Justice P.N. Bhagwati, who died at the age of 95, is maybe the most prominent judge India has ever had. What Indira Gandhi into politics, Justice P.N. Bhagwati was recognized in Indian judiciary: their legacies will live on, having come up with a constitutional equalization established on revolutionary eloquence, but at very massive costs to the organizations themselves[i].
Justice Bhagwati was born on 21st December 1921 in Ahmedabad, the then Presidency of Bombay in British India. He was the son of the former Supreme Court Judge, Justice Natwarlal H Bhagwati, and the brother of the economist Jagdish Bhagwati and Neurosurgeon S.N. Bhagwati. Justice Bhagwati completed his schooling from and then in 1941, took the Bachelor’s degree in Mathematics (Hons.) from Bombay University. In 1942, he was however courted arrest during the Indian Independence Movement and went underground for four months. He later received a law degree from Government Law College, Mumbai.
He began his career by practicing as an advocate in the Bombay High Court. In July 1960, he was appointed the judge of the Gujarat High Court. Thereafter, in September 1967, he was appointed the Chief Justice of that court. He also acted as an acting Governor of Gujarat a couple of times, i.e. from 7 December 1967 to 25 December 1967 and 17 March 1973 to 3 April 1973. In July 1973, he was appointed a Judge of the Supreme Court of India. In the year 1985, he was appointed as the Chief Justice of India[ii].
In 1982, Justice Bhagwati was also elected a fellow of the American Academy of Arts and Sciences. He was a member of the United Nations Human Rights Committee from 1995 to 2009. He was the head of the committee in 2001-03. In 2006, he had also served as a member of the Committee of Experts of the International Labour Organisation for over 27 years. He was appointed Chancellor of Sri Sathya Sai institute of higher learning on 6th May 2011. In 2007 Justice Bhagwati was awarded the Padma Vibhushan in public affairs, which is India’s second-highest civilian award.
Charting a way to power
Just as nationalism has now developed as the symbol of modern judicial philosophy, socialist eloquence was his approach to power. He was appointed to the Apex Court in 1973 at the peak of Mrs. Gandhi’s experimental invasion on the judiciary, with her opinion for a ‘committed judiciary’. At the time of Kesavananda Bharati v State of Kerala (1973) 4 SCC 225: AIR 1973 SC 1461verdict, in which the Supreme Court had opposed Mrs. Gandhi and had observed the Constitution’s basic structure as un-alterable even by her strong parliamentary majority. In consequence of this judgment, she promoted Bhagwati and Krishna Iyer to the Hon’ble Supreme Court.
Two main points that can be seen in Mrs. Gandhi’s mid-1970s invasion on the judiciary were the unavailability of the legal mechanism and its British form. The outcomes were also twofold: the growth of legal aid and the introduction of indigeneity in legal organizations, respectively. Legal aid was even observed as an element of the Emergency’s flagship twenty-point scheme. Hon’ble Justices Krishna Iyer and Bhagwati actively responded and composed consecutive reports suggesting ‘Nyaya panchayats’ as the apt answer to both the problems. The problems of allowing access to courts could have been solved through diversification of legal aid. Rather the solution was seen as producing parallel corresponding organizations, modifying judicial procedure by dodging basic postulates of adjudication. This outlook of paternalistic decentralized domestic justice provided the foundation for future evolutions such as Lok Adalats at the base level, establishment of tribunals at the intermediate level, and Public Interest Litigation (PIL) at the topmost level of the judiciary[iii].
Behind the PIL
Much of Justice Bhagwati’s greatness hinges on his job in developing the PIL. In fact, PIL letter petitions would primarily be directly addressed to him, rather than filing in the court. This empowered him to dodge the then Chief Justice’s part in distributing cases, also leading to accusations of requesting petitions. More patiently, rather than grounding the PIL in norms and postulates, his outlook of the legal mechanism as the antagonist of justice implied that all facets of strategy in PIL cases were altered, discarding all checks on judicial business and making it an overpowering force destroying all procedure. The infusion of locus standi could have been based on some concept of ‘representation standing’. In its unavailability, most PILs are filed by citizens not connected to any issue. In the Bandhua Mukti Morcha v. Union of India(1997) 10 SCC 549 case, he modified evidentiary guidelines in PIL cases to a limit that resulted destructed in the long run. He also was the first judge to honestly legislate in a PIL regarding inter-country adoptions, forming another dangerous precedent[iv].
