually overrule. Bachan Singh and Jagmohan Singh3 is wide off the mark. In Machhi Singh, the learned Judge have but formulated broad guidelines to assist the Courts in deciding the vexed question as to whether the death sentence is at all called for. Evidently, the judgment does not enlarge the scope of the rule in Bachan Singh by broadening the narrow field of cases which call for the death sentence. 4. But, Machhi Singh is by the way. The validity of the death sentence for the offence of murder having been upheld by this court after a careful and prolonged discussions, there is no justification for reopening that question, though such a suggestion was made half-heartedly before us, towards the conclusion of the arguments. The question that, in the circumstances mentioned in Bachan Singh, it is permissible to impose the sentence of death must be treated as concluded and not any longer open to argument. There has to be finality to litigation, criminal as much as civil, if law is not to lose its credibility. No one of course can question that law is a dynamic science, the social utility of which consists in its ability to keep abreast of the emerging trends in social and scientific advance and its willingness to readjust its postulates in order to accommodate those trends. Life is not static. The purpose of law is to serve the needs of life. Therefore law cannot be static. But, that is not to say that Judgments rendered by this Court after a full debate should be reconsidered every now and then and their authority doubted or diluted. That would be doing disservice to law since certainty over a reasonably foreseeable period is the hall-mark of law. 5. The learned Solicitor General has raised a preliminary objection to these Writ Petition on the ground that the question Which is sought to be argued by the petitioners is concluded by the judgment rendered by a Constitution Bench of this Court in Bachan Singh. It is urged that since the question is not res integra, it is not open to the petitioners to raise it, nor indeed any reason or justification for this Court to entertain it. It is urged that since the question is not res integra, it is not open to the petitioners to raise it, nor indeed any reason or justification for this Court to entertain it. Learned counsel for the petitioners, led by Shri R. K. Garg, answer this objection by contending that the only question which arose in Bachan Singh was whether it is constitutionally permissible to prescribe the sentence of death. It is urged on behalf of the petitioners that the question as regards the validity of section 354(5) of the Code of Criminal Procedure was neither argued in Bachan Singh nor considered by the Court. 6. The objection taken by the learned Solicitor General is not without substance but for reasons which we will presently indicate, we do not propose to accept it. At page 196 of the Report in Bachan Singh, the main arguments of the Abolitionists which were "substantially adopted" by counsel for the petitioners therein are reproduced in clauses (a) (b) (c). Under Clause (c), the argument is reproduced thus: "Execution by whatever means and for whatever offence is cruel, inhuman and degrading punishment", by which is obviously meant execution of death sentence. The argument mentioned in clause (a) to the effect that the death penalty is unconstitutional because it is irreversible is considered at pages 196 and 197 of the Report. The argument mentioned in clause (b) as to whether death penalty serves any penological purpose at an is considered at page 197. Though the arguments mentioned in clauses (a) and (b) at page 196 of the Report have been specifically considered under separate heads as stated above, the argument mentioned in clause (c) at page 196 relating to the execution of death sentence has not been considered under a separate head. The discussion of the argument whether death penalty serves any penological purpose is concluded at the end of the third line on rage 222. The heading" Regarding (C)" should have appeared in the Report after the said third line and before the fresh paragraph which begins thus: "We will now consider the issue whether the impugned limb of the provision in section 302, Penal Code, contravenes Article 21 of the Constitution". The heading" Regarding (C)" should have appeared in the Report after the said third line and before the fresh paragraph which begins thus: "We will now consider the issue whether the impugned limb of the provision in section 302, Penal Code, contravenes Article 21 of the Constitution". That this should have been so is clear from the fact that after considering the particular argument at pages 222 and 223, Justice Sarkaria who spoke for the majority concludes: "Under the successive Criminal Procedure Code which have been- in force for about 100 years, a sentence of death is to be carried out by hanging. In view of the aforesaid constitutional postulates, by no stretch of imagination can it be said that death penalty under Section 302, Penal Code, either per se or because of its execution by hanging, constitutes an unreasonable, cruel or unusual punishment. By reason of the same constitutional postulates; it cannot be said that the framers of the Constitution considered death sentence for murder or the prescribed traditional mode of its execution as a degrading punishment which would defile "the dignity of the individual within the contemplation of the Preamble to the Constitution. 7. Bhagwati, J., who dissented from the majority considered the question of the constitutional validity of the death sentence, both from the substantive and the procedural points of view. At page 286, the learned Judge says that "the first time for most of the condemned prisoners would be the last few hours when all certainty is gone and the moment of death is known". After extracting quotations from Dostoyevsky and Canns which bear upon the execution of death sentence, the learned Judge observes: "There can be no stronger words to describe the utter depravity and inhumanity of death sentence". After making this observation Bhagwati. J, proceeds thus: "The physical pain and suffering which the execution of the sentence of death involves is also no less cruel and inhuman. In India, the method of execution followed is hanging by the rope. Electrocution or application of lethal gas has not yet taken its place as in some of the western countries. It is therefore with reference to execution by hanging that I must consider whether the sentence of death is barbaric and inhuman as entailing physical pain and agony. In India, the method of execution followed is hanging by the rope. Electrocution or application of lethal gas has not yet taken its place as in some of the western countries. It is therefore with reference to execution by hanging that I must consider whether the sentence of death is barbaric and inhuman as entailing physical pain and agony. It is no doubt true that the Royal Commission on Capital Punishment 1949-53 found that hanging is the most humane method of execution and so also in Ichikawa v. Japan, the Japanese Supreme Court held that execution by hanging does not correspond to cruel punishment inhibited by Article 36 of the Japanese Constitution. But whether amongst all the methods of execution, hanging is the most humane or the view of the Japanese Supreme Court hanging is not cruel punishment within the meaning of Article 36, one thing is clear that hanging is undoubtedly accompanied by intense physical torture and pain." (emphasis ours). Thereafter, the learned Judge refers to the description of the method of hanging given by Warden Duffy of San Quentin, a high security prison in America and the description given in 1927 by a surgeon who witnesses a double execution and records his conclusion by saying that the passages extracted by him established beyond doubt that the execution of sentence of death by hanging does involve intense physical pain and suffering, though it may be regarded by some as more humane than electrocution application of lethal gas." 8. This discussion will show that both the majority and the minority in Bachan Singh considered the question of the validity of the death sentence from the procedural aspect also, with special reference to the method of hanging prescribed by law for executing the death sentence. While upholding the validity of death sentence the majority did not overlook and, in fact took into consideration the circumstance that the mode prescribed by the Criminal Procedure Code for executing the dead sentence is banging. On the other hand, while striking down the validity of death sentence Bhagwati, J., was influenced by the consideration that the mode of hanging prescribed by law for executing the death sentence was itself cruel and barbarous. 9. On the other hand, while striking down the validity of death sentence Bhagwati, J., was influenced by the consideration that the mode of hanging prescribed by law for executing the death sentence was itself cruel and barbarous. 9. Though this is the true position, the reason why we are not inclined to uphold the preliminary objection taken by the learned Solicitor-General is that the question as regards the constitutional validity of section. 354 (5) of the Code of Criminal Procedure was neither raised squarely by the petitioners in Bachan Singh nor considered directly by the Court. If we may so put it, the question as regards the validity of section 354(5) of the Code was not directly and substantially in issue in Bachan Singh. The questions which arose for consideration in that case are formulated in majority judgment at page 169 as Questions I and II. The majority referred to the mode of execution of the death sentence only incidentally. The question whether the particular code of executing the death sentence prescribed by section 354 (5) of the Code violates the provisions of Article 21 was not considered specifically by the majority as an independent issue. Considering the judgment of Bhagwati, J., also as a whole, it would appear that the principal reason for which the learned Judge struck down the death sentence is its irrevocability, its arbitrariness and its lack of purpose. One of us was a party to the decision in Bachan Singh and if recollections do not fail so soon and are permissible aids to the understanding of a decision, it would not be right to say that the question as regards the constitutional validity of section 354 (5) of the Code was either directly put in issue in that case or was argued, upon or was considered by the Court as an independent reason bearing upon the validity of the death sentence. The question which the petitioners have raised in these Writ Petitions is important not only from the legal and constitutional point of view but also from the sociological point of view. It will not be proper to side-track that question and refuse to examine it fully because of the incidental consideration which it received in Bachan Singh. The question which the petitioners have raised in these Writ Petitions is important not only from the legal and constitutional point of view but also from the sociological point of view. It will not be proper to side-track that question and refuse to examine it fully because of the incidental consideration which it received in Bachan Singh. Accordingly, we refer the preliminary objection raised by the learned Solicitor General and proceed, to examine the question raised by the petitioners on its own merits, on the basis that the question is still open to argument. 