State of Punjab Vs.
No.117 of 2006]
J U D G M E N T
appeal at the instance of the State has been preferred from the judgment of the
Division Bench of the High Court of Punjab and Haryana at Chandigarh, dated July
27, 2005 in Criminal Appeal No. 250/1996 whereby High Court gave the appellant
the benefit of doubt and acquitted him of the charges framed against him.
the facts of the case are that the respondent Dalbir Singh, a constable in 36th
Battalion Central Reserve Police Force, at the relevant time was posted at Fatehabad,
District Amritsar, Punjab. On April 11th, 1993, Harish Chander, the Battalion Havaldar
Major (hereinafter `B.H.M.') in `Company D' of the Battalion, reported to Hari Singh,
the Deputy Commandant Quarter Master (hereinafter `Deputy Commandant'), that the
accused had refused to carry out the fatigue duty assigned to him.
On such report being made,
the Deputy Commandant directed the B.H.M. and Sub Inspector Kewal Singh to produce
the accused before him. As per these directions, the accused was produced before
the Deputy Commandant at 11:15 a.m. Upon being warned verbally about his non compliance
of the orders for fatigue duty, the accused requested the warning to be issued in
writing. Upon such a response, the Deputy Commandant ordered the B.H.M. and the
Sub Inspector to have the accused present before him the next morning.
immediately after these talks, the Deputy Commandant's office saw firing from a
Self Loading Rifle (SLR), even as the Deputy Commandant himself and the B.H.M. were
inside it. As the Deputy Commandant positioned himself underneath a table, he allegedly
noted that it was the accused who was firing from a rifle from a tent pitched
outside. He was allegedly hit in his back. The B.H.M. sustained multiple bullet
injuries in his shoulders.
This entire incident was allegedly witnessed by Constable Dalip Kumar Mishra
and Sub Inspector Kewal Singh. Eventually, when the firing had stopped and the accused
was trying to reload his gun, he was overpowered and disarmed by Constable Mishra.
The Deputy Commandant directed the Sub Inspector Kewal Singh to hand over the accused
to the police, while he himself and B.H.M. Harish Chander were rushed to Sri Guru
Nanak Hospital. Unfortunately, B.H.M. Harish Chander died en route and his body
was identified in the hospital. The Deputy Commandant recorded his statement (Ex.
PH) and an F.I.R. (Ex. PH/2) was registered at the hospital by Sub Inspector
investigation, the Investigating Officer, in the presence of SI Kewal Singh and
Constable Mishra, found 20 empty bullet-cartridges (Ex.P4-P23) at the Battalion
Headquarters at Khawaspur. These were taken into possession after putting them
in a sealed parcel through recovery memo (Ex.PK). The empty cartridges were sent
to the Forensic Science Laboratory on 15.4.1993 and the SLR was forwarded on 23.4.1993.
investigation a challan was put in the Court of the Ilaqua Magistrate who found
that the case was exclusively triable by the Court of Session, committed the same
to Court of Session. The accused was charged under Section 302 and 307 of IPC and
under Section 27 of the Arms Act. The accused pleaded not guilty and the Prosecution
was called upon to examine its witnesses including DCQM Hari Singh (PW.6), SI Kewal
Singh (PW.7), Constable Mishra (PW.9) and Sub Inspector Jaswant Singh. The accused,
upon examination, denied all circumstances and asserted that he was innocent and
had been falsely implicated.
The Trial Court consequently
convicted the accused under Section 302 of IPC, sentencing him to rigorous
imprisonment for life and fine of Rs.2,000/-, under Section 307 of IPC, sentencing
him to rigorous imprisonment for 5 years and fine of Rs.2,000/-, and under
Section 27 of Arms Act, sentencing him to rigorous imprisonment for 3 years and
fine of Rs.1,000/-. The substantive sentences were ordered to run concurrently.
the impugned judgment the High Court while reversing the order of conviction found
that there is some irreconcilable inconsistency in the prosecution case. The High
Court found that PW.9 the alleged eye witness deposed that the respondent was apprehended
at the spot by him and he was 5disarmed by him and the SLR which was being used
by the accused was taken in his possession and the accused was handed over to
But according to the Investigating
Officer (IO) PW.12, he went to the place of occurrence on the date of occurrence
i.e. on 11.4.93, but neither the accused nor the SLR allegedly used by the accused
were handed over to him. The further evidence of the IO is that on 14.4.93, the
accused was handed over to him outside the CRPF headquarters. Then on his disclosure
statement the SLR was recovered.
In view of such
irreconcilable discrepancy in the evidence of the prosecution, the High Court
came to the finding that the prosecution was trying to suppress a vital part of
the case and the incident did not take place in the manner presented by the prosecution.
The High Court further found that even though the prosecution allegation is that
20 cartridges were fired, only 7 empties were recovered and none of the bullets
The High Court found that
the same is very surprising when the prosecution version is that 20 bullets
were actually fired in a room towards the 6 side where there are no windows. It
is, therefore, impossible that none of the bullets had been recovered. In view of
the aforesaid finding of the High Court the accused was given the benefit of doubt.
are of the opinion that there is no reason to interfere with the order of acquittal
given by the High Court sitting in our jurisdiction under Article 136 of the Constitution.
We do not think that the order of the High Court is either perverse or not based
on proper appreciation of evidence. Therefore, on the merits of the order of acquittal
granted by the High Court we find no reason to interfere. But since in this case
the accused was charged under Section 27(3) of the Arms Act (hereinafter, `the Act')
and since the vires of Section 27(3) of the said Act has been questioned, we proceed
to examine the said issue in detail.
this matter leave was granted on 16.1.2006. On 31.8.2010, a Division Bench of this
Court issued notice to the Attorney General as vires of Section 27(3) of the Act
was challenged in the said proceeding.
to such notice Mr. Gourab Banerjee, the learned ASG initially submitted before
this Court on 15th March, 2011 and again on 21st July, 2011 that a proposal to amend
Section 27(3) of the Act is under consideration of the Government of India and
as such matter was adjourned. Thereafter the matter was heard on 1st December, 2011
and on subsequent dates both on merits of the High Court order and also on the
question of vires of Section 27(3) of the Act.
the Court is to examine the constitutional validity of Section 27, sub-section (3)
of the Act, for a proper appreciation of the questions involved, Section 27 of
the Act is set out below:- "27.Punishment for using arms, etc.- (1)
Whoever uses any arms or ammunition in contravention of section 5 shall be punishable
with imprisonment for a term which shall not be less than three years but which
may extend to seven years and shall also be liable to fine. (2) Whoever uses any
prohibited arms or prohibited ammunition in contravention of section 7 shall be
punishable with imprisonment for a term which shall not be less than seven
years but which may extend to imprisonment for life and shall also be liable to
fine. (3) Whoever uses any prohibited arms or prohibited ammunition or does any
act in contravention of section 7 and such use or act results in the death of any
other person, shall be punishable with death."
present form of Section 27 including Section 27(3) has come by way of amendment,
namely, by Amending Act 42 of 1988, the previous Section 27 was substituted. The
Arms Act was enacted in 1959. At the time when it was enacted, Section 27 was in
the following form:- "27. Punishment for possessing arms, etc., with
intent to use them for unlawful purpose - Whoever has in his possession any
arms or ammunition with intent to use the same for any unlawful purpose or to
enable any other person to use the same for any unlawful purpose shall, whether
such unlawful purpose has been carried into effect or not, be punishable with imprisonment
for a term which may extend to seven years, or with fine or with both."