Justice Bhagwati is also acknowledged for his judicial ad-libbing. Established on the notion that ‘arbitrariness is the antagonism of unfairness’; he brought a new test to evaluate infringement of ‘Right to Equality’. This evaluation is however absolutely irrelevant, as constitutional scholar H.M. Seervai cited. Even more acclaimed is his developing ‘right to life jurisprudence’ in the Maneka Gandhi v. Union of India1978 AIR 597, 1978 SCR (2) 621case. A negative right contrary to the state’s illegal keeping away from any individual’s life or personal freedom has since been construed as a positive right to life, making it storage for all manner of socio-economic rights. Another situation of negligent improvisation is his unrequited modernization of ‘absolute liability’ as a postulate of liability in cases of damage caused by inherently dangerous industries. Needlessly trying to alter the few exemptions that the time-honored principle of strict liability allowed, once again Justice Bhagwati was set on triumphing the tournament of competitive socialism that his outlook of judgeship necessitated, nevertheless of institutional costs. This has been his most long-lasting legacy as an epitome for future judges: to analyze their judicial role influential as social activists and not only as jurists. A certain boldness of legal language arrived in Indian appellate judgments and progressive eloquence became the path to power for Indian judges. The worth of careful judicial composition descended as loyalty to law no longer concerned, what concerned was the show of ideological commitment.
During his entire tenure, Justice Bhagwati delivered many landmarks and important judgments. In the position of a Supreme Court judge, Justice Bhagwati brought the concepts of PIL and absolute liability to the Judicial organ. Therefore he, along with Justice V. R. Krishna Iyer, is called the pioneer of judicial activism in the country. Some of his most prominent Judgments may be briefed as under-
Habeas Corpus Case [1976 AIR 1207, 1976 SCR 172]
A controversial judgment of Bhagwati was in the ADM Jabalpur v. ShivkantShukla case (popularly referred to as the ADM Jabalpur case or the habeas corpus case) where he held that during the time of Emergency from 1975 to 1977, a person’s right to not be unlawfully detained (i.e. habeas corpus) can be canceled. This verdict received a lot of denunciation since it decreased the significance attributed to Fundamental Rights under the Indian Constitution. Bhagwati in 2011 agreed with the popular view that this verdict was not properly delivered and he “apologized”.
Maneka Gandhi Case [1978 AIR 597, 1978 SCR (2) 621]
In the case, Maneka Gandhi had been issued an Indian passport on 1 June 1976, which was confiscated abruptly at the airport. As per article 21 of the Indian Constitution, which talks about with Right to Freedom, Gandhi filed a writ petition in which Bhagwati and Justice V. R. Krishna Iyer gave the verdict in favor of Gandhi.
S.P Gupta vs. Union of India [(1982) 2 S.C.R. 365]
Justice Bhagwati in the said case supported the expansion of access to justice to all the Indians and held that “The Court has to innovate new methods and strategies to provide access to justice to large masses of people who are denied basic human rights, to whom freedom and liberty have no meaning at all.
Bachan Singh vs. State of Punjab [AIR 1980 SC 898]
In this case, where the rarest of rare doctrine was given by the majority judges, Justice Bhagwati was of the opinion that “Criminals do not die at the hands of established laws, they perish by the hands of other men. Death Penalty is the worst form of Assassination since there it is invested with the approval of the Society.
Minerva Mills Case [AIR 1980 SC 1789]
Justice Bhagwati was the only dissenting judge in the Minerva Mills case as well in 1980. He upheld the 42nd Constitutional Amendment during Emergency, which was struck by the majority. In the case, the majority was of the view that the power of the Parliament to amend the Constitution was limited by the Constitution itself.
Minority Judgement Of Justice P.N. Bhagwati[vi]
Bachan V/S State of Punjab [AIR 1980 SC 898]
(i) Brief facts
It is the case of Bachan Singh vs. the State of Punjab where Bachan Singh was tried, convicted and sentenced to death by the Session Judge, Ferozepur, for causing the death of 3 persons namely Desa Singh (son), Durga Bai and Veeran Bai(both were daughters) of Hukam Singh and for causing serious injuries to Vidya Bai(daughter), around 12 midnight amid July 4 and 5,1977.
