equally well."[1]
A decade later the Indian Supreme Court surveyed the international authorities for and against the death penalty in Bachan Singh's case.[2] Since then a great deal more has been written in support of both the abolitionist and the retentionist schools. But when all is said and done the answer is still what it was to Marshall J in Furman's case: the death penalty has no demonstrable penological value over and above that of long-term imprisonment. No empirical study, no statistical exercise and no theoretical analysis has been able to demonstrate that capital punishment has any deterrent force greater than that of a really heavy sentence of imprisonment. That is the ineluctable conclusion to be drawn from the mass of data so thoroughly canvassed in the written and oral arguments presented to us.
[213]Another equally ineluctable conclusion then is that capital punishment cannot be vindicated by the provisions of section 33(1) of the Constitution.[3] It simply cannot be reasonable to sanction judicial killing without knowing whether it has any marginal deterrent value.
[214]Having concluded that capital punishment is inconsistent with section 9 of the Constitution and cannot be saved by section 33(1), I find it unnecessary to consider its possible inconsistency with any other fundamental rights protected by Chapter Three. Vigilant protection of the right to human dignity (section 10) and of the immunity from cruel, inhuman or degrading punishment (section 11(2)) is undoubtedly essential. So too arbitrariness in the imposition of any sentence is fatally inconsistent with the demand for equality so emphatically mandated in sections 8(1) and (2). I do not want to be understood as disagreeing with the views expressed by any of my colleagues in regard to those rights and their importance; but in the hierarchy of values and fundamental rights guaranteed under chapter 3, I see them as ranking below the right to life. Indeed, they are subsumed by that most basic of rights. Inasmuch as capital punishment, by definition, strikes at the heart of the right to life, the debate need go no further.
[215]Langa J: I agree with the conclusions reached by Chaskalson P and generally with the reasons he advances in his exhaustive and erudite judgment. I concur in the order he has proposed. I wish to put additional emphasis on some of the aspects he has dealt with.
[216]The death sentence, in terms of the provisions of section 277 of the Criminal Procedure Act, No. 51 of 1977, is unconstitutional, violating as it does:
- ↑ Id. at 359.
- ↑ Bachan Singh v State of Punjab (1980) 2 SCC 684, quoted in paragraph 76 of the main judgment.
- ↑ The provisions of section 277(1)(b), which sanction the death penalty for treason committed at a time when the Republic is in a state of war, do not arise for consideration in this case. That is a wholly different situation which requires independent evaluation.