Statements of Objects and Reasons of Act 42 of 1988 (the Amending Act) are as
follows:- "Act 42 of 1988. - The Arms Act, 1959 had been amended to provide
for enhanced punishments in respect of offences under that Act in the context of
escalating terrorist and anti-national activities. However, it was reported
that terrorist and anti-national elements, particularly in Punjab had in the recent
past acquired automatic firearms, machine guns of various types, rockets and rocket
Although the definitions
of the expressions "arms", "ammunitions", "prohibited arms"
and "prohibited ammunition" included in the Act are adequate to cover
the aforesaid lethal weapons in the matter of punishments for offences relating
to arms, the Act did not make any distinction between offences involving
ordinary arms and the more lethal prohibited arms and prohibited ammunition. Further
while the Act provided for punishment of persons in possession of arms and ammunition
with intent to use them for any unlawful purpose, it did not provide for any penalties
for the actual use of illegal arms.
To overcome these deficiencies,
it was proposed to amend the Act by providing for deterrent punishment for offences
relating to prohibited arms and ammunition and for the illegal use of firearms and
ammunition so as to effectively meet the challenges from the terrorist and anti-national
elements. 1 Accordingly, the Arms (Amendment) Ordinance, 1988 was promulgated by
the President on the 27th May, 1988. The Ordinance amended the Act to provide for
the followings among other things namely:- (i) The definitions of "ammunition"
and "prohibited ammunition" have been amended to include missiles so
as to put the matter beyond any doubt; (ii) Deterrent punishments have been provided
for offences involving prohibited arms and prohibited ammunition; (iii) Punishments
have also been provided for the use of illegal arms and ammunition and death
penalty has been provided if such use causes death."
perusal of Section 27, sub-section (3), the vires of which has been challenged,
shows that if by mere use of any prohibited arms or prohibited ammunitions or
if any act is done by any person in contravention of Section 7, he shall be
punishable with death.
7 of the said Act prohibits acquisition or possession, or manufacture or sale of
prohibited arms or prohibited ammunitions. The said Section 7 is set out
below:- "7. Prohibition of acquisition or possession, or of manufacture or
sale, of prohibited arms or prohibited ammunition.- No person shall-- (a) acquire,
have in his possession or carry; or (b) use, manufacture, sell, transfer, convert,
repair, test or prove; or (c) expose or offer for sale or transfer or have in his
possession for sale, transfer, conversion, repair, test or proof; any prohibited
arms or prohibited ammunition unless he has been specially authorised by the Central
Government in this behalf."
the definition clause prohibited ammunitions and prohibited arms have been defined
respectively under Section 2, sub-Sections (h) and (i) respectively of the said
Act. Those definitions are set out below:- "(h) "Prohibited ammunition"
means any ammunition, containing, or designed or adapted to contain, any noxious
liquid, gas or other such thing, and includes rockets, bombs, grenades, shells,
missiles articles designed for torpedo service and submarine mining and such other
articles as the Central Government may, by notification in the Official Gazette,
specify to be prohibited ammunition;"
"prohibited arms" means-- (i) firearms so designed or adapted that, if
pressure is applied to the trigger, missiles continue to be discharged until pressure
is removed from the trigger or the magazine containing the missiles is empty,
or (ii) weapons of any description designed or adapted for the discharge of any
noxious liquid, gas or other such thing, and includes artillery, anti-aircraft and
anti-tank firearms and such other arms as the Central Government may, by notification
in the Official Gazette, specify to be prohibited arms;"
word `acquire', `possession' or `carry' has not been defined under the said Act
nor the word `used', `manufacture', `sale', `convert', `repair', `test' or `prove'
have been defined in the Act. The word `transfer' has only been defined in Section
2(k) to mean as follows:- "(k) "transfer" with its grammatical variations
and cognate expressions, includes letting on hire, lending, giving and parting
7 imposes a prohibition on certain acts in respect of prohibited arms and ammunitions
but Section 7 does not spell out the penalty. The penalty for contravention of Section
7 is provided under Section 27(3) of the Act as mentioned above.
we look at Section 27, which has been set out above, it is divided into three sub-sections.
Sub- section 1 prescribes that if any person who uses any arms or ammunition in
contravention of section 5 he shall be punishable with imprisonment for a term which
shall not be not less than three years but which may extend to seven years and
he shall also be liable to fine. Section 5 prohibits manufacture, sale of arms and
ammunition. Sub-section (2) of Section 27 provides for higher punishment, inter
alia, on the ground that whoever uses any prohibited arms or prohibited ammunition
in contravention of Section 7, he shall be punishable with imprisonment for a term
which shall not be less than seven years but which may extend to imprisonment
for life and he shall also be liable to fine.
7 prohibits acquisition or possession, or of manufacture or sale, of prohibited
arms or prohibited ammunition. Therefore, between Section 5 and Section 7 of
the Act a distinction has been made since manufacture and sale of arms and
ammunition is dealt with in Section 5 but Section 7 deals with prohibition of acquisition
or possession, or of manufacture or sale, of prohibited arms and ammunition. Therefore,
there is a reasonable classification between Section 5 and Section 7 of the
Act. Consequently, there is valid classification between Sections 27(1) and 27(2)
on the severity of the punishment.
But so far as sub-section (3) of Section 27 is concerned, the same stands apart
in as much as it imposes a mandatory death penalty. The difference between sub-section
(2) and sub-section (3) of Section 27 is that under sub-section (2) of Section 27
if a person uses any prohibited arms or ammunition in contravention of Section 7,
he shall 1be punished with imprisonment for a term of less than seven years which
may extend to imprisonment for life and also with fine. But if the said use or
act prohibited under Section 7 results in the death of any other person he shall
be punishable with death penalty.
27(3) is very wide in the sense anything done in contravention of Section 7 of the
Act and with the use of a prohibited arms and ammunition resulting in death
will attract mandatory death penalty. Even if any act done in contravention of Section
7, namely, acquisition or possession, or manufacture or sale, of prohibited arms
results in death of any person, the person in contravention of Section 7 shall be
punished with death.
This is thus a very drastic
provision for many reasons. Apart from the fact that this imposes a mandatory death
penalty the Section is so widely worded to the extent that if as a result of
any accidental or unintentional use or any accident arising out of any act in contravention
of Section 7, death results, the only punishment, which has to be mandatorily imposed
on the person in 1 contravention is, death. It may be also noted in this connection
that language used is `results' which is wider than the expression `causes'. The
word `results' means the outcome and is wider than the expression `causes'.
very wide expression has been used in Section 27(3) of the Act and without any guideline
leading to mandatory punishment of death penalty.
this connection we may compare Section 302 of the IPC with Section 27(3) of the
Act. Section 302 is as follows: "302. Punishment for murder.- Whoever commits
murder shall be punished with death, or imprisonment for life, and shall also
be liable to fine.
In Section 302 of IPC death penalty is not mandatory but it is optional. Apart from
that the word `murder' has been very elaborately defined in Section 300 of IPC with
various exceptions and explanations. Section 300 of IPC is set out below: "300.
Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if
the act by which the death is caused is done with the intention of causing
death, or- Secondly.-If it is done with the intention of causing such bodily injury
as the offender knows to be likely to cause the death of the person to whom the
harm is caused, or Thirdly.-
If it is done with the
intention of causing bodily injury to any person and the bodily injury intended
to be inflicted is sufficient in the ordinary course of nature to cause death,
or- Fourthly.-If the person committing the act knows that it is so imminently dangerous
that it must, in all probability, cause death or such bodily injury as is likely
to cause death, and commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid. Exception 1.-
homicide is not murder.-Culpable homicide is not murder if the offender, whilst
deprived of the power of self-control by grave and sudden provocation, causes the
death of the person who gave the provocation or causes 1 the death of any other
person by mistake or accident. The above exception is subject to the following
provisos:- First.-That the provocation is not sought or voluntarily provoked by
the offender as an excuse for killing or doing harm to any person. Secondly.-
That the provocation is
not given by anything done in obedience to the law, or by a public servant in the
lawful exercise of the powers of such public servant. Thirdly.-That the
provocation is not given by anything done in the lawful exercise of the right
of private defence. Explanation.-Whether the provocation was grave and sudden enough
to prevent the offence from amounting to murder is a question of fact.
But in the case of Section 27(3) law is totally devoid of any guidelines and no
exceptions have been carved out. It is common ground that the said amendment of
Section 27 was brought about in 1988 which was much after the Constitution of India
has come into operation.
Parliament while making law has to function under the specific mandates of the Constitution.
Apart from the restrictions imposed on distribution of legislative powers under
Part XI of the Constitution by Article 245 onwards, the direct mandate of the
Constitution under Article 13 is that the State shall not make any law which
takes away or abridges the right conferred by Part III of the Constitution and any
law made in contravention of the same is, to the extent of contravention, void.
Article 13 is set out hereinbelow:
"13. Laws inconsistent
with or in derogation of the fundamental rights:
1. All laws in force in the
territory of India immediately before the commencement of this Constitution, in
so far as they are inconsistent with the provisions of this Part, shall, to the
extent of such inconsistency, be void.
2. The State shall not
make any law which takes away or abridges the rights conferred by this Part and
any law made in contravention of this clause shall, to the extent of the
contravention, be void.
3. In this article, unless
the context otherwise requires,-
(a) "law" includes
any Ordinance, order, bye-law, rule, regulation, 2 notification, custom or usage
having in the territory of India the force of law;
(b) "laws in force"
includes laws passed or made by a Legislature or other competent authority in the
territory of India before the commencement of this Constitution and not previously
repealed, notwithstanding that any such law or any part thereof may not be then
in operation either at all or in particular areas.
4. Nothing in this
article shall apply to any amendment of this Constitution made under Article
is obvious from the aforesaid that Article 13(2) clearly prohibits the making
of any law by the State which takes away or abridges rights, conferred by Part III
of the Constitution. In the event of such a law being made the same shall be
void to the extent of contravention.
It is obvious that only the judiciary can give the declaration that a law being
in contravention of the mandate of Part-III of the Constitution is void. Therefore,
power of judicial review is inherent in our Constitution. Article 13 of the
Constitution is, therefore, a unique feature in our Constitution.
Banerjee, the learned A.S.G appearing on behalf of Union of India submitted that
after notice was issued in this matter to the Attorney General, the matter was
examined by the Government of India and a tentative decision to amend Section
27(3) of the Act retrospectively with effect from 27th May, 1988 was under the contemplation
of the Government. Pursuant to such exercise, the Union Home Minister gave notice
to the Secretary General of the Lok Sabha on 17th November, 2011 of its intention
to move for leave to introduce the said Bill in the Lok Sabha and the Bill was introduced
in the Lok Sabha in the following form. The form in which it is sought to be introduced
in the Lok Sabha is as follows:
"Be it enacted by
Parliament in the Sixty-second year of the Republic of India as follows:- 2 1. (1)
This Act may Short title be called the Arms and (Amendment) Act, 2011 commencement
(2) It shall be deemed to have come into force on the 27th day of May, 1988 54 of
2. In the Arms Act, 1959 in Section 27, in 1959 sub-section (3), for the words "shall
be punishable with death" The words "shall be punishable with death or
imprisonment for life and shall also be liable to fine", shall be
Addl. Solicitor General submitted that in the light of the aforesaid pronouncement
by this Court in Mithu vs. State of Punjab - (1983) 2 SCC 277, the government is
examining the question of making suitable amendments as indicated above to Section
27(3) of the Act.
Court, however, is not inclined to defer its decision. The Court, however, cannot
refuse to examine the provision in view of a very fair stand taken by learned
Judges of this Court have taken an oath to uphold and preserve the Constitution
and it is well known that this Court has to protect the Constitution as a sentinel
on the qui vive against any abridgement of its principles and percepts.
may be noted that Section 27(3) as it stands as on date was considered by this Court
in several judgments. Those judgments are noted hereinbelow.
was considered in the case of Subhash Ramkumar Bind Alias Vakil and another vs.
State of Maharashtra reported in (2003) 1 SCC 506. In that case the appellant Bind
was charged under Section 302/34 and also under Section 27(3) of the Act and death
sentence was awarded to Bind by the Sessions Court and the same was affirmed by
the High Court. This Court while reducing the death sentence awarded by the High
Court to one of life did not pronounce on the constitutional validity of
Section 27(3) even though this Court referred to the statement of Objects and Reasons
of the Amending Act which introduced Section 27(3).
This Court found that
the arms in question could not be brought within the definition of `prohibited arms'
as defined under Section 2(i) of the Act. This Court held that in order to bring
the arms in question within the prohibited arms, the requirement of the statute
was to issue a formal notification in the Official Gazette but as the State was
relying on an administrative notification, this Court held that the same cannot
be treated as a gazette notification and the conviction of Bind under Section 27(3)
of the Act was set aside. This Court did not pronounce either way on the
constitutional validity of Section 27(3). Therefore, the decision in Bind (supra)
is not an authority on the constitutional validity of Section 27(3) of the Act.
23 was again considered by this Court in the case of Surendra Singh Rautela vs.
State of Bihar (now State of Jharkhand) - (2002) 1 SCC 266. The appellant Surendra
Singh Rautela was initially convicted under Section 27(3) of the Arms Act and was
given death penalty. Thereafter, the same sentence was set aside by the High
Court on merits.
Surendra Singh (supra), before this Court learned senior counsel appearing on
behalf of the State very fairly stated that he was not in a position to challenge
the order of acquittal of the appellant under Section 27(3) on merits. Therefore,
the question of constitutional validity of Section 27(3) was neither canvassed nor
examined before this Court.
question of constitutional validity of Section 27(3) of the Arms Act was referred
to Full Bench of Punjab and Haryana High Court in the case of State of Punjab vs.
Swaran Singh - Murder Reference No. 5 of 2000 decided on 26.5.2009.
matter went before the Full Bench as the Division Bench of the High Court of Punjab
and Haryana expressed doubt about the correctness of the decision rendered by the
Division Bench in Santokh Singh vs. State of Punjab, 2000(3) Recent Criminal Reports
following questions were raised: (i) Whether the judgment of Division Bench is correct
in law? (ii) Whether section 27(3) of the Arms Act is unconstitutional being
violative of Article 14 and 21 of the Constitution of India?