10. The petitioners, who have been sentenced to death for acts of outrageous brutality have presented their case with an air of injured innocence. Their claim is that no matter what pain and suffering they may have insisted upon their victims and their families, no pain or suffering whatsoever shall be caused to them while executing the death sentence. It is urged on their behalf by Shri R.K. Garg, and the other learned counsel that even if it may be lawful to impose the death sentence lawful exceptional class of cases, it is impermissible to execute that sentence even in those cases, since it is inhuman and cruel to take human be under any circumstances, even under a decree of a Court. That is the fundamental premise of the petitioners, contention. Secondly it is urged that the method prescribed by section 354 (5) of the Code for executing the death sentence is inhuman, barbarous and degrading and therefore that method cannot be employed for executing the death sentence. It is the constitutional obligation of the State provide for a humane and dignified mode of executing the death sentence, which will not involve torture or cruelty of any kind. It is urged that if the State fails to discharge that obligation, no death sentence can be executed, howsoever justifiably it may have been imposed. The Code of Criminal Procedure prescribes only one method of executing the deal sentence, namely, by hanging and if that method violates the mandate of Article 21, the sentence must remain unexecuted, since the Court cannot substitute any other method of execution for the only method prescribed and envisaged by law. The Code of Criminal Procedure prescribes only one method of executing the deal sentence, namely, by hanging and if that method violates the mandate of Article 21, the sentence must remain unexecuted, since the Court cannot substitute any other method of execution for the only method prescribed and envisaged by law. Finally, it is argued that the burden is on the State to prove that the method of execution of the death sentence prescribed by section 354 (5) of the Code is a humane and civilized method and that it does not involve pain, cruelty or degradation of any kind. This is so because, the burden to establish that any particular act, challenged as unconstitutional, is just and fair always lies on the State. Therefore, it is not for the petitioners to show that any other method of executing the death sentence would be less painful, cruel or degrading. According to the petitioners, the State must fail if it does not discharge the burden which lies heavily upon it. The petitions cannot be dismissed on the ground that the method prescribed by section 354 (5) involves unnecessary pain, torture or cruelty, or that other methods of executing the death sentence are either not cruel or painful or are less cruel and painful than the method prescribed by section 354 (5) of the Code. These arguments require careful consideration, uninfluenced by the circumstance that the demand for civilized, humane and painless treatment is made by those who have been found guilty of subjecting their victims to uncivilized and inhuman acts involving great torture and suffering. The retribution involved in the theory Tooth for tooth and an eye for eye has no place in the scheme of civilized Jurisprudence and we cannot turn a deaf ear to the petitioners claim for justice on the ground that the enormity of their crimes has resulted in grave injustice to the victims of those crimes. We are concerned to ensure due compliance with constitutional mandates, no matter the occasion. If it were not so, smugglers who are detained under the laws of detention shall have to be denied the protection of Article 22 of the Constitution on the ground that they are guilty of acts which sabotage the economy of the country. We are concerned to ensure due compliance with constitutional mandates, no matter the occasion. If it were not so, smugglers who are detained under the laws of detention shall have to be denied the protection of Article 22 of the Constitution on the ground that they are guilty of acts which sabotage the economy of the country. Justice has to be done dispassionately in accordance with the constitutional attitudes whether it is a murderer or a smuggler who asks for it. Law cannot demand its pound of flesh. 11. At one stage we were inclined to decide the main question argued by the petitioners without considering the rival contentions as to the burden of proof. We thought that whether the burden lies on the petitioners to show that the method prescribed by section 354 (5) of the Code is constitutionally impermissible or whether the burden lies on the State to prove that the particular method is permissible within the framework of the Constitution, we should pronounce upon the legality of that method on the basis of the data which has been placed before us by both the sides. The question of burden of proof ceases to have the same importance when the entire evidence is before the Court, each side having placed before it such material as it considers necessary to support its case. But then, the fact that parties have produced their respective data before the Court does not absolve the Court from considering the question whether, on the basis of the entire material before it, the burden can be said to have been discharged, by the party on whom it lies. Besides, counsel engaged themselves into quite some argument over the question of burden of proof and since that question is of importance and arises frequently, it is just as well that we decide it. We propose to decide that question before adverting to the other contentions raised on behalf of the petitioners. 12. It is urged by Shri Jethmalani who appears "on behalf of the Government of Karnataka, as also on behalf of the Bar Council of India who were allowed to intervene in these proceedings, that every statute carries with it a strong presumption of constitutionality and a heavy burden lies upon those who challenge that statute to displace that presumption. 12. It is urged by Shri Jethmalani who appears "on behalf of the Government of Karnataka, as also on behalf of the Bar Council of India who were allowed to intervene in these proceedings, that every statute carries with it a strong presumption of constitutionality and a heavy burden lies upon those who challenge that statute to displace that presumption. In support of this submission, the learned counsel relies principally on the decision of a seven-Judge Bench of this Court in Madhu Limaye v. Sub Divisional Magistrate, Monghyr,4 which, be says, was not noticed in Bachan Singh. The learned Attorney-General (the Solicitor-General became the Attorney General during the hearing of these petitions) also argued that the decisions of this Court have almost uniformly taken the view that the burden to displace the presumption of constitutionality lies on the person who challenges the statute as unconstitutional. 13. Most of the important decisions which have a bearing on the question of burden of proof have been noticed in the majority and minority judgments in Bachan Singh. Sarkaria, J., speaking for the majority, has summed up the position thus: "With regard to onus, no hard and fast rule of universal application in all situations can be deduced from the decided cases. In some decisions, such as Saghir Ahmed v. State of Uttar Pradesh5 and Khyerbari Tea Co. v. Slate of Assam and others6 it was laid down by this Court that if the writ petitioner succeeds in showing that the impugned law ex facie abridges or transgresses the rights coming under any of the sub-clauses of clause (l) of Article 19, the onus shifts on the respondent State to show tha1 the legislation comes within the permissible limits imposed by any of the clauses (2) to (6) as may be applicable to the case, and, also to place material before the court in support of that contention. If the state does nothing in that respect, it is not for the petitioner to prove negatively that it is not covered by any of the permissive clauses. If the state does nothing in that respect, it is not for the petitioner to prove negatively that it is not covered by any of the permissive clauses. "A contrary trend, however, is discernible in the recent decisions of this Court, which start with the initial presumption in favour of the constitutionality of the statute and throw the burden of rebutting that presumption on the party who challenges its constitutionality on the ground of Art. 19." As an instance of the contrary trend, Sarkari a, J., has cited the judgment of Krishna Iyer, J., in B. Banerji v. Anita Pan,7 which reiterates the ratio in Ram Krishna Dalmia8 to the following effect: "...there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles", and "...that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds" Referring to the judgment of this Court in R.M.D.Chamarbaugwala9 and to the first proposition in Chapter III of Seervais Constitutional Law (Page 54, 2nd Edition; page 118, 3rd Edition) Krishna Iyer, J. observed: "We have to remember the comity of constitutional instrumentalities and raise the presumption that the legislature understands and appreciates the needs of the people and is largely aware of the frontiers of and limitations upon its power. Some Courts have gone to the extent of holding that there is a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; and to doubt the constitutionality of a law is to resolve it in favour of its validity." Sarkaria, J" has finally referred to the Seven Judge Bench decision of this Court in Pathumma v. State of Kerala10, in which Fazal Ali, J., speaking for himself, Beg, C.J., Krishna Iyer and Jaswant Singh, JJ., declared the law in the following terms: "It is obvious that the Legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weaker sections of the society and for the improvement of the lot of poor people. The Court will, therefore, interfere in this process only when the statute is clearly violative of the right conferred on the citizen under Part 11 of the Constitution or when the Act is beyond the legislative competence of the legislature or such other grounds. It is for this reason that the Courts have recognized that there is always a presumption in favour of the constitutionality of a statute and the ones to prove its invalidity lies on the party which assails the same in the case of Mohd. Hanif Quareshi v. The State of Bihar11, while adverting to this aspect Das, C.J., as he then was, speaking for the Court observed as follows: "The pronouncements of this Court, further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The Courts, it is accepted, must presume that the Legislature understands and correctly appreciates the needs of it, own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds." As we have said at the outset, these decisions have been discussed in the majority and minority judgments in Bachan Singh. 14. The decision of a Bench of seven Judges on which Shri Jethmalani has placed strong reliance is the one reported in Madhu Umaye. 14. The decision of a Bench of seven Judges on which Shri Jethmalani has placed strong reliance is the one reported in Madhu Umaye. The question which arose for consideration in that case was whether the provisions of section 144 and Chapter VIII of the Code of Criminal Procedure could be said to be in the interests of public order in so far as the right of freedom of speech and expression, the right of assembly, and the right to form associations and unions are concerned and in the interests of the general public in so far as they curtailed the freedom of movement throughout the territory of India. The petitioners and the interveners therein invoked the American doctrine of preferred-position for the fundamental rights, particularly the right to freedom of speech and expression. Hidayatullah, C.J., who spoke for six learned Judges (Bhargava, J. dissenting on another point) reviewed the preferred-position doctrine and concluded that it did not any longer have the support of the Supreme Court of the United States and therefore, in America "unreasonableness of the law has to be established". The learned Chief Justice proceeded to say: "In this Court the preferred-position doctrine has never found ground although vague expressions such as the most cherished rights the inviolable freedoms sometimes occur. But this is not to say that anyone Fundamental Right is superior to the other or that Article 19 contains a hierarchy. Pre-constitution laws are not to be regarded as unconstitutional. We do not state with the presumption that, being a pre-constitution law the burden is upon the State to establish its validity. All existing laws are continued till this court declares them to be in conflict with a fundamental right and, therefore, void. The burden must be placed on those who contend that a particular law has become void after the coming into force of the Constitution by reason of Article 13(1) read with any of the guaranteed freedoms." 