[79]The Indian Penal Code leaves the imposition of the death sentence to the trial judge's discretion. In Bachan Singh's case there was also a challenge to the constitutionality of the legislation on the grounds of arbitrariness, along the lines of the challenges that have been successful in the United States. The majority of the Court rejected the argument that the imposition of the death sentence in such circumstances is arbitrary, holding that a discretion exercised judicially by persons of experience and standing, in accordance with principles crystallized by judicial decisions, is not an arbitrary discretion.[1] To complete the picture, it should be mentioned that long delays in carrying out the death sentence in particular cases have apparently been held in India to be unjust and unfair to the prisoner, and in such circumstances the death sentence is liable to be set aside.[2]
The Right to Life
[80]The unqualified right to life vested in every person by section 9 of our Constitution is another factor crucially relevant to the question whether the death sentence is cruel, inhuman or degrading punishment within the meaning of section 11(2) of our Constitution. In this respect our Constitution differs materially from the Constitutions of the United States and India. It also differs materially from the European Convention and the International Covenant. Yet in the cases decided under these constitutions and treaties there were judges who dissented and held that notwithstanding the specific language of the constitution or instrument concerned, capital punishment should not be permitted.
[81]In some instances the dissent focused on the right to life. In Soering's case before the European Court of Human Rights, Judge de Meyer, in a concurring opinion, said that capital punishment is "not consistent with the present state of European civilisation"[3] and for that reason alone, extradition to the United States would violate the fugitive's right to life.
[82]In a dissent in the United Nations Human Rights Committee in Kindler's case, Committee member B. Wennergren also stressed the importance of the right to life.
The value of life is immeasurable for any human being, and the right to life enshrined in article 6 of the Covenant is the supreme human right. It is an obligation of States [P]arties to the Covenant to protect the lives of all human beings on their territory and under their
- ↑ Id. at 740, para. 165. Bhagwati J dissented. The dissenting judgement is not available to me, but according to Amnesty International, When the State Kills, supra note 42, at 147, Bhagwati J asserted in his judgement that "[t]he prevailing standards of human decency are incompatible with [the] death penalty."
- ↑ Triveniben v State of Gujarat [1992] LRC(Const.) 425 (Sup. Ct. of India); Daya Singh v Union of India [1992] LRC(Const.) 452 (Sup. Ct. of India).
- ↑ Supra note 95, at 484.