Court found that a 303 rifle has not been notified as a prohibited arm by the Central
Government. The Court dealt with the provisions of Rule 3 and Schedule I to the
said Rules categorising arms and ammunition for the purpose of Rule 3 under the
such consideration, the Full Bench, on a careful reading of Rules 3 and 4 and two
Schedules, came to a conclusion that in the absence of a notification by the Government
declaring 303 rifle as a prohibited arm, the said weapon cannot be treated as the
one prohibited under the Act and accordingly affirmed the view taken in the
case of Santokh Singh (supra). However, the Full Bench did not answer the question
No.2 in the light of the law declared in Mithu (supra). Therefore the
constitutional validity of Section 27(3) has not been decided by the Full Bench.
The question of constitutional validity of mandatory death sentence was examined
by this court in Mithu (supra). In that case the constitutional validity of 2 Section
303 of IPC came up for consideration. Provision of Section 303 of IPC is set
out below: "303. Punishment for murder by life- convict.- Whoever, being
under sentence of imprisonment for life, commits murder shall be punished with
Chief Justice Y.V. Chandrachud giving the majority opinion held that the sentence
of death, prescribed by Section 303 of IPC for the offence of murder committed by
a person who is under a sentence of life imprisonment is a savage sentence and this
Court held that the same is arbitrary and oppressive being violative of Articles
21 and 14 of the Constitution. Relevant para 23 at page 296 of the report is
set out below:
"23. On a consideration
of the various circumstances which we have mentioned in this judgment, we are of
the opinion that Section 303 of the Penal Code violates the guarantee of
equality contained in Article 14 as also the right conferred by Article 21 of the
Constitution that no person shall be deprived of his life or personal liberty except
according to procedure established by law. The section was originally conceived
to discourage assaults by life convicts on the prison staff, but the legislature
chose language which far exceeded its intention.
The Section also assumes
that life convicts are a dangerous breed of humanity as a class. That
assumption is not supported by any scientific data. As observed by the Royal
Commission in its Report on "Capital Punishment": "There is a popular
belief that prisoners serving a life sentence after conviction of murder form a
specially troublesome and dangerous class. That is not so. Most find themselves
in prison because they have yielded to temptation under the pressure of a combination
of circumstances unlikely to recur.
"In Dilip Kumar Sharma
v. State of M.P., this Court was not concerned with the question of the vires of
Section 303, but Sarkaria, J., in his concurring judgment, described the vast sweep
of that Section by saying that "the section is Draconian in severity, relentless
and inexorable in operation" [SCC para 22, p. 567: SCC (Cri) p. 92]. We strike
down Section 303 of the Penal Code as unconstitutional and declare it void. It is
needless to add that all cases of murder will now fall under Section 302 of the
Penal Code and there shall be no mandatory sentence of death for the offence of
the said judgment, Chief Justice Y.V. Chandrachud, who was delivering the majority
judgment observed that the court has to exercise its discretion in the matter of
life and death. In the opinion of the learned Chief Justice any sentencing process
by which the legislature deprives the courts of their legitimate jurisdiction to
exercise their discretion not to impose the death sentence in appropriate cases,
and compels them to shut their eyes to mitigating circumstances is unconscionable.
The relevant observations made in paragraphs 12 and 16 are set out below "12.
The other class of
cases in which, the offence of murder is committed by a life convict while he is
on parole or on bail may now be taken up for consideration. A life convict who is
released on parole or on bail may discover that taking undue advantage of his absence,
a neighbour has established illicit intimacy with his wife. If he finds them in
an amorous position and shoots the seducer on the spot, he may stand a fair chance
of escaping from the charge of murder, since the provocation is both grave and sudden.
But if, on seeing his
wife in the act of adultery, he leaves the house, goes to a shop, procures a weapon
and returns to kill her paramour, there would be evidence of what is called mens
rea, the intention to kill. And since, 3he was not acting on the spur of the
moment and went away to fetch a weapon with murder in his mind, he would be
guilty of murder. It is a travesty of justice not only to sentence such a
person to death but to tell him that he shall not be heard why he should not be
sentenced to death. And, in these circumstances, now does the fact that the accused
was under a sentence of life imprisonment when he committed the murder, justify
the law that he must be sentenced to death?
In ordinary life, we
will not say it about law, it is not reasonable to add insult to injury. But, apart
from that, a provision of law which deprives the Court of the use of its wise and
beneficent discretion in a matter of life and death, without regard to the circumstances
in which the offence was committed and, therefore, without regard to the
gravity of the offence, cannot but be regarded as harsh, unjust and unfair. It has
to be remembered that the measure of punishment for an offence is not afforded
by the label which that offence bears, as for example `theft', `breach of
trust' or `murder'.
The gravity of the offence
furnishes the guideline for punishment and one cannot determine how grave the offence
is without having regard to the circumstances in which it was committed, its motivation
and its repercussions. The legislature cannot make relevant circumstances irrelevant,
deprive the courts of their legitimate jurisdiction to exercise their discretion
not to impose the death sentence in appropriate cases, compel them to shut their
eyes to mitigating circumstances and inflict upon them the dubious and
unconscionable duty of imposing a preordained sentence of death.
Equity and good conscience
are the hallmarks of justice. The mandatory sentence of death prescribed by Section
303, with no discretion left to the court 3to have regard to the circumstances which
led to the commission of the crime, is a relic of ancient history. In the times
in which we live, that is the lawless law of military regimes. We, the people of
India, are pledged to a different set of values. For us, law ceases to have respect
and relevance when it compels the dispensers of justice to deliver blind verdicts
by decreeing that no matter what the circumstances of the crime, the criminal shall
be hanged by the neck until he is dead.
16. Thus, there is no
justification for prescribing a mandatory sentence of death for the offence of
murder committed inside or outside the prison by a person who is under the
sentence of life imprisonment. A standardized mandatory sentence, and that too in
the form of a sentence of death, fails to take into account the facts and circumstances
of each particular case. It is those facts and circumstances which constitute a
safe guideline for determining the question of sentence in each individual case.
"The infinite variety
of cases and facets to each would make general standards either meaningless `boiler
plate' or a statement of the obvious......." As observed by Palekar, J., who
spoke for a Constitution Bench in Jagmohan Singh v. State of U.P.: [SCC para 26,
p. 35: SCC (Cri) p. 184] "The impossibility of laying down standards is at
the very core of the criminal law as administered in India which invests the judges
with a very wide discretion in the matter of fixing the degree of punishment....
The exercise of judicial discretion on well-recognised principles is, in the 3 final
analysis, the safest possible safeguard for the accused.
In his concurring judgment Justice O. Chinnappa Reddy held as follows: "25.
Judged in the light shed by Maneka Gandhi and Bachan Singh, it is impossible to
uphold Section 303 as valid. Section 303 excludes judicial discretion. The
scales of justice are removed from the hands of the Judge so soon as he pronounces
the accused guilty of the offence. So final, so irrevocable and so irrestitutable
[sic irresuscitable] is the sentence of death that no law which provides for it
without involvement of the judicial mind can be said to be fair, just and reasonable.
Such a law must necessarily be stigmatised as arbitrary and oppressive. Section
303 is such a law and it must go the way of all bad laws. I agree with my Lord Chief
Justice that Section 303, Indian Penal Code, must be struck down as unconstitutional."
is now well settled that in view of decision in Maneka Gandhi vs. Union of
India - (1978) 1 SCC 248, Bachan Singh Vs. State of Punjab - (1980) 2 SCC 684 and
Mithu (supra) `due process of law' is part of our Constitutional jurisprudence.