The appellant was found culpable of three charges as per section 302 of IPC,1860. He was also found culpable as per section 326 of the same code for the causing serious injury to Vidya Bai and was subjected to 3 years of rigorous imprisonment and penalty of Rs. 500. Subsequently the appellant, Bachan Singh filed an appeal against the verdict of the session judge. When the case went to the High Court for hearing, Hon’ble bench set aside the appeal and upheld the death sentence. Again, Bachan Singh filed an appeal before the Hon’ble Apex Court of India by special leave petition within article 136 of the Constitution of India. The issue for consideration particularly in the appeal was, whether the facts before the courts would be “special rationale” for granted, the death sentence.
(ii) Issues of the case
(1) Whether Section 302 of Indian Penal Code, 1860 is constitutionally valid for award of Death Sentence?
(2) Whether the facts and circumstances of the case would be Special Reasons forwarding the Death Sentence under 354(3)of Criminal Procedure Code, 1973?
(iii) The verdict of the court
(1) Whether Section 302 of Indian Penal Code, 1860 is constitutionally valid for award of Death Sentence?
The question raised to the death penalty in this was based, among other things, irreversibility, fallibility, and that the punishment is certainly more harsh, barbaric and disgraceful. It was also argued that the corrective purpose of prevention remained unproven, the punishment was not a justifiable ground of punishment, and basically it was transformation and rehabilitation which were the objectives of punishment.
In this case, the court followed the ‘rarest of rare’ postulate for applying the death penalty, stating that rationale to impose or not impose the death penalty must incorporate the situations of the crime and the criminal. Justice Bhagwati in his discord view observed that the death penalty is certainly whimsical, inequitable, and unreasonable. He opined that “the death penalty in its real execution is prejudiced, for it impacts majorly against the poor and underprivileged sections of the community and the rich and the powerful usually evade, from its custody. This situation also increases the discriminatory and whimsical nature of the death penalty and observed it as unconstitutional as being violative of articles 14 and 21.”
The legality of imposition of the death sentence was questioned on the basis that the sentence puts a stop to all rights assured by fundamental rights as per clauses (a) to (g) of sub-clause (1) of Article 19 of the Constitution and therefore, the statute regarding capital sentence is not fair and not in the benefit of the general public. It was further argued that the discretion contributed by the judges to levy capital punishment is not grounded on any benchmark or approach needed by the legislature for levying capital punishment and inclination towards imprisonment for life.
Further, it was submitted that the unchecked and indiscriminate discretion of the judges to levy capital punishment or imprisonment of life is stroked by article14 of the Constitution. The court canceled all the challenges contrary to the award of the death sentence on the basis of infringement of the provisions of the Constitution. The decision by the majority delivered in the case observed the“special reasons” important for levying the death penalty.
The majority of four judges, in this case, gave their views against the question raised to the constitutionality of the death penalty.
 Whether the facts and circumstances of the case would be Special Reasons forwarding the Death Sentence under 354(3) of Criminal Procedure Code, 1973?
In the case of crimes punishable with death, the sub-section necessitates special reasons for levying such sentence. But if the crime is of such a serious character that the court approves the death penalty of such crime, then special reasons should be provided. Thus, while the parliament maintained that for levying death sentence the courts should provide reasons.
The purpose of requiring the basis to be rendered with regard to the sentence could be observed in the law Commissions Report and the Report of Joint Parliamentary Committee. The Law Commission in its Vol. 1, 35th report on the capital Punishment manifested that a significant body of outlook is in support of a provision necessitating the court to mention its reason for levying the punishment either of the Death penalty or imprisonment of life.
The Law Commission in its 41st report on Crpc suggested the alterations which also recognized that there were particular crimes for which the penal code provided the punishment in the form of death or in the alternative life imprisonment.
By bringing section 354(3) of CrPC the normal sentence is slightly less of imprisonment for life and if the death sentence is levied for special grounds it will have to be reduced in writing. The court before levying a death sentence should make sure that the crime is of such a nature that the maximum penalty is important for attaining the ends of justice.
The verdict delivered by this court after bringing the amendment of section354(3) by Act 2 of 1974 has reiterated their stand. In Balwant Singh vs. State of Punjab [1995 (1) SCR 411]the court observed that as per section 354(3) CrPC, 1973, the court is needed to mention the grounds for the sentence levied and in the case of death sentence special grounds are needed to be stated. Imposing the sentence other than the death sentence is the general norm, and only special reason implies that extraordinary facts and conditions in a given case, will justify the awarding of a death sentence.