15. These decisions on the question of burden of proof must be divided into two categories those which deal with the violation of the equality clause in Article 14 of the Constitution and those others which deal with the violation of the guarantees contained in Article 19. These decisions on the question of burden of proof must be divided into two categories those which deal with the violation of the equality clause in Article 14 of the Constitution and those others which deal with the violation of the guarantees contained in Article 19. The leading decision on the former category of cases is Ram Krishna Dalmia in which Das, C.J formulated six principles as emerging out of an analysis of the cases under Article 14. The passage at page 297 of the Report in which these principles are set out has become a classic and a part of it has already appeared in this judgment as a quotation extracted by Krishna Iyer, Judge in B. Banerji v. Anita Pan. It may bear repetition to say that according to the learned Chief Justice, "there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles" and that, "it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based on adequate grounds." The concluding words of the second of these two principles show that the said principle is limited in its application to cases arising under Article 14. The question of discrimination arises under Article 14 and not under Article 19 of the Constitution. Any case, even a locus classicus, is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical situations, factual and legal, but care must be taken to see that this is not done mechanically, that is without a close examination of the rationale of the decision which is cited as a precedent. Human mind, trained even in the strict discipline of law, is not averse to taking the easy course of relying on decisions which have become famous and applying their ratio to supposedly identical situations. In Ram Krishna Dalmia, the Court was dealing with a challenge to section 3 of the Commissions of Inquiry Act, 1952 and the notification issued by the Central Government under that section appointing a Commission of Inquiry to inquire into and report on the affairs of certain companies. In Ram Krishna Dalmia, the Court was dealing with a challenge to section 3 of the Commissions of Inquiry Act, 1952 and the notification issued by the Central Government under that section appointing a Commission of Inquiry to inquire into and report on the affairs of certain companies. The Act was challenged on the ground that it conferred an arbitrary power on the Government to issue notifications appointing Commissions of Inquiry, while the notification was challenged on the ground that the petitioners and their companies were arbitrarily singled out for the purpose of hostile and discriminatory treatment and subjected to a harassing and oppressive inquiry. The principles enunciated by the learned Chief Justice on behalf of the Court have to be understood in the context of these facts, the context being that the case before the Court involved considerations limited and germane to the application of Article14. Apart from certain other questions which are not relevant for our purpose, the entire discussion of the facts and law in that judgment revolving round the provisions of that Article. Indeed, Article 14 is the king-pin of the decision in Ram Krishna Dalmia. It is wrong to treat the principles enunciated by the learned Chief Justice as of universal application and, in that process, to apply them to cases arising under other articles of the constitution, particularly Articles 19 and 21. 16. The principle which underlies Article 14 is that equals must be treated equally, that is to say, that "laws must operate equally on all persons under the circumstances. Article 14, though apparently absolute in its terms, permits the State to pass a law which makes a classification, so long as the classification is based on intangible differentia having a real nexus with the object which is sought to be achieved by the law. In the generality of cases under Article 14, the challenge is based on the allegation that the impugned provision is discriminatory since it singles out the petitioner fur hostile treatment, from amongst persons who, being situated similarly, belong to the same class as the petitioner. It is plain that in matters of this nature, the petitioner has to plead and prove that there are others who are situated similarly as him and that he is singled out and subjected to unfavourable treatment. As observed by Shah, Judge in West U. P. Electric Power and Supply Co. It is plain that in matters of this nature, the petitioner has to plead and prove that there are others who are situated similarly as him and that he is singled out and subjected to unfavourable treatment. As observed by Shah, Judge in West U. P. Electric Power and Supply Co. Ltd. v. State of U.P.12: "Article 14 of the Constitution ensures equality among equals: its aim is to protect persons similarly placed against discriminatory treatment. It does not however operate against rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatment had no reasonable relation to the object sought to be achieved by the law." Whether there are other persons who, are situated similarly as the petitioner is a question Seervais Constitutional Law of India, Third Edition, p. 296 of fact. And whether the petitioner is subjected to hostile discrimination is also a question of fact. That is why the burden to establish the existence of these facts rests on the petitioner. To cast the burden of proof in such cases on the State is really to ask it to prove the negative that no other persons are situated similarly as the petitioner and that, the treatment meted out to the petitioner is not hostile. 17. Thus, there is a fundamental distinction between cases arising under Article 14 and those which arise under Articles 19 and 21 of the Constitution. In a challenge based on the violation of Articles 19 and 1, the petitioner has undoubtedly 10 plead that, for example, his right to free speech and expression is violated or that he is deprived of his right to life and personal liberty. But once he shows that, which really is not a part of the "burden of proof", it is for the State to justify the impugned law or action by proving that, for example, the deprivation of the petitioners right to free speech and expression is saved by clause (21 of Article 19 since it is in the nature of a reasonable restriction on that right in the interests of matters mentioned in clause (2), or that, the petitioner has been deprived of his life or personal liberty according to a just, fair and reasonable procedure established by law. In cases arising under Article 19, the burden is never on the petitioner to prove that the restriction is not reasonable or that the restriction is not in the interests of matters mentioned in clause (2), Likewise, in cases arising under Article 21, the burden is never on the petitioner to prove that the procedure prescribed by law which deprives him of his life or personal liberty is unjust, unfair or unreasonable. That is why the ratio of cases which fall under the category of the decision in Ram Krishna Dalmia must be restricted to those arising under Article P and cannot be extended to cases arising under Article 19 or Article 21 of the Constitution. 18. Saghir Ahmed v. The State of U.P., is a typical instance of a case arising under Article 19 of the Constitution. The U. P. Road Transport Act, 1951 which was passed prior to the First Amendment to the Constitution which introduced clause (6) in Article 19, was challenged in that case on the ground that it conflicted with the fundamental right of the petitioner guaranteed under Article 19(1)(g) of the Constitution. Dealing with the question of burden of proof Mukherjea, J., who spoke for the Constitution Bench, stated the position thus:- "With regard to the second point also we do not think that the learned Judges have approached the question from the proper stand point. There is undoubtedly a presumption in favour of the constitutionality of a legislation. But when the enactment on the face of it is found to violate a fundamental right guaranteed under Article 19(1)(g) of the Constitution, it must be held to be invalid unless those who support the legislation can bring it within the purview of the exception laid down in clause (6) of the article. If the respondents do not place any materials before the Court to establish that the legislation comes within the permissible limits of clause (6), it is surely nut for the appellants to prove negatively that the legislation was not reasonable and was not conducive to the welfare of the community." (Page 726) 19. When the enactment on the face of it is in violation of a fundamental right guaranteed by Article 19, the petitioner is absolved even of that modicum of an obligation to show that a right guaranteed to him by Article 19 is violated. When the enactment on the face of it is in violation of a fundamental right guaranteed by Article 19, the petitioner is absolved even of that modicum of an obligation to show that a right guaranteed to him by Article 19 is violated. When the face of the law is not so clear, the petitioner does have to discharge the obligation of proving the fact of deprivation. But, that only and nothing more. 20. A similar question arose in Khyerbari Tea Co. Ltd. v. The State of Assam, where The Assam Taxation (on Goods carried by road or on Inland Waterways) Act, 1961 was challenged on the ground that it placed unreasonable restrictions on the freedom of trade guaranteed by Article 301 and infringed the provision of Article 19(1)(g) of the Constitution. The Act was upheld by a Constitution Bench of this Court by a majority of 4 to 1. Gajeodragadkar, J., who spoke for the majority, relied on the decision in Saghir Ahmed and said: “It is true that on several occasions, this Court has generally observed that a presumption of constitutionality arises where a statute is impeached as being unconstitutional, but as has been held in the case of Saghir Ahmed in regard to the fundamental right under Article 19(1)(g), as soon as the invasion of the right is proved, it is for the State to prove its case that the impugned legislation falls within clause l6) of Article 19. The position may be different when we are dealing with Article 14, because under that Article the initial presumption of constitutionality may have a larger sway inasmuch as it may place the burden on the petitioner to snow that the impugned law denied equality before the law, or equal protection of the laws. We may in this connection refer to the observations made by this Court in the case of Hamdard Dawakhana v. Union of India.13 Another principle which bas to be borne in mind in examining the constitutionality of a statute, it was observed, is that it must be assumed that the legislature understands and appreciates the needs of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment. It is significant that ail the decisions to which reference is made in support of this statement of the law are decisions under Article 14 of the Constitution. Mr. Setalvad has fairly conceded that in view of the decision of this Court in the case of Saghir Ahmed it would not be open to him to contend that even after the invasion of the fundamental right of a citizen is proved under Article 19(1)(g), the onus would not shift to the State. In our opinion, the said decision is a clear authority for the proposition that once the invasion of the fundamental right under Article 19(1) is proved, the State must justify its case under clause (6) which is in the nature of an exception to the main provisions contained in Article 19(1). The position with regard to the onus would be the same in dealing with the law passed under Article 304(b). In fact, in the case of such a law, the position is somewhat stronger in favour of the citizen, because the very fact that a law is passed under Article 304(b) means clearly that it purports to restrict the freedom of trade. That being so, we think that as soon as it is shown that the Act invades the right of freedom of trade, it is necessary to enquire whether the State has proved that the restrictions imposed by it by way of taxation are reasonable and in the public interest within the meaning of Article 304(b). This enquiry would be of a similar character in regard to clause (6) of Article 19." (pp. 1003-4). (emphasis supplied). 