Constitution Bench in Sunil Batra vs. Delhi Administration and Others - (1978) 4
SCC 494, has also held that the guarantee against cruel and harsh punishment
given in the Eighth Amendment of the U.S. Constitution is also part of our constitutional
guarantee. Once the concept of `due process of law' and the guarantee against
harsh and cruel punishment (Eighth Amendment of the U.S. Constitution) are woven
in our Constitutional guarantee, it is the duty of this Court to uphold the same
whenever any statute even prima-facie seeks to invade the same. This also seems
to be the mandate of Article 13(2) of the Constitution of India.
Banerjee, learned ASG has rendered considerable assistance to this Court by placing
before the Court judgments from different jurisdiction on the question of mandatory
capital punishment and also decisions where Court examined cases of cruel and
unusually harsh punishment.
In this connection we may refer to the judgment of the U.S. Supreme Court in the
case of James Tyrone Woodson and Luby Waxton vs. State of North Carolina, 428 US
280 = 49 L Ed 2d 944. In that case the petitioners were convicted of first
degree murder in view of their participation in an armed robbery of a food
store. In the course of committing the crime a cashier was killed and a customer
was severely wounded. The petitioners were found guilty of the charges and
sentenced to death.
The Supreme Court of North
Carolina affirmed the same. But then certiorari was granted by the U.S. Supreme
Court to examine the question whether imposition of death penalty in that case constituted
a violation of the Eighth and Fourteenth Amendments of the U.S. Constitution. The
factual background of that case is that in 1974 North Carolina General Assembly
codified a statute making death the mandatory sentence for all persons convicted
of first degree murder. Stewart, J., speaking for the Court held that the said mandatory
death sentence was unconstitutional and violated the Eighth Amendment.
The learned Judge
held:- "...A process that accords no significance to relevant facets of
the character and record of the individual offender or the circumstances of the
particular offense excludes from consideration in fixing the ultimate punishment
of death the possibility of compassionate or mitigating frailties of humankind.
It treats all persons convicted of a designated offense not as uniquely individual
human beings, but as members of a faceless, undifferentiated mass to be subjected
to the blind infliction of the penalty of death. ....
This Court has previously
recognized that "for the determination of sentences, justice generally requires
consideration of more than the particular acts by which the crime was committed
and that there be taken into account the circumstances of the offense together with
the character and propensities of the offender." ....Consideration of both
the offender and the offense in order to arrive at a just and appropriate sentence
has been viewed as a progressive and humanizing development. ...
While the prevailing practice
of individualizing sentencing determinations generally reflects simply enlightened
policy rather than a constitutional imperative, we believe that in capital cases
the fundamental respect for humanity underlying the Eighth Amendment, see Trop v
Dulles, 356 US, at 100, 2 L Ed 2d 630, 78 S Ct 590 (plurality opinion), requires
consideration of the character and record of the individual offender and the circumstances
of the particular offense as a constitutionally indispensable part of the process
of inflicting the penalty of death. ...
This conclusion rests
squarely on the predicate that the penalty of death is qualitatively different from
a sentence of imprisonment, however long. Death, in its finality, differs more from
life imprisonment than a 100-year prison term differs from one of only a year or
two. Because of that 3 qualitative difference, there is a corresponding difference
in the need for reliability in the determination that death is the appropriate
punishment in a specific case.
However, strong dissent was expressed by Justice White, Chief Justice Burger and
Justice Rehnquist. According to these learned Judges, North Carolina statute providing
for mandatory death penalty upon proof of guilt in a case of first degree murder
was constitutionally valid.
similar conclusion was pronounced on the same day i.e. 2nd July, 1976 in Stanislaus
Roberts vs. State of Louisiana, 428 US 325 = 49 L Ed 2d 974 in a case of death penalty
for a crime of first degree murder under the laws of Louisiana. Justice John Paul
Stevens giving the majority opinion observed at pages 981-982 of the report as
"...The history of
mandatory death penalty statutes indicates a firm societal view that limiting the
scope of capital murder is an inadequate response to the harshness and inflexibility
of a mandatory death sentence statute. ... A large group of jurisdictions first
responded to the unacceptable severity of the common-law rule of automatic death
sentences for all murder convictions by narrowing the definition of capital homicide.
Each of these jurisdictions found that approach insufficient and subsequently substituted
discretionary sentencing for mandatory death sentences. See Woodson v North Carolina,
ante, at 290-292, 49 L Ed 2d 944, 96 S Ct 2978."
"The futility of
attempting to solve the problems of mandatory death penalty statutes by narrowing
the scope of the capital offense stems from our society's rejection of the
belief that "every offense in a like legal category calls for an identical
punishment without regard to the past life and habits of a particular offender".
Williams v New York, 337 US 241, 247, 93 L Ed 1337, 69 S Ct 1079 (1949). See also
Pennsylvania v Ashe, 302 US 51, 55, 82 L Ed 43, 58 S Ct 59 (1937)."
vice of mandatory death sentence statutes - lack of focus on the circumstances of
the particular offense and the character and propensities of the offender - is not
resolved by Louisiana's limitation of first-degree murder to various categories
of killings. The diversity of circumstances presented in cases falling within
the single category of killings during the commission of a specified felony, as
well as the variety of possible offenders involved in such crimes, underscores the
rigidity of Louisiana's enactment and its similarity to the North Carolina statute.
Even the other more narrowly drawn categories of first-degree murder in the Louisiana
law afford no meaningful opportunity for consideration of mitigating factors presented
by the circumstances the particular crime or by the attributes of the
Here also Chief Justice Burger, White J., Balckmum, J., and Rehnquist, J., dissented
and upheld the constitutionality of the Louisiana statute.
Harry Roberts vs. State of Louisiana, 431 US 633 = 52 L Ed 2d 637, the case
arose out of a Louisiana statute imposing mandatory death penalty for the first
degree murder of a police officer. The Court opined:- "To be sure, the fact
that the murder victim was a peace officer performing his regular duties may be
regarded as an aggravating circumstance. There is a special interest in affording
protection to these public servants who regularly must risk their lives in order
to guard the safety of other persons and property.
But it is incorrect to
suppose that no mitigating circumstances can exist when the victim is a police officer.
Circumstances such as the youth of the offender, the absence of any prior conviction,
the influence of drugs, alcohol, or extreme emotional disturbance, and even the
existence of circumstances which the offender reasonably believed provided a moral
justification for his conduct are all examples of mitigating facts which might attend
the killing of a peace officer and which are considered relevant in other jurisdictions.
As we emphasized repeatedly
in Roberts and its companion cases decided last Term, it is essential that the capital
sentencing decision allow for consideration of whatever mitigating circumstances
may be relevant to either the particular offender or the particular offense. Because
the Louisiana statute does not allow for consideration of particularized mitigating
factors, it is unconstitutional."
death penalty was set aside by the majority and the matter was remitted for further
proceeding. Here also Chief Justice Burger, Justice Blackmum, Justice White and
Justice Rehnquist gave strong dissents, opining that the statute was constitutionally
similar question came up before the U.S. Supreme Court in George Summer vs. Raymond
Wallace Shuman, 483 US 66 = 97 L Ed 2d
This case came from Nevada which mandated death penalty for murder committed by
a person while serving a life sentence without the possibility of parole. The statutory
provision considered in this case is somewhat akin to Section 303 of Indian Penal
Code. Justice Blackmum delivering the majority opinion held that Nevada statute
was unconstitutional being violative of Eighth and Fourteenth Amendments.