(iv) Critical analysis Life imprisonment is a rule, capital punishment is an exception. From the Jagmohan Singh caseto Balwant Singh case, courts had aptly observed that the imposition of death sentence needs to address extraordinary grounds, and courts are obliged for imposing so. With the change in time, social requirements, and human rights benchmarks, the death penalty is required to be eliminated for all the offenses other than terrorism-related offense and waging war against the nation. It does not deliver general penological objects of deterrence of crime. In this case, though P.N. Bhagwati J. had expressed dissenting opinion and was not counted in the majority the view of Hon’ble judge was correct as he rightly accurately out the lacunas of the death penalty by observing it as whimsical, arbitrary and capricious.
When the verdict of Bachan Singh came, most of the nations around the globe had repealed the practice of the death penalty. Only some nations like India, China, Indonesia, and the United States, still pursue the practice of the death penalty.
Guidelines provided by the hon’ble apex court in the case owes high significance in the penological system of India. When the legislation gives the court an opportunity to impose a sentence, the court should not impose it whimsically or capriciously. There is no verified formula to determine legitimate and reasonable punishment for crime. In the dearth of such formula prudence of the judge adds inequitable verdict. Where a statute provides the court a discretion to impose the sentence the discretion is vested with the court of Justice. The court has to keep in mind the requirement of proportion amid an offense and the penalty. A court should not impose extreme punishment stated in the offense. The court should reserve extreme punishment for the frightful illustration of the crime concerned.
In the light of the above-stated arguments and the reasoning, the judgment of the Hon’ble Supreme Court appears to be of paramount quality. The constitution bench of hon’ble Court limited the imposing of death penalty by defining the nature of capital punishment to be applied only in rarest of the rare cases. Death penalty in case of murder (Section 302 of I.P.C.) should be held unconstitutional because it violates the basic constitutional provisions and also create a society of ‘eye for an eye’ which in current scenario would not fulfil the object of justice.
Capital Punishment is the maximum punishment in any legislation across the world which is similar to judicial murder. Imposing of death penalty for the plain act of murder would then eventually result in failure of justice.
Death penalty intervenes in the purpose of justice, obstruct legitimate administration of criminal justice and causes serious injury on the administration of criminal justice. Keeping the directions and outlook of justice P.N. Bhagwati in mind life imprisonment should trimph and capital punishment should be kept at stake until and unless the offence is serious in character.
“The views of the authors are personal“
Frequently Asked Questions
What opinion Justice Bhagwati expressed in the case of Bachan Singh v State of Punjab?
Justice Bhagwati in his discord view observed that the death penalty is certainly whimsical, inequitable, and unreasonable. He opined that “the death penalty in its real execution is prejudiced, for it impacts majorly against the poor and underprivileged sections of the community and the rich and the powerful usually evade, from its custody. This situation also increases the discriminatory and whimsical nature of the death penalty and observed it as unconstitutional as being violative of articles 14 and 21.
What was the inner crux of the Bachan Singh case?
Guidelines provided by the hon’ble apex court in the case owes high significance in the penological system of India. When the legislation gives the court an opportunity to impose a sentence, the court should not impose it whimsically or capriciously. There is no verified formula to determine legitimate and reasonable punishment for crime. In the dearth of such formula prudence of the judge aids inequitable verdict. Where a statute provides the court a discretion to impose sentence then discretion is vested with the court of Justice. The court has to keep in mind the requirement of proportion amid an offense and the penalty. A court should not impose extreme punishment stated in the offense. The court should reserve extreme punishment for the frightful illustration of the crime concerned.
For what reform, Justice Bhagwati is acknowledged for?
Justice Bhagwati’s greatness hinges on his job in developing the PIL. In fact, PIL letter petitions would primarily be directly addressed to him, rather than filing in the court. He is also known for the outlook of paternalistic decentralized domestic justice provided the foundation for future evolutions such as Lok Adalats at the base level, establishment of tribunals at the intermediate level.
[i] P.N. Bhagwati’s legacy: a controversial inheritance, available at https://www.thehindu.com/opinion/lead/a-controversial-inheritance/article19150883.ece, last accessed at 5/5/2020 at 8:00 pm
[ii] Know your judges: Justice P.N. Bhagwati, available at https://indianlegalsolution.com/know-your-judges-justice-p-n-bhagwati/, last accessed at 5/5/2020 at 8:45 pm
[iii] Supra note 1
[v] Supra note 2
[vi] Anubhav Agrawal and Ritika Tiwary, jurisedge journal of juridical research, available at file:///C:/Users/hp/Downloads/ANUBHAV-AGARWAL-RITIKA.pdf