21. The observations made by the Gajendragadkar, J., in regard to the position arising under Article 304(b) are opposite to cases under Article 21. This enquiry would be of a similar character in regard to clause (6) of Article 19." (pp. 1003-4). (emphasis supplied). 21. The observations made by the Gajendragadkar, J., in regard to the position arising under Article 304(b) are opposite to cases under Article 21. Article 304(b) provides that, notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law "impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest" According to the learned Judge, in the case of a law passed under Article 304(b), the position on the question of burden of proof is somewhat stronger in favour or the citizen, because the very fact that the law is passed under that Article means clearly that it purports to restrict the freedom of trade. By analogy the position is also somewhat stronger in favour of the petitioners in cases arising under Article 21, because the very fact that, in defence, a law is relied upon as prescribing a procedure for depriving a person of his life or personal liberty means clearly that the law purports to deprive him of these rights. Therefore, as soon as it is shown that the Act invades a right guaranteed by Article 21, it is necessary to enquire whether the State has proved that the person, has been deprived of his life or personal liberty according to procedure established by law, that is to say, by a procedure which is just, fair and reasonable. 22. Another decision in the same category of cases is Mohd. Faruk v. State of Madhya Pradesh,14 in which the State Government issued a notification canceling the confirmation of the Municipal bye-laws in so far as they related to the permission to the slaughtering of bulls and bullocks. Dealing with the challenge of the petitioner to the notification on the ground that it infringed his fundamental right under Article 19(1) g) of the Constitution Shah, J., who spoke for the Constitution Bench, observed: "When the validity of a law placing restriction upon the exercise of fundamental rights in Article 19(1) is challenged, the onus of proving to the satisfaction of the Court that the restriction is reasonable lies upon the State.......... Imposition of restriction on the exercise of a fundamental right may be in the form of control or prohibition but when the exercise of a fundamental right is prohibited, the burden of proving that a total ban on the exercise of the right alone may ensure the maintenance of the general public interest lies heavily upon the State." (pp.160-161) When, in a matter arising under Article 21, the person aggrieved is found to have been totally deprived of his personal liberty or is being deprived of his right to life, the burden of proving that the procedure established by law for such deprivation is just fair and reasonable lies heavily upon the State. 23. This discussion will be incomplete without a close examination of the decisions of this Court in B. Banerjee v. Anita Pan and Pathumma v. State of Kerala, which have been referred to by Sarkaria, J., in Bachan Singh as evidencing a "contrary trend" according to which, even in regard to cases under Article 19, there is an initial presumption in favour of the constitutionality of the statute and the burden of rebutting that presumption lies on the person who asserts that the statute is unconstitutional In B. Banerjee, a three-Judge Bench of this Court had to consider the question whether sub section (3A) which was introduced in section 13 of the West Bengal Premises Tenancy Act, 1956 was violative of Article 19(1)(f) of the Constitution. By the newly introduced sub-section, the transferee of a property cannot file an eviction suit against his tenant for a period of three years from the date of transfer, on the grounds mentioned in clauses (f) and (ff) of section 13(1) of the Act. We have already extracted the relevant passage from the judgment of Krishna Iyer, J., who spoke for the Court in that case. The learned Judge said that a presumption had to be raised that the legislature understands and appreciates the needs of the people and that some courts had gone to the extent of holding that because of the presumption of constitutionality which every statute carries with it, the law will not be declared unconstitutional unless the case is so clear as to be free from doubt. The learned Judge added, citing Seervai, that "to doubt the constitutionality of a law is to resolve it in favour of its validity". The learned Judge added, citing Seervai, that "to doubt the constitutionality of a law is to resolve it in favour of its validity". With great respect, the judgment in B. Bunerjee overlooks the binding decisions in Saghir Ahmed, Khyerbari Tea Co. and Mohd. Furuk which are directly in point. Not only are binding decisions not referred in the judgment but, in support of the view propounded by the Court Krishna Iyer, J., has cited the decision in Ram Krishna Dalmia which, as we have stated earlier, must be limited in its application to cases arising under Article 14 of the Constitution. To apply mechanically the decisions under Article 14 to cases arising under Article 19 is to ignore the significant distinction between the nature of the right conferred by the two articles and their purport and content. B. Banerjee cannot therefore be regarded as an authority for the proposition contended for by the learned Attorney-General Evidently the landlords contention that a beneficent provision, aimed at the protection of tenants harassed by motivated transfers of properties, was unconstitutional evoked a stern response. That is understandable. But, in the process of highlighting the need for social welfare legislation in the area of landlord-tenant relationship, the distinction between Article 14 and Article 19 in so far as it bears upon the question of burden of proof failed to receive any attention. The Bar too would seem not to have drawn the attention of the Court to that distinction and to the judgments which we have discussed a little earlier. 24. Pathumma is a seven-Judge Bench decision on the question whether the restrictions imposed by the Kerala Agriculturists (Debt Reid) Act, 1970 violate Article 19(1)(f) and Article 14. The appellants therein challenged section 20 of the Act particularly which entitles agricultural debtors to recover properties sold in execution of decrees passed against them. Fazal Ali J., who spoke for four out of the seven learned Judges, refers at the outset of the judgment to the "approach which a Court has to make and the principles by which it has to be guided in such matters". Fazal Ali J., who spoke for four out of the seven learned Judges, refers at the outset of the judgment to the "approach which a Court has to make and the principles by which it has to be guided in such matters". After stating that the Courts must interpret the Constitution: "against the social setting of the country so as to show a complete consciousness and deep awareness of the growing requirements of the society, the increasing needs of the nation the burning problems of the day and the complex issues facing the people which the legislature in its wisdom, through beneficial legislation, seeks to solve". the learned Judge observes that since the legislature is in the best position to understand and appreciate the needs of the people, the Courts have recognized that there is "always" a presumption in favour of the constitutionality of a statute and the onus to prove its invalidity lies on the party which assails the same. In support of this proposition, the learned Judge relied upon the decision of this Court in Mohd. Banif Quareshi v. The State of Bihar in which Das, C.J., restated the two propositions which were enunciated in Ram Krishna Dalmia. 25. We find it difficult to read the observations made by Fazal Ali, J., on behalf of the four learned Judges as on authority on the question of burden of proof in cases arising under Article 19 of the Constitution. It is true that section 20 of the Kerala Act of 1970 was challenged on the ground that it violates Article 19(1)(f) but it must be emphasized that it was also challenged on the ground that sub sections (3) and (6) thereof were violative of Article 14. The observations made by the learned Judge and the statement of law contained in his judgment would certainly apply to cases arising under Article 14, for reasons which we have already discussed. It is reasonable to suppose that if by the use of the word "always", it was intended to lay down rules as to burden of proof in regard to cases arising under Article 19 also, some reference would have been made by the learned Judge to the Constitution Bench decisions in Saghir Ahmed. Khyabari Tea Co. and Mohd. Faruk. It is reasonable to suppose that if by the use of the word "always", it was intended to lay down rules as to burden of proof in regard to cases arising under Article 19 also, some reference would have been made by the learned Judge to the Constitution Bench decisions in Saghir Ahmed. Khyabari Tea Co. and Mohd. Faruk. The fact that these decisions have not been referred to supports the inference that the observations made by the learned Judge at the outset of the judgment are of a general nature, not intended to apply to cases arising under Art. 19 of the Constitution. The Court, as we have said was, also dealing with a challenge under Art. 14 and the weighty observations made by the learned Judge would apply to the arguments arising under that provision. 26. In support of the principles set out by him, Fazal Ali, J, relied upon the decision of a Constitution Bench of this Court in Mohd. Hanif Quareshi. In that case, laws passed by the States of Bihar, U.P. and Madhya Pradesh banning the slaughter of certain animals were challenged by the petitioners on the ground that those laws violated the fundamental rights guaranteed to them by Articles 14, 19(l) and 25 of the Constitution. The Court, speaking through Das, C.J., first disposed of the preliminary question raised by Pandit Thakurdas Bhargava that since the impugned Acts were passed in discharge of the obligation laid on the state by the Directive Principle contained in Article 48, no grievance could be made that those laws violated the fundamental rights conferred on the petitioners by Chapter III of the Constitution. The Court rejected the preliminary objection and turned to the second question a to whether the laws passed by the Legislatures of the three States violated the provisions of Article 25(1) of the Constitution. After rejecting that contention also, the Court took up for consideration the argument of the petitioners as regards "the denial of the equal protection of the law" to them. The petitioners argument was that the impugned Acts prejudicially affected only the Muslim Kasais who kill cattle but not others who kill goats and sheep and therefore those Acts were violative of Article 14 of the Constitution. The petitioners argument was that the impugned Acts prejudicially affected only the Muslim Kasais who kill cattle but not others who kill goats and sheep and therefore those Acts were violative of Article 14 of the Constitution. It is while dealing with this contention that the learned Chief Justice made observation which have been extracted by Fazal Ali, J. The observations made by the learned Chief Justice regarding the presumption of constitutionality and the burden being upon the person who attacks it are specifically made in the context of Article 14 as in Ram Krishna Dalmia. We are therefore of the opinion that the principles stated by Fazal Ali. J, on the question of burden of proof in Pathumma may apply to cases arising under Article 14 but not to those arising under Articles 19 and 21 of the Constitution. In fact, in Laxmi Khandsari v. State of U.P.15 Fazal Ali, J., sitting with Kaushal. J. said that It is no doubt well established that when a citizen complains of the violation of a fundamental right conferred by Article 19, the onus is on the State to prove "by acceptable evidence, inevitable consequences or sufficient materials" that the restriction is reasonable. 