The learned Judge
held:- "......This Court has recognized time and again that the level of criminal
responsibility of a person convicted of murder may vary according to the extent
of that individual's participation in the crime. See, e.g., Tison v Arizona, 481
US 137, 95 L Ed 2d 127,107 S Ct 1676 (1987); Enmund Florida, 458 US 782, 73 L
Ed 2d 1140, 102 S Ct 3368 (1982). Just as the level of an offender's involvement
in a routine crime varies, so too can the level of involvement of an inmate in a
violent prison incident. An inmate's participation may be sufficient to support
a murder conviction, but in some cases it may not be sufficient to render death
an appropriate sentence, even though it is a life-term inmate or an inmate serving
a particular number of years who is involved. ......The circumstances surrounding
any past offense may vary widely as well.
of the nature of the predicate life-term offense and the circumstances surrounding
the commission of that offense, the label "life-term inmate" reveals
little about the inmate's record or character. Even if the offense was first- degree
murder, whether the defendant was the primary force in that incident, or a no triggerman
like Shuman, may be relevant to both his criminal record and his character. Yet
under the mandatory statute, all predicate life-term offenses are given the same
weight - a weight that is deemed to outweigh any possible combination of mitigating
"56. The Court insisted
on a guided discretion on the statute by holding:- 4 "...state interests can
be satisfied fully through the use of a guided-discretion statute that ensures adherence
to constitutional mandate of heightened reliability in death-penalty determinations
through individualized sentencing procedures. Having reached unanimity on the constitutional
significance of individualized sentencing in capital cases, we decline to depart
from that mandate in this case today. We agree with the courts below that the statute
under which respondent Shuman was sentenced to death did not comport with the Eighth
and Fourteenth Amendments.
This judgment was also dissented by Justice White, Chief Justice Rehnquist and
this connection if we look at some of the judgments delivered by the Privy Council
we would find the same principle has been followed in Reyes vs. The Queen,
(2002) 2 AC 235 = (2002) UKPC
In Reyes (supra) the appellant was convicted and sentenced to death under the laws
of Belize he committed the murder by shooting. The Privy Council granted leave to
the accused to raise two issues on constitutional points - (i) mandatory death penalty
infringes both the protection against subjection to inhuman or degrading punishment
or other treatment in violation of rights under Section 7 of the Constitution of
Belize and also in violation of the right to life protected under Sections 3 and
4 of the said Constitution.
The second issue was on
the constitutionality of hanging. Section 4(1) and Section 7 of the Constitution
of Belize are as follows:- "4(1). A person shall not be deprived of his
life intentionally save in execution of the sentence of a court in respect of a
criminal offence under any law of which he has been convicted." "7.
No person shall be subjected to torture or to inhuman or degrading punishment or
other treatment."59. In the case of Reyes (supra) the decision of this Court
in Mithu (para 36 page 252 of the report) as also the decision of this Court in
Bachan Singh (para 43, page 256 of the report) were considered.
The Board observed:- "...The
Board is however satisfied that the provision requiring sentence of death to be
passed on the defendant on his conviction of murder by shooting subjected him to
inhuman or degrading punishment or other treatment incompatible with his right under
section 7 of the Constitution in that it required sentence of death to be
passed and precluded any judicial consideration of the humanity of condemning him
to death. The use of firearms by dangerous and aggressive criminals is an undoubted
social evil and, so long as the death penalty is retained, there may well be
murders by shooting which justify the ultimate penalty.
But there will also be
murders of quite a different character (for instance, murders arising from sudden
quarrels within a family, or between neighbours, involving the use of a firearm
legitimately owned for no criminal or aggressive purpose) in which the death penalty
would be plainly excessive and disproportionate. In a crime of this kind there may
well be matters relating both to the offence and the offender which ought properly
to be considered before sentence is passed. To deny the offender the opportunity,
before sentence is passed, to seek to persuade the court that in all the circumstances
to condemn him to death would be disproportionate and inappropriate is to treat
him as no human being should be treated and thus to deny his basic humanity, the
core of the right which section 7 exists to protect...
paragraph 44 at page 257 of the report the Board made a very valid and very interesting
distinction between mercy and justice, which is set out below:- "......Mercy,
in its first meaning given by the Oxford English Dictionary, means forbearance and
compassion shown by one person to another who is in his power and who has no claim
to receive kindness. Both in language and literature mercy and justice are contrasted.
The administration 4 of
justice involves the determination of what punishment a transgressor deserves, the
fixing of the appropriate sentence for the crime. The grant of mercy involves the
determination that a transgressor need not suffer the punishment he deserves,
that the appropriate sentence may for some reason be remitted. The former is a judicial,
the latter an executive, responsibility.......It has been repeatedly held that not
only determination of guilt but also determination of the appropriate measure of
punishment are judicial not executive functions. .... The opportunity to seek mercy
from a body such as the Advisory Council cannot cure a constitutional defect in
the sentencing process."
Privy Council thus overruled the decision of the Court of Appeal of Belize.
Regina v. Hughes, (2002) 2 AC 259 = (2002) UKPC 12, the defendant (accused) was
convicted by the High Court of Saint Lucia for murder. The Criminal Code of Saint
Lucia provided death sentence to be imposed on anybody who is convicted of murder
and Hughes was sentenced to death. The Board found that under Section 178 of the
Criminal Code, imposition of death sentence for murder was mandatory and the Court
had no power to impose a lesser sentence.
The Board held such inhuman
and degrading sentencing procedure to be void. In this case also this Court's decision
in Mithu (supra) and Bachan Singh (supra) were considered by the Privy Council.
In paragraph 52, the Board held:- "......It follows that the decision as to
the appropriate penalty to impose in the case of murder should be taken by the judge
after hearing submissions and, where appropriate, evidence on the matter. In reaching
and articulating such decisions, the judges will enunciate the relevant factors
to be considered and the weight to be given to them, having regard to the situation
in Saint Lucia. The burden thus laid on the shoulders of the judiciary is undoubtedly
heavy but it is one that has been carried by judges in other systems. Their Lordships
are confident that the judges of Saint Lucia will discharge this new responsibility
with all due care and skill.
the constitutionality of Section 178 of the statute was not affirmed and instead
matter was left to the discretion of the judges.
question again came up before the Privy Council in the case of Fox vs. The
Queen (2002 (2) AC 284).
that case the defendant was convicted by the High Court of Saint Chrisopher and
Nevis on two counts of murder and he was sentenced to death on each count pursuant
to Section 2 of the Offences against the Person Act, 1873, which prescribed a
mandatory death sentence for murder. His appeal against conviction and sentence
was dismissed by the Eastern Caribbean Court of Appeal (Saint Christopher and Nevis).
