Lines in the Margin (Part IV): Bhagwati J. in Bachan Singh v. State of Punjab

This essay is part of a four-part series on some of the greater dissents in Indian constitutional law that are worth returning to. The previous posts can be accessed here, here and here. I can only hope that readers find something of interest in this journey. 

Introduction 

The death penalty is, and will remain, intensely debated. People say it deters. Politicians promise it for “heinous” crimes. Families of victims demand it as moral closure. But wrongful convictions happen. Evidence breaks. Witnesses recant. Judges err. And when the State gets the sentence wrong, the mistake is forever. 

It is this tension between retributive appetite and the fallibility of human institutions that paints Justice Bhagwati’s dissent in Bachan Singh v. State of Punjab. Start there, and you quickly see that it is not a jab at sentencing law. He simply questions whether a polity founded on dignity may permit the deliberate extinction of life by the State. (See the opinion beginning para 227 and Bhagwati J.’s later reasons)

Parsing the Dissent 

Bhagwati J.’s dissent must not be read as part of a binary “for or against death penalty” debate. For he is not primarily responding to penological policy. The entire opinion tries to inquire if the Constitution permits. Accordingly, the reading begins at paragraph 227 where Bhagwati reframes the issue away from sentencing discretion and towards fundamental rights to equality and life (with liberty and dignity). And so, every subsequent paragraph is read through the lens of a single question: does the Constitution, as a moral document, authorise the State to extinguish life?

Identifying the argumentative layers

However, the method is not that simple, and the brilliance of the dissent lies in the multiple layers through which the same question is answered. The dissent thus can be parsed into five overlapping layers of argument, rather than read linearly:

1. Doctrinal layer – At the level of doctrine, Bhagwati J. reads Articles 14 and 21 together (and cites Fazl Ali J.’s opinion in Gopalan multiple times!), refusing to treat equality and life as siloed guarantees. He shows that a law which permits death through unguided choice necessarily produces arbitrariness, and arbitrariness is fatal for any Constitution. Deprivation of life, in his account, cannot be justified by procedure alone and that it must also satisfy equality. This integrated reading destabilises the assumption that capital punishment is neutral once procedural safeguards (the lack of) are observed.

2. Institutional layer – Institutionally, Bhagwati J. questions the capacity of courts themselves. He exposes the impossibility of consistent capital sentencing within an adversarial system marked by unequal resources, variable judging styles, and subjective moral responses. The dissent treats judicial discretion not as a virtue but as systemic risk.

3. Empirical-probabilistic layer – Rests on uncertainty. Bhagwati J. repeatedly foregrounds error (in the face of mistaken facts, unreliable witnesses, flawed investigations) and treats these not as aberrations but as predictable features of criminal adjudication. Deterrence is approached with the same skepticism. And absent demonstrable proof, it remains speculative. This layer quantifies the implications of error. Naturally, once punishment is irreversible, even a small probability of mistake acquires overwhelming constitutional significance.

4. Moral-philosophical layer – Dignity, reform, and moral humility form the ethical spine of the dissent. The question is not whether the offender deserves death, but whether the State is morally competent to impose it. By framing punishment as a reflection of constitutional character, Bhagwati J. relocates the debate from retribution to legitimacy, insisting that severity cannot substitute for moral authority.

5. Rhetorical-cultural layer – Finally, Bhagwati J. draws on literature, history, and humanitarian thought (Victor Hugo, for instance). These references function as moral witnesses, reminding us people that justice systems do not operate in isolation from civilisation’s ethical progress. The rhetoric thus, is deliberate and humanises the abstract and situates constitutional interpretation within a broader cultural conscience, reinforcing the dissent’s claim that law must answer to humanity, not merely to text.

… 

I shall not reflect much. The readers, I am sure, are already familiar with the debates around the death penalty and have likely reflected on them in their own ways. Thus, this account shall be a brief one:

Once the method and idea of the dissent are laid bare, what emerges is not a simple opposition to capital punishment but a deep distrust of the State’s confidence in exercising the power to kill. Bhagwati J.’s invocation of constitutional morality operates as a critique of power (wonder whether Mr. Bhatia has written about this in Indian Constitution: Conversation with Power, on a lighter note readers are welcome to gift it to me!).

The dissent is a reminder that the Constitution is written for fallible institutions, not omniscient ones. Where punishment is irreversible, error becomes decisive. Dignity, in this frame, is not exhausted by fair procedure. It includes the possibility of moral becoming. Of reform and change -- something which death forecloses absolutely. Most striking, when I first read Bhagwati J.’s opinion, is his inversion of judgement. That punishment reflects the character of the State, not merely the crime of the offender.

Seen such, the dissent insists that moral strength lies in refusal, not excess. And in so a doing, Bhagwati J. leaves us with: how much violence can a Constitution permit before it ceases to be constitutional at all?

(Not) Miscellanous

There are, finally, aspects of Bhagwati J.’s dissent that are almost never talked about. And so, here are three - loosely related, but worth placing on the table nonetheless.

First, the dissent quietly resists minimalism. Bhagwati J. by refusing to accept the “rarest of rare” formulation as an answer pushes back against the judicial habit of salvaging morally troubling laws through narrowing constructions and restraint (that too rhetorical, in most cases). His dissent suggests that some questions cannot be managed or softened without doing violence to the Constitution itself. 

Second, the dissent relies very little on exceptionalism. Bhagwati J. does not pile up grotesque facts or extreme hypotheticals. Instead, he treats the death penalty as an ordinary exercise of State power, embedded in everyday processes. Killing, per Bhagwati J. does not become constitutional simply because it is rare. And this attention is subtle but extremely important. 

Finally, the dissent anticipates a modern, rights-based understanding of punishment by decisively decoupling constitutional protection from moral innocence. Bhagwati J.’s concern is not limited to the risk of executing the innocent (serious as that risk is) -- but extends to the proposition that even the guilty remain constitutional subjects. Rights do not evaporate at conviction. If anything at all, scrutiny must intensify at the moment of punishment. 

And finally, to sum

Bhagwati J.’s dissent reminds us that constitutions are not tested by how they treat the ordinary, but by how they restrain themselves at their most tempted moments. And perhaps that is what provokes. 

For a Constitution that kills must explain not just why, but whether it ever should.