27. Bhagwati. J., in his dissenting opinion in Bachan Singh has expressed the view that the observations made by Krishna Iyer, J., in B. Banerjee and by Fazal Ali, J. in Pathumma cannot apply to cases arising under Articles 19 and 21 of the Constitution. We respectfully agree with that view. 28. The seven-Judge Bench decision in Madhu Limaye on which Shri Jethmalani relies, involved a challenge to section 144 and Chapter VIII of the Code of Criminal Procedure on the ground that those provisions violated clauses (a), (b), (c) and (d) of Art. 19 of the Constitution. We have already extracted the passage from the judgment delivered in that case by Hidayatullah, C.J., on which the learned counsel relies. That passage shows that the Court was considering the argument advanced by the petitioners that the preferred-position doctrine, which was said to be in vogue to America, was applicable in India. We have already extracted the passage from the judgment delivered in that case by Hidayatullah, C.J., on which the learned counsel relies. That passage shows that the Court was considering the argument advanced by the petitioners that the preferred-position doctrine, which was said to be in vogue to America, was applicable in India. The argument was that, according to that doctrine, any law restricting the freedom of speech and expression religion or assembly must be taken on its face to be invalid till it was proved to be valid Holding that the doctrine did not have the support of even the American Supreme Court any longer and that the court reasonableness of the law had to be established, the learned Chief Justice observed: "We do not state with the presumption that being a "re-constitution law, the burden in upon the State to establish its validity". Therefore, according to the learned Chief Justice "the burden must be placed on those who contend that the particular law has become void after coming into force of the Constitution by reason of Article 13(1) read with any of the guaranteed freedoms", (emphasis supplied in both the quotations). These observations may at first blush seem to support Shri Jethmalanis contention but, as we have stated earlier, it is wrong to extend the observations made in one context to an entirely different context. The question which was considered in Madhu Limaye was whether certain provisions of the Code of Criminal Procedure, which is a pre-constitution law, are violative of the Constitution. The contention was that the Code of Criminal Procedure is a pre-Constitution Law and therefore the State must justify the constitutionality of that law. That argument was rejected with the observation that "we cannot start with the presumption that a pre-Constitution law is unconstitutional and therefore the burden lies upon the State to establish its validity". The specific observation on the question of burden to the effect that the burden lies on those who challenge the constitutionality of a law, is also made expressly in regard to the provisions of Article 13(l) of the Constitution which provides that the laws which were in force before the commencement of the constitution shall, in so far as they are inconsistent with the provisions of Part III, be void to the extent of such inconsistency. Shri Jethmalani is right that Madhu Limaye was not noticed in Bachan Singh, but we arc unable to accept his contention that the decision is an authority for the proposition that the same rule of burden of proof must apply to all constitutional challenges, whether under Articles 14, 19 or 21 of the Constitution. 29. We must hark back to Bachan Singh "with which we began the discussion of the question as regards the burden of proof. Sarkaria, J. observed in the majority Judgment that "with regard to the onus, no hard and fast rule of universal application in all situations could be deduced from the decided cases". We have made a modest attempt to show that cases arising under Article 14 are governed by a rule as to burden of proof which is different from the rule which applies to cases arising under Articles 19 and 21 of the Constitution. In that sense, it is true to say that there is no hard and fact rule of universal application which can be applied alike to all situations. We have also dealt with the two decisions in B. Banerjee and Pathumma which the Court had evidently in mind when it spoke of a "contrary trend" which was discernible in the later decisions of the Court. After referring to the Indian and the American cases bearing on the subject, the majority recorded its conclusion by saying that "the State has discharged its burden" to establish that death penalty serves as a deterrent, by producing the necessary data. We are referring to this aspect of the decision in Bachan Singh in order to show that the judgment of the majority proceeded on the basis that the burden of proving the constitutionality of section 302 was on the State and that the State had successfully discharged that burden. Thus, Bachan Singh is an authority for the proposition that in cases arising under Article 21 of the Constitution, if it appears that a person is being deprived of his life or has been deprived of his personal liberty, the burden rests on the State to establish the constitutional validity of the impugned law. 30. That disposes of the question of burden of proof. 30. That disposes of the question of burden of proof. In the light of this discussion, we must proceed to examine the question whether the State has discharged the burden of proving that the provisions of section 354 (5) of the Code of Criminal Procedure are in conformity with the mandate of Article 21. Consistently with the conclusion which we have recorded on the question of burden of proof, we must hold that the burden does not lie on the petitioners to prove that the procedure prescribed by the aforesaid provision for taking life is unjust, unfair or unreasonable. The impugned statute, on the face of it, provides for a procedure for extinguishing life. Therefore, not even the initial obligation to show the fact of deprivation of life or liberty rests on the petitioners. The State must establish that the procedure prescribed by section 354 (5) of the Code for executing the death sentence is just, fair and reasonable. That burden includes the obligation to prove that the said procedure is not harsh, cruel or degrading. 31. Has the State discharged this heavy onus? We have already set out the grounds on which the petitioners challenge the constitutionality of section 354 (5) or the Code of Criminal Procedure which provides that "When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead", Stated briefly, the contention of the petitioners is that section 354 (5) of the Code is bad because: It is impermissible to take human life even under the decree of a Court since it is inhuman to take life under any circumstances; By reason of the provision contained in Article 21, it is impermissible to cause pain or suffering of any kind whatsoever in the execution of any sentence, much more while executing a death sentence. The method of hanging prescribed by section 354 (5) for executing the death sentence is barbarous, inhuman and degrading; and, It is the constitutional obligation of the State to provide for a human and dignified method for executing the death sentence, which does not involve torture of any kind. If the method prescribed by section 354 (5) does not meet this requirement, no death sentence can be executed since, no other method for executing that sentence is prescribed by or is permissible under the law. If the method prescribed by section 354 (5) does not meet this requirement, no death sentence can be executed since, no other method for executing that sentence is prescribed by or is permissible under the law. These arguments are answered by the learned Attorney General by contending that a sentence lawfully imposed by a Court can and has to be executed, though by causing the least pain and suffering and by avoiding torture or degradation of any kind; that the method prescribed by section 354 (5) for executing the death sentence is a humane and dignified method which involves at least amount of pain and cruelty; that no other method of executing the death sentence is quicker or less painful; that Article 21 does not postulate that no pain or suffering whatsoever shall be caused in the execution of a sentence lawfully imposed by a Court, including the sentence of death; and that, since the method of hanging prescribed by section 354 (5) does not suffer from any constitutional infirmity, the question of the Court substituting that method by any other method does not arise for consideration. 32. While supporting these arguments of the Attorney General, Shri Ram Jethmalani added that unless, on the face of it, the method prescribed by law for executing a sentence is revolting to the conscience, the Courts must surrender their discretion to the legislative judgment when the challenge to the constitutionality of the law is based on considerations which the Court is not equipped to evaluate by manageable judicial standards According to the learned counsel, the Courts evaluation of the method of lunging prescribed by law shall have to be inevitably subjective, almost to the point of being legislative m character, which must be avoided at all costs. The legislature has recognized means at its command for self education like the Law Commissions, the expression of public opinion, the result of scientific investigations, the sociological advance and, last but not the least, the unfettered freedom available to the legislators to discuss matters of moment on the floor, of the House and to keep them under constant scrutiny. "Hands off the Hanging" is the sum and substance of Shri Jethmalanis argument. 33. New dimensions were added to these arguments by the other learned counsel. "Hands off the Hanging" is the sum and substance of Shri Jethmalanis argument. 33. New dimensions were added to these arguments by the other learned counsel. For example, Shri Salman Khurshid advocated that instead of putting out life for ever by executing the death sentence, persons sentenced to death should be deprived of their eye sight by blinding them so that, if and when they are reformed, they could be given back their sight by transplantation or by whatever method medicine may discover for restoring the “eye sight" In the meanwhile, says counsel, justice shall have been done. 34. First, as to Shri Jethmalani's argument that we should leave to the legislative wisdom the question as to how best the death sentence should be executed and that we should not project our subjective views into the decision of that question. We find it impossible to accept this argument. Matters of policy are certainly for the legislature to consider an therefore, by what mode or method the death sentence should be executed, is for the legislature to decide. As stated in Gregg v. Georgia,16 in a democratic society legislatures, not Courts, are constituted to respond to the moral values of the people. But the function of the legislature ends with providing what it considers to be the bet method of executing the death sentence. Where the function of the legislature ends, the function of the judiciary begins. It is for the Courts to decide upon the constitutionality of the method prescribed by the legislature for implementing or executing a sentence. Whether that method conforms to the dictates of the Constitution is a matter not only subject to judicial review but constitutes a legitimate part of the judicial function. As Judges, we cannot abdicate the obligation imposed upon us by the Constitution and throw our hands in despair with the consolation that after all, the chosen representatives of the people have wined that hanging is the best method of exercising the death sentence. We respect the judgment of the people's representatives to the extent, but only to the extent, that as a matter of policy they considered that the method of hanging provided by section 354 (5) of the Code is the least objectionable method for executing the death sentence. We respect the judgment of the people's representatives to the extent, but only to the extent, that as a matter of policy they considered that the method of hanging provided by section 354 (5) of the Code is the least objectionable method for executing the death sentence. But, what the policy judgment of the legislature leaves outstanding for the Court's consideration is the question whether the particular method prescribed by law for executing the death sentence is in consonance with the Constitution. This latter question is manifestly for the courts to decide. The decision of that question inevitably involves a value judgment based upon a comparative evaluation of alternate methods for executing the death sentence but, more than any such comparative evaluation, our plain and primary duty is to examine whether, even if the method selected by the legislature is the least objectionable, it is still open to the objection that it involves undue torture, degradation and cruelty as, for example, by coming more pain than is strictly necessary or by bringing about a lingering death or because the particular method is liable, frequently, to fail in its mechanism. Our task will end with pointing out why, if at all, the method at present provided by law is contrary to the mandate of the Constitution, even if it be less objectionable than any other commonly accepted method of executing the death sentence. We will not legislate by directing that single, if at all, the provision contained in section 354 (5) is unconstitutional, the death sentence imposed upon the petitioners shall be executed by the method of electrocution or gas-chamber or lethal injection or shooting or gilloutine and the like. Nor can we direct, as canvassed by Shri Khurshid, that the petitioners be temporarily blinded. That would be legislating. To pronounce upto the constitutionality of a law is not legislating, even if such pronouncement involves the consideration of the evolving standard of the society. 