Then the Judicial Committee
of the Privy Council granted him special leave to appeal against both conviction
and sentence. Ultimately appeal was dismissed against conviction, but on the question
of sentence the Privy Council held that Section 2 of the offences against the Person
Act, 1873 was inconsistent with section 7 of the Constitution and accordingly sentence
of death was quashed and the matter was remitted to the High Court to determine
the appropriate sentence having regard to all the circumstances of the case and
in the light of the evidence relevant to the choice of sentences. In doing so the
Privy Council applied its ratio in the case of Reyes (supra) and also the ratio
in Regina (supra).
Privy Council again had to consider the same question in Bowe & Anr. vs. The
Queen -(2006) 1 WLR 1623. In that case also both he appellants were convicted
for murder and sentenced to death in terms of the Section 312 of the Penal Code
of The Bahamas and their appeals against conviction did not succeed.
312 of the Code was challenged to the extent that it provides that persons other
than pregnant women charged for murder under Section 312 of the Code must be
punished by death sentence.
that case the Court of Appeal held by a majority that any challenge to the
constitutionality of the Code providing for mandatory sentence must be made to
the Supreme Court.
the appeal, the Privy Council held that the Court of appeal erred in construing
Article 28 of the Constitution as precluding it from entertaining a challenge
to the constitutionality of a sentencing provision.
paragraph 29 of the judgment, the Privy Council formulated the principles which
are relevant for consideration in a case of mandatory death sentence. The said
principles are set out below: (I) It is a fundamental principle of just sentencing
that the punishment imposed on a convicted defendant should be proportionate to
the gravity of the crime of which he has been convicted. (II) The criminal culpability
of those convicted of murder varies very widely. (III)Not all those convicted of
murder deserve to die. (IV) Principles (I), (II) and (III) are recognised in the
law or practice of all, or almost all, states which impose the capital penalty
for murder. (V) Under an entrenched and codified Constitution on the Westminster
model, consistently with the rule of law, any discretionary judgment on the measure
of punishment which a convicted defendant should suffer must be made by the judiciary
and not by the executive.
Privy Council answered the question in paragraphs 30, 31, 32, 34 and 35 of the
para 43 the conclusion of the Board was as follows: "The Board will accordingly
advise Her Majesty that section 312 should be construed as imposing a discretionary
and not a mandatory sentence of death. So construed, it was continued under the
1973 Constitution. These appeals should be allowed, the death sentences quashed
and the cases remitted to the Supreme Court for consideration of the appropriate
sentences. Should the Supreme court, on remission, consider sentence of death
to be merited in either case, questions will arise on the lawfulness of implementing
such a sentence, but they are not questions for the Board on these
the unreported judgment of the Privy Council in Bernard Coard and Others vs. The
Attorney General (Criminal Appeal No. 10/2006) the same principle has been
upheld. In that appeal from the Court of Appeal of Grenada, the Judicial Committee
of Privy Council consisted of Lord Bingham of Cornhill, Lord Hoffmann, Lord Phillips
of Worth Matravers, Lord Carswell and Lord Brown of Eaton-under-Heywood. The facts
were that in Grenada, a revolutionary outfit was split into two factions, one
of which was led by the appellant Bernard Coard. In a violent incident Maurice Bishop,
the then Prime Minister of Grenada and others were executed by Coard's
supporters. Over that incident, the appellants were mandatorily sentenced to death
for murder. However the Governor General commuted the death sentence to life imprisonment,
and a pardon was granted on the condition that the appellants be kept in custody
with hard labour for the remainder of their lives. The appellant challenged the
Board, while rejecting the other contention by the appellant, allowed the appeal
on the ground that the mandatory death sentence was unconstitutional. The Board
relied on its previous decision in Regina (supra). In paragraph 32 of the judgment,
the Board inclined in favour of accepting the principle of determination of a sentence
by the judiciary rather than accepting the statutory mandate of a death sentence.
The judgment by Lord Hoffmann laid down the following principles: "32. Fifthly,
and perhaps most important, is the highly unusual circumstance that, for obvious
reasons, the question of appellants' fate is so politically charged that it is
hardly reasonable to expect any Government of Grenada, even 23 years after the
tragic events of October 1983, to take an objective view of the matter. In their
Lordships opinion that makes it all the more important that the determination of
the appropriate sentence for the appellants, taking into account such progress as
they have made in prison, should be the subject of a judicial determination."
principles were followed in the High Court of Malawi in the case of Francis Kafantayeni
and Others vs. Attorney General (Constitutional Case No.12 of 2005  M.W.H.C.1).
Facts therein were that the accused was convicted of murder and sentenced to mandatory
death penalty. The challenge to the constitutionality of death penalty was on four
grounds, all based on the Malawi Constitution. The first ground related to depravation
of right to life under Section 16, the second related to inhuman and degrading treatment
under Section 19, the third related to right to a fair trial under Section 42 (2)
(f) and finally the fourth challenge was that it violated principles of separation
of powers of State.
Court, after analyzing the relevant provisions of the Constitution and the Penal
Code, and the leading authority or Reyes (supra), struck down mandatory death penalty
holding that such penalty was degrading and inhuman, and denied the right to a 5
fair trial. The Court expressed its opinion in the following words: "We agree
with counsel that the effect of the mandatory death sentence under section 210
of the Malawi Penal Code for the crime of murder is to deny the accused as a convicted
person the right to have his or her sentence reviewed by a higher court than the
court that imposed the sentence; and we hold that this is a violation of the right
to a fair trial which in our judgment extends to sentencing.
the concluding portion of the judgment, the court, by exercising a degree of caution,
observed as follows: "Pursuant to Section 5 of the Constitution, we declare
section 210 of the Penal Code to be invalid to the extent of the mandatory requirement
of the death sentence for the offence of murder. For the removal of doubt, we state
that our declaration does not outlaw the death penalty for the offence of murder,
but only the mandatory requirement of the death penalty for that offence. The
effect of our decision is to bring judicial discretion into sentencing for the
offence of murder, so that the offender shall be liable to be sentenced to death
only as the maximum punishment."
Supreme Court of Uganda, at Mengo, struck a similar note in the case of Attorney
General vs. Susan Kigula and 417 others (Constitution Appeal No.03/2006). Out of
the various issues urged before the Court, one of them was, that the laws of
Uganda, which provide for mandatory death sentence were unconstitutional and that
the carrying out of a death sentence after a long delay is a cruel, inhuman and
degrading treatment. Equally degrading is the legal mode of carrying out a death
sentence by hanging. The majority of the judges by relying upon Mithu (supra) and
Reyes (supra), James Tyrone Woodson (supra) held that imposition of mandatory death
sentence for certain offences was unconstitutional. A most pertinent ruling has
been given in the following words: "In our view if there is one situation where
the framers of the Constitution expected an inquiry, it is the one involving a death
penalty. The report of the Judge is considered so important that it forms a basis
for advising the President on the exercise of the prerogative of mercy. Why should
it not have informed the Judge in passing sentence in the first place."
the administration of justice was considered a function of the Judiciary under
Article 126 of the Constitution. The entire process of trial from the
arraignment of an accused person to his/her sentencing was what constitutes administration
of justice. By providing mandatory death penalty Parliament removed the power to
determine sentence from the Court's power and that, the Court is to be inconsistent
with Article 126 of the Constitution.
The Court further
held: "We do not agree with learned counsel for the Attorney General that because
Parliament has the powers to pass laws for the good governance of Uganda, it
can pass such laws as those providing for a mandatory death sentence. In any
case, the Laws passed by Parliament must be consistent with the Constitution as
provided for in article 2 (2) of the Constitution." It also held: "Furthermore,
the Constitution provides for the separation of powers between the Executive, the
Legislature and the 5 Judiciary.
Any law passed by Parliament
which has the effect of tying the hands of the judiciary in executing its
function to administer justice is inconsistent with the Constitution. We also agree
with Professor Sempebwa, for the respondents, that the power given to the court
under article 22 (1) does not stop at confirmation of conviction. The Court has
power to confirm both conviction and sentence. This implies a power NOT to confirm,
implying that court has been given discretion in the matter. Any law that fetters
that discretion is inconsistent with this clear provision of the Constitution.
In a still more recent decision in the case of Godfrey Ngotho Mutiso vs. Republic
(Criminal Appeal No.17/2008), the Kenyan Court of Appeal pronounced its judgment
in a criminal appeal arising from the judgment of the High Court of Kenya. The
three-judge Bench delivering the verdict, considered the matter as an issue of singular
historical moment in the country in dealing with the offence of murder and penalty
The Court formulated the following proposition: 5"In its judgment, the Court
of Appeal clarified the various issues, particularly, the fact that the appellant
did not challenge the conviction for the offence of murder nor the constitutionality
of the death penalty itself. The Court then framed the issue for determination and
listed out the various authorities relied upon by the counsel. The submissions made
by the counsel for the appellants were summarized by the Court as follows: "The
imposition of the mandatory death penalty for particular offences is neither authorized
nor prohibited in the Constitution.
As the Constitution is
silent, it is for the courts to give a valid constitutional interpretation on
the mandatory nature of sentence. Mandatory death sentence is antithetical to fundamental
human rights and there is no constitutional justification for it. A convicted person
ought to be given an opportunity to show why the death sentence should not be
passed against him. The imposition of a mandatory death sentence is arbitrary because
the offence of murder covers a broad spectrum.
Making the sentence mandatory
would therefore be an affront to the human rights of the accused. Section 204 of
the Penal Code is unconstitutional and ought to be declared a nullity. Alternatively
the word "shall" ought to be construed as "may".
There is a denial to (sic
of) a fair hearing when no opportunity is given to an accused person to offer mitigating
circumstances before sentence, which is the normal procedure in all other
trials for non- capital offences. Sentencing was part of the trial and mitigation
was an element of fair trial. Sentencing is a matter of law and part of the administration
of justice which is the preserve of the Judiciary. Parliament should therefore only
prescribe the maximum sentence and leave the courts to administer justice by sentencing
the offenders according to the gravity and circumstances of the case.
By formulating the aforesaid propositions, the Court held that Section 204 of the
Penal Code which provided for mandatory death penalty was unconstitutional.
a discordant note was struck by the Privy Council in one of its old judgments in
the case of Ong Ah Chuan vs. Public Prosecutor and Another, (1981) A.C. 648. The
judgment was rendered by Lord Diplock, in a Bench consisting of Lord Diplock,
Lord 6 Keith of Kinkel, Lord Scarman and Lord Roskill. The Board heard the appeal
from the Court of Criminal Appeal from Singapore, against a conviction for the offence
of drug trafficking of heroine in Singapore. As the amount of heroine was more than
15 grams in each case, a sentence of death was imposed on each of the defendants.
Even though, before the Court of Appeal, the constitutionality of the provisions
of the Drug Act was not challenged, leave was sought before the Board on those issues.
Especially the constitutional issue was that the provision in Section 29 in Schedule
II for mandatory death penalty for trafficking in controlled drugs, in excess of
the prescribed quantities, was unconstitutional.
The Board permitted the questions to be raised. Ultimately, the Board came to the
following findings: "The social object of the Drugs Act is to prevent the growth
of drug addition in Singapore by stamping out the illicit drug trade and, in particular,
the trade in those most dangerously addictive drugs, heroin and morphine. The social
evil caused by trafficking which the Drugs Act seeks to prevent is broadly proportional
to the quantity of addictive drugs brought on to the illicit market.
There is nothing unreasonable
in the legislature's holding the view that an illicit dealer on the wholesale
scale who operates near the apex of the distributive pyramid requires a stronger
deterrent to his transactions and deserves more condign punishment than do dealers
on a smaller scale who operate nearer the base of the pyramid. It is for the legislature
to determine in the light of information that is available to it about the structure
of the illicit drug trade in Singapore, and the way in which it is carried on, where
the appropriate quantitative boundary lies between these two classes of dealers.
No plausible reason has
been advanced for suggesting that fixing a boundary at transactions which involve
15 grams of heroin or more is so low as to be purely arbitrary. The Court also
held: "Wherever a criminal law provides for a mandatory sentence for an
offence there is a possibility that there may be considerable variation in moral
blameworthiness, despite the similarity in legal guilt of offenders upon whom the
same mandatory sentence must be passed. In the case of murder, a crime that is often
committed in the heat of passion, the likelihood of this is very real; it is
perhaps more theoretical than real in the 6 case of large scale trafficking in drugs,
a crime of which the motive is cold calculated with equal punitive treatment for
similar legal guilt." (Page 674 of the report)
their Lordships' view there is nothing unconstitutional in the provision for a mandatory
death penalty for trafficking in significant quantities of heroin and morphine.
Their Lordships held that the quantity that attracts death penalty is so high
as to rule out the notion that it is the kind of crime that might be committed by
a good hearted Samaritan out of the kindness of his heart as was suggested in the
course of argument. But if by any chance it were to happen, the prerogative of mercy
is available to mitigate the rigidity of the law which the long established
constitutional way of doing is the same in Singapore as in England. (674 of the
However the aforesaid opinion of Lord Diplock, was subsequently noticed by the Privy
Council in Bowe 6 (supra) at page 1644, wherein the decision in Ong Ah Chuan (supra)
was explained inter alia, on the ground that the Constitution of Singapore does
not have a comparable provision like the Eighth Amendment of the American Constitution
relating to cruel and unusual punishment.
is clear from the discussion hereinabove that mandatory death penalty has been found
to be constitutionally invalid in various jurisdictions where there is an independent
judiciary and the rights of the citizens are protected in a Constitution.
It has already been noted hereinabove that in our Constitution the concept of `due
process' was incorporated in view of the judgment of this Court in Maneka Gandhi
(supra). The principles of Eighth Amendment have also been incorporated in our laws.
This has been acknowledged by the Constitution Bench of this Court in Sunil
Batra (supra). In para 52 at 6 page 518 of the report, Justice Krishna Iyer speaking
for the Bench held as follows: "52. True, our Constitution has no `due process'
clause or the VIII Amendment; but, in this branch of law, after Cooper and Maneka
Gandhi the consequence is the same. For what is punitively outrageous, scandalizingly
unusual or cruel and rehabilitatively counter-productive, is unarguably unreasonable
and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural
unfairness, falls foul of Article 21.
Almost on identical principles mandatory death penalty provided under Section 303
of the Indian Penal Code has been held ultra vires by the Constitution Bench of
this Court in Mithu (supra). Apart from that it appears that in Section 27(3) of
the Act the provision of mandatory death penalty is more unreasonable inasmuch it
provides whoever uses any prohibited arms or prohibited ammunition or acts in
contravention of Section 7 and if such use or act results in the death of any other
person then that person guilty of such use or acting in contravention of Section
7 shall be punishable with