'Cruelty' and 'torture' are not static concepts. That is why, the chopping off of limbs which was not considered cruel centuries ago or, is not considered cruel in some other parts of the world to-day, is impossible to conceive as a punishment by applying the contemporary standards of the Indian society. What might not have been regarded as degrading or inhuman in days by gone may be revolting to the new sensitivities which emerge as civilization advances. What might not have been regarded as degrading or inhuman in days by gone may be revolting to the new sensitivities which emerge as civilization advances. The impact and influence of the awareness of such sensitivities on the decision of the law's validity is an inseparable constituent of the judicial function. 35. This Court is not a third Chamber of the legislature. It has no such extraterritorial ambitions and it does not aspire to do the job of 'out-riders', to use an expression of Lord Devlin. It is simply the highest Court of law and justice in a country governed by a written Constitution, which, it is its primary and exclusive function to interpret. The care which we 'must take is that while interpreting the laws and the Constitution, we ought not to be swayed by passing passions or by populist sentiments. We must do our duty by the Constitution, unaffected by extraneous considerations and guided solely by the obligation to be fair and just, almost to a fault. 36. The State seeks to discharge its burden by relying upon the Reports of Commissions which are based on results of scientific investigation into the mechanics of the hanging process, the opinions of text-book writers, the predictions of sociologists, the proclivities of reformers and, of course, juristic exposition of the complex issue "to hang or not to hang". To some of these we must now turn. 37. In the year 1949 the Government of United Kingdom appointed a Commission to report upon the various facets of the capital punishment. The Commission submitted its report in September 1953 after extensive research into the questions referred to it and after interviewing experts, visiting jails and examining the merits and demerits of hanging as a method for executing the death sentence. Chapter 13 of the Royal Commission's Report deals with the "Methods of Execution". In paragraph 700 of that Chapter the Commission records that it heard evidence on the existing method of hanging from various witnesses including Prison Commissioners and Prison officials, one Mr. A. Pierepoint, "the most experienced executioner in this counter and under-sheriffs responsible for execution London and Lancashire. The Commission inspected execution chambers in England and Scotland and was given demonstrations of the procedure' at an execution. They also received evidence about executions in the United States by means of electrocution and lethal gas. A. Pierepoint, "the most experienced executioner in this counter and under-sheriffs responsible for execution London and Lancashire. The Commission inspected execution chambers in England and Scotland and was given demonstrations of the procedure' at an execution. They also received evidence about executions in the United States by means of electrocution and lethal gas. During their visit to the United States, they took the opportunity of inspecting the electric chair in two prisons. Lastly, they questioned medical witnesses about possible new methods of execution. 38. In paragraph 703 of the Report the Commission notes that public opinion was disturbed by evidence that the task of hanging was sometimes bungled. In 1885 a condemned murderer had to be reprieved after three unsuccessful attempts had been made to hang him. There were also other (untoward occurrences). Occasionally, a man might be given too short a drop and die slowly of strangulation, or too long a drop and be decapitated. A Committee was therefore appointed in U.K. in 1886 to report on the best way of ensuring "that all executions may be carried out in a becoming manner without risk of failure or miscarriage in any respect". This Committee made recommendations about the length of drop, improvements in the apparatus and preliminary tests and precautions which were designed to ensure speedy and painless death by dislocation of the vertebrae without decapitation. The improved system or hanging now in vogue came into being as a result of the recommendations of this Committee. The Home Office informed the Commission that there is no record during the present century of any failure or mishap in connection with an execution, and, as now carried out, execution by hanging can be regarded as speedy and certain". 39. In paragraph 704 of the Report, the Commission says that it was "on the score of humanity" that execution by banging with defended by witness after wil1ess. The Prison Officers held the system of hanging to be as humane as circumstances permit, while the Prison Medical Officers said "We cannot conceive any other method which would be more humane efficient or expeditious than judicial hanging. The Prison Chaplains called it "simple, humane and expeditious," The British Medical Association told the Commission that "hanging is probably as speedy and certain as any other method that could be adopted. The Prison Chaplains called it "simple, humane and expeditious," The British Medical Association told the Commission that "hanging is probably as speedy and certain as any other method that could be adopted. The Royal Medico-Psychological Association, after stating that the method of execution ought to be "certain, humane, simple, instantaneous and expeditious," said "On the information available to the Association, the method' of "hanging fulfils these criteria more satisfactorily than any other so far proposed or in practice"; A knowledgeable witness told the Commission that the method of hanging was "certain, painless, simple, human and expeditious." 40. In paragraph 705 of the Report, the Commission refers to the interesting development that the method of execution whose special merit was originally thought to be that it was peculiarly degrading and therefore deterrent, was defended before it on the ground that it was uniquely humane. The reason for this surprising inversion is that 2 result of the recommendations made by the Committee which was appointed in 1886, a method originally barbarous has been successfully humanized." 41. In paragraph 708, the Commission proceeds to examine the question whether there is any seemly and practicable method of execution which is as painless as hanging or even more speedy, or which, even though it may have no advantage over hanging in those respects, is free from the degrading associations of that method. If capital punishment were being introduced for the first time, the Commission considered it unlikely that hanging would be chosen as a method for executing the death sentence. The Commission, however, found that no useful purpose would be served by making experiments unless the necessity was urgent or the utility evident. And this applied with special force to a subject which was highly charged emotionally and was exceptionally controversial. 42. In paragraph 709, the Commission refers to five methods of execution of the death sentence which were then in vogue in the different parts of the world. Electrocution was in vogue in 23 States of U.S.A. Guillotine in France and Belgium, Hanging in England, Scotland, the Commonwealth countries and to States of U.S.A., and lethal gas in 8 States of U.S.A. shooting was in vogue in the State of Utah in America which allowed a choice between hanging and shooting. Electrocution was in vogue in 23 States of U.S.A. Guillotine in France and Belgium, Hanging in England, Scotland, the Commonwealth countries and to States of U.S.A., and lethal gas in 8 States of U.S.A. shooting was in vogue in the State of Utah in America which allowed a choice between hanging and shooting. Besides, shouting was used in almost every country as a method of execution of persons sentenced to death for offences against the Military Code. 43. Rejecting Guillotine and shooting as methods for executing the death sentence for the reason that the former produces mutilation and the later is inefficient, uncertain and unacceptable as a standard method of civil executions, the Commission examined the mechanics of hanging in paragraphs 711 to 716 of its Report. Paragraph 714, which is relevant for our purpose, shows that a valuable memorandum was submitted to the Commission by the Coroner for the Northern District of London, at whose instance many post-mortem examinations following upon hanging were made by the late Sir Bernard Spilsbury, a distinguished man of medicine who had figured as a witness in many important trials, and other highly qualified pathologists. The coroner, Mr. Bentley Purchase, had access to the records of such post-mortem examinations. The memorandum showed that the effective cause of death in 58 executions at two orisons was "fracture dislocation of cervical "vertebrae with laceration or crushing of the cord" and that any such dislocation causes immediate unconsciousness, there being no chance of later recovery of consciousness since breathing is no longer possible. The beating of the heart thereafter for any time up to 20 minutes is a purely automatic function to the words of the Coroner: 'I have no doubt of the efficacy and immediate and painless finality of the present method of judicial execution," 44. After examining the mechanics of the methods of electrocution and lethal gas in paragraphs 717 to 722, the Commission considers the question as to whether electrocution or lethal gas was preferable to hanging on considerations of "humanity, certainly and decency." 45. After examining the mechanics of the methods of electrocution and lethal gas in paragraphs 717 to 722, the Commission considers the question as to whether electrocution or lethal gas was preferable to hanging on considerations of "humanity, certainly and decency." 45. The Commission observes in paragraph 724 that the requirements of humanity are essentially two: (1) That the preliminaries to the acts of execution should be as quick and as simple as possible, and free from anything that unnecessarily sharpens the poignancy of the prisoners apprehension, and (2) that the Act of execution should produce immediate unconsciousness passing quickly into death. Paragraph 725 contains a comparative table showing the length of time taken by the preliminaries in electrocution, lethal gas and hanging. On the basis of that comparative analysis, the Commission records its conclusion in paragraph 726 that; there was 'no room for doubt' that in the matter of time taken by the preliminaries, hanging was superior to either electrocution or lethal gas. In all the three methods the prisoner had to be restrained in some way or the other prior to the execution but, in electrocution the execution is preceded by shaving and handcuffing while, in lethal gas the prisoner has to be stripped of his clothes except a pair of shorts, in order that pockets of gas may not persist in the clothes. In addition, a stethoscope head has to be strapped to the chest under the lethal gas method. 46. On the question of "certainty", the Commission observes in paragraph 729 of its Report that the equipment required for hanging is simpler than that which is required for electrocution or execution by lethal gas. The lethal chamber is a complicated piece or mechanism while the electric chair' depends for its efficacy upon the supply of electricity which is usually taken from commercial sources. In fact, in the United States, executions by electrocutions were occasionally delayed by failure of the power. The Commission recorded its conclusion by saying that neither electrocution nor lethal chamber had any advantage over hanging, in so far as the requirement, of "certainty" is concerned. 47. In paragraph 732, the Commission deals with the third aspect, namely, "Decency" in execution of the death sentence. The Commission recorded its conclusion by saying that neither electrocution nor lethal chamber had any advantage over hanging, in so far as the requirement, of "certainty" is concerned. 47. In paragraph 732, the Commission deals with the third aspect, namely, "Decency" in execution of the death sentence. It says that while considering this aspect it had kept two things in mind: Firstly, the obligation which obviously rests on every civilized State to conduct its judicial executions with decorum, and, secondly, that judicial execution should be performed without brutality, that it should avoid gross physical 'violence, and should not mutilate’ or distort the body. The Commission records its conclusion by saying that in so far as the requirement of decency is concerned, the other two methods have an advantage over hanging though, all the three methods were now used with all the decency possible in the circumstances. 48. The Commission records its final conclusion in paragraph 734 of the Report by saying that after weighing all the factors careful1y and bearing in mind that the onus of proof was on the advocates of change, it could not recommend that either electrocution or gas chamber should replace hanging 'as a method of judicial execution. In the matter of humanity and certainty, the advantage lay with the system of hanging in regard to one aspect of the requirement of decency the other two methods were preferable. But, according to the Commission, that advantage could not be regarded as enough to turn the scale. 49. The counter-affidavit filed on behalf of the Government of India by Shri P. S. Ananthanarayanan. Under Secretary, Ministry of Home Affairs, shows that the Director General of Health Services, who is the highest adviser to the Government of India in these and allied matters, was consulted on the question whether the system of hanging which is prevalent in India for executing the death sentence should be changed. The D.G. H. S. advised as follows: "Subject:-Mode of ending the life of a convict sentenced to death. Continuation this' Directorate U.O. No. 31-204/55-Mf, dated the 10th April, 1956, on the above subject. This Directorate has consulted the Administrative Medical Officers, Chemical examiners, other criminologists and experts, etc. on the subject and the-views expressed by them fall into the following groups: (1) Those who consider the present method of hanging being the best. Continuation this' Directorate U.O. No. 31-204/55-Mf, dated the 10th April, 1956, on the above subject. This Directorate has consulted the Administrative Medical Officers, Chemical examiners, other criminologists and experts, etc. on the subject and the-views expressed by them fall into the following groups: (1) Those who consider the present method of hanging being the best. (2) Those favouring Electrocution Number 17 (3) Those favouring Medication, etc. Number 3 Even though electrocution has been advocated as a desirable method by a considerable number of those consulted, it is not a method without its drawbacks in that death is stated in this case not to be always instantaneous or even painless and that this method involves the setting up of a considerable mechanical outfit. From the replies received from various sources, we also find that those who can speak with the authority of experience and knowledge have spoken with conviction regarding judicial hanging, properly carried out, as being the quickest and least painful method. This is also the view of the Serologist and Chemical Examiner to the Government of India, Calcutta and the majority view of the Central Medico-Legal Advisory Committee We are inclined to agree with this view and do not recommend any change in the present method of execution by judicial hanging in the present state of scientific knowledge." Paragraph 16 of the counter-affidavit says that the D.G. H.S. held to the same view as recently as in February 1982. 50. The 35th Report of the Law Commission of India on Capital Punishment, dated September 30, 1967 deal with "Execution of Sentences" in Chapter XV. The, Commission observes in paragraph 1097 of the Report that though hanging continued to be the most prevalent method for executing the death sentence the course of events showed that it was being slowly abandoned. Thus, while in 1930, 17 States in U.S.A. used to employ that method only 6 retained it in 1967. Again, while it was in force in Yugoslavia before 1950 it was replaced by the firing squad in that year. 51. In paragraph 1098, the Law Commission deals briefly with the Report of the Royal Commission of England while in paragraph 1099, it discusses the Report of the Canadian Committee on the same subject. Again, while it was in force in Yugoslavia before 1950 it was replaced by the firing squad in that year. 51. In paragraph 1098, the Law Commission deals briefly with the Report of the Royal Commission of England while in paragraph 1099, it discusses the Report of the Canadian Committee on the same subject. It would appear from what the Law Commission has stated in this paragraph that the Canadian Committee considered four different methods of execution, namely, hanging, electrocution, gas-chamber and lethal injection. The last mentioned method was believed to ensure instantaneous and painless death, but it could only be accomplished by an intravenous injection requiring skill, and the Canadian Committee considered that it would not be reasonable to expect a medical doctor to perform a task so repugnant to the traditions of the medical profession. Moreover, an intravenous injection could not be administered unless the condemned person was entirely acquiescent. The Canadian Committee appears to have noted that hangings in Canada were not conducted with the same degree of precision as in U.K., as a result of which it was difficult to know how the death was caused and whether the loss of consciousness had supervened instantaneously. Holding on the basis of the evidence before it that hanging was regarded generally as' an obsolete, if not a barbarous method, the Committee recommended that hanging should be replaced by electrocution. 52. In paragraphs 1101 to 1148 (pages 339 to 345), the Law Commission of India extracts the views which were expressed before it as to the ideal method for executing the death sentence. Noting in paragraph 1149 that there was a considerable body of opinion which would like hanging to be replaced by something "more humane and more painless", the Commission says in paragraph 1150 that to a certain extent the matter was one of medical opinion. The general view expressed before the Commission was that a method which is certain, humane, quick and decent should be adopted for executing the death sentence. The society owed it to itself that the agony at the exact point of execution should be kept to the minimum. But the Commission felt that it was difficult to express any positive opinion as to which of the three methods-hanging, electrocution and gas-chamber satisfied these tests most; particularly when electrocution and gas-chamber were untried in India. The society owed it to itself that the agony at the exact point of execution should be kept to the minimum. But the Commission felt that it was difficult to express any positive opinion as to which of the three methods-hanging, electrocution and gas-chamber satisfied these tests most; particularly when electrocution and gas-chamber were untried in India. In paragraph 1151, the Commission records its conclusion by saying: "We do not therefore recommend a change in the law on this point." In other words, the recommendation of the Commission was that death sentence should be executed by the method of hanging prescribed in section 353(5) of the Criminal Procedure Code, since there were no circumstances justifying its substitution by any other method and since, no other method was shown to be more satisfactory. 53. In February 1978, Dr. Rira Singh, Prison Adviser to the National Institute of Social Defence, submitted his opinion to the Ministry of Home Affairs, Government of India, as follows: "In ancient days the execution of death sentence was often attended by cruel forms of torture and suffering indicted on the offender. With the passage of time, however, the methods of execution have undergone various changes. The old practices such as beheading, drowning, stoning, impaling, precipitation from a height, etc., have been gradually replaced in all civilized countries by new methods of hanging, electrocution, gas chamber and shooting. These changes have occurred mainly on the premise that death penalty means simply the deprivation of life and as such should be made as quicker and less painful as possible. The old methods were considered inhuman. According to the study on Capital Punishment published by the United Nativns ill. 1962, hanging remains the most frequent method of execution in various countries including the United Kingdom and generally throughout the Commonwealth. In the United States it is no doubt losing ground in favour of electrocution and lethal gas. The modern methods of hanging differs from its traditional form as it involves an abrupt and immediate severance of the cervical vertebrae. The whole process is carried out with care and skill so as to avoid any bungling and. untoward incident. The State Jail Manuals contain elaborate instructions on the arrangement for execution, inspection of gallows, testing of equipment and the manner of execution. The whole process is carried out with care and skill so as to avoid any bungling and. untoward incident. The State Jail Manuals contain elaborate instructions on the arrangement for execution, inspection of gallows, testing of equipment and the manner of execution. The Prison Adviser thereafter sets out guidelines contained in the Model Prison Manual which have to be followed while executing the death sentence by the method of hanging. In paragraph 3 of his opinion he says that the chances of a mishap in the electrocution process cannot be eliminated altogether and that in the United States, there have been occasions when the current failed to reach the chair when 'the switch was engaged. After describing the procedure which is adopted in the methods of electrocution, gas chamber and shooting, be says that there are cases on record where executions by shooting were bungled by nervous firing squads. Dr. Hira Singh concludes: "The question of introducing electric chair in place of hanging as a mode, of execution may be examined from the administrative as well as humanitarian view points. It is often argued that death by hanging takes lesser time to execute than the other modes, though it may not be invariably true. In any case electric chair has in no way proved to be more efficient in reducing pain or suffering inflicted on the offender. In hanging the body is liable to be disfigured but in electrocution also the leg is sometimes slightly burnt. Above all electrocution involves much costlier equipment and operational preciseness than hanging. In view of such considerations there seems to be no particular advantage in switching over to the electric Chair in the execution of death sentence even if such a system may outwardly look to be more sophisticated." The opinion of the Prison Adviser is at, Annexure V to the counter-affidavit of Shri P.S. Ananthanarayanan. 54. We had allowed one Dr. Chandrakant of the All India Institute of Medical Sciences, New Delhi, to intervene in these proceedings. We may, with some advantage, refer to his written submissions. Dr. Chandrakant did his M.B.B.S. in 1970 and was in the Army Medical Corps for a period of five years. He holds a Diploma in Oto-rhino-Laryngology and the degree of M.D. in Forensic Medicine and Toxicology, It appears that he has also done a three-year degree course of L.L.B. from the Allahabad University. Dr. Chandrakant did his M.B.B.S. in 1970 and was in the Army Medical Corps for a period of five years. He holds a Diploma in Oto-rhino-Laryngology and the degree of M.D. in Forensic Medicine and Toxicology, It appears that he has also done a three-year degree course of L.L.B. from the Allahabad University. He is presently working as a Lecturer in the Department of, Forensic Medicine of the Institute, in which capacity he is required to conduct Medico legal autopsies. He claims that he has conducted approximately 1100 medico legal autopsies upto now. According to .him, hanging is the best method for executing the death sentence since by that method death ensues instantaneously due to a combination of shock, asphyxia and crusting of spinal Medulla. He says that there are misconceived nations about judicial hanging due to improvised and faulty mechanism, Of the process involved in suicidal hanging and due to lack of knowledge of the anatomical structure of the neck and human body. Dr. Chandrakant describes the human anatomy and says that in hanging, whenever there is injury to Medulla, to Pons or Medulla oblongata, all the three vital centres called as "Tripod of life" are affected which causes instantaneous death. Dr. Chandrakant has given a brief description of about 15 different methods which have been followed at one time or the other for executing the death sentence. 55. In a book called "Hanging through the ages (History of Capital Punishment)" by George R Scott (Torchsueam Books, London), the entire history of the technique of hanging has been traced. The author says at page 20 that the introduction of an improved technique of hanging has served to expedite the process of hanging, giving less pain to the prisoner and that, "the long drop" and other improvements have achieved a great deal though, despite everything that has been done, accidents are inevitable. 56. In "Kenny’s Outlines of Criminal Law" (19th Ed. 1966) edited by J.W. Cecil Turner, it is stated at page 618, footnotes that "Hanging does not operate now through suffocation, but by a long drop', invented by Prof. Haughton of Dublm, which dislocates' the vertebrae and is calculated to produce an instantaneous and painless death". 57. In "New Horizons in Criminology" by Harry Elmer Barnes and Negley K. Teeters (3rd Ed. Haughton of Dublm, which dislocates' the vertebrae and is calculated to produce an instantaneous and painless death". 57. In "New Horizons in Criminology" by Harry Elmer Barnes and Negley K. Teeters (3rd Ed. 1966), it is, stated: "Society has resorted to many different methods in executing criminals and other allegedly dangerous persons. Drowning, stoning to death, burning at the stake and beheading have all been used in the past. Of all the modern methods of administering the death penalty hanging has been the most widely used. We read of hangings in the earliest historic literature and throughout the would even today it is still the most widely used". 58. In a publication tiled 'Capital Punishment' under the auspices of the United Nations, Department of Economic and Social Affairs. New York, 1962, it is stated in paragraph 57 of the chapter called 'The Execution' that in earlier times, a great variety of methods of execution was known to the law the carrying out of a sentence of death being sometimes attended by 'cruel forms of future' intended in certain cases to aggravate the suffering. The publication say: "On grounds of humanity and of the respect due to the human person the modern law has in general dropped these practical. The death penalty means nowadays, simply the deprivation of life. The differences which today exist regarding the methods of carrying out the death sentence are attributable to the efforts made to render death quicker and less painful. The same paragraph mentions that hanging has generally been abandoned in the United States. According to the issue of 'Time' magazine dated January 24, 1983, only four States of America still prescribe hanging as a method for executing the death sentence. Paragraph 59 of the U.N. publication says that "Hanging remains the most frequent method in use." It lists over 25 countries of the world in which the method of hanging is used for executing the death sentence. 59. In so far as the judicial exposition of this subject is concerned, attention may be drawn to the latest decision of this Court in Bachan Singh in which the majority said that under successive Criminal Procedure Codes which have been in force in India for about 100 years, the sentence of death is to be carried out by the method of hanging. The founding fathers of the Constitution, some of whom were distinguished jurists (in the proper sense of that term) cannot be assumed to be ignorant of the provision contained in section 354(5) of the Code. And, despite the fact that the death sentence has to be carried out by the mode prescribed in that section they recognized the existence and validity of that sentence. The minority accented the proposition that by reason of the provision contained in Article 21, no person can be deprived of his life or personal, liberty except in accordance with fair, just and reasonable procedure established by law. Applying that postulate, it observed that the framers of the Constitution did not consider that either the death sentence or the traditional mode of its execution prescribed by section 354(5) of the Code was a degrading punishment which would defile the dignity of the individual within the contemplation of the Constitution. These observations are significant, with the caveat that the question as regards the validity of section 354(5), of the Code was not directly in issue in Bachah Singh. 60. This then is the date on which reliance is or call be placed by the Union of India for discharging the burden which rests upon it for proving that the method of hanging prescribed by section 354(5) of the Code does not violate the guarantee contained in Article 21 of the Constitution. 61. Though it must be conceded that the various learned counsel for the petitioners led by Shri R. K. Garg and Dr. N. M. Ghatate have argued their respective cases with great favour, industry and tenacity, the writ petitions furnish no data or reasons whatsoever as to why the method of hanging is violative of Article 21. Mostly, the prayer clauses of the petitions simply contain a request that the system of hanging should be declared to be violative of Articles 14, 19 and 21 of the Constitution. Articles 14 and 19 were hardly even mentioned in the arguments on the main point and, rightly so. The arguments advanced in regard to the violation of Article 21 went far beyond the scope of the averments in the writ petitions but that is not unprecedented in this Court. Moreover, in a matter involving the question of life and death, technicalities cannot be allowed to defeat justice. The arguments advanced in regard to the violation of Article 21 went far beyond the scope of the averments in the writ petitions but that is not unprecedented in this Court. Moreover, in a matter involving the question of life and death, technicalities cannot be allowed to defeat justice. We could have asked the petitioners to amend their petitions but rather than doing so, we decided to hear a full-dressed argument on the validity of section 354(5) of the Code, regardless of the paucity of pleadings, especially since the writ petitions do not involve any challenge under Article 14 of the Can have heard the petitioners counsel at length on every conceivable aspect of the question involved in these petitions. We have proceeded to this judgment, on a careful consideration of the diverse submissions made before us. 62. Dr. Ghatate, who began the arguments on behalf of the petitioners, contended that the method of hanging involves pain, degradation and suffering wherefore that method violates Article 21 and cannot be used for executing the death sentence. In support of this argument, he drew our attention to certain passages in the dissenting judgment of Bhagwati, J. in Bachan Singh. At page 285 of the Report the learned Judge has extracted a passage from a decision of the California Supreme Court in which it is said that, "Penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture." In the absence of citation, we arc unable to trace the decision or to sec the context in which the California Supreme Court made the particular observation. We do not know who these "Penologists and medical experts" are and where they have expressed agreed opinions attributed to them. It is not even clear whether the California Court was dealing with the validity of death penalty or with the methods of executing that penalty and, if the latter whether it has concerned every method of execution an not the method of hanging only. The purport of the passage seems to indicate that the question under inquiry was that death sentence is a 'cruel and unusual punishment'. The purport of the passage seems to indicate that the question under inquiry was that death sentence is a 'cruel and unusual punishment'. As we have shown, the expert evidence before the Royal Commission of U.K. was quite to the contrary, especially in regard to the improved technique of hanging which came into operation after the recommendations of the Committee appointed in 1886 were implemented. 63. At page 287 of the Report Bhagwati, J. has made certain observations which also Dr. Ghatate has pressed into service. We have already extracted those observations while dealing with the preliminary objection of the learned Solicitor General. The sum and substance of the particular passage is that "hanging is undoubtedly accompanied by intense physical torture and pain". In support of this conclusion, the learned Judge quotes Warden Duffy of San Quentin, a high security prison in U.S.A., who has descended with particularity the procedure which options at the hangings of prisoners. After extracting a statement of Warden Duffy at page 288, the learned Judge says: "If the drop is too short, there will be a slow and agonizing death by strangulation. On the other hand, if the drop is too long, the head will be torn off. In England centuries of practice have produced a detailed chart relating a man's weight and physical condition to the proper length of drop, but even there mistakes have been made," Our difficulty again is the absence of citation of the descriptive passage which appears at page 288 of the Report. We do not know where and in which year, Warden Duffy gave the particular description of the hanging process. The process described by him is apparently similar to the one which is now regarded as outmoded and is no longer in use. Besides, Warden Duffy was a stern opponent of the capital punishment. In a series of articles under the caption "San Quentin is my Home" which appeared in the Saturday Evening Post, March 25-May 13, 1950; he denounced the capital sentence by pointing out, inter alia, how every known method of executing that sentence is fraught with pain and suffering. We will have occasion to call attention to what he has to say about the Gas Chamber too. We will have occasion to call attention to what he has to say about the Gas Chamber too. But evidence before us shows that the mechanics of the method of hanging has undergone significant improvement over the years and if the expression is not inapt in the context, hanging has been almost perfected into a science. The chance of a mishap are minimal now though, the Chances of an accident can never be eliminated totally. If that could be done, the word "accident" will not appear in the dictionary of wise men. In regard to the improvements effected in the method of hanging, we will only draw attention to the findings of the Royal Commission and the opinion expressed by other experts to which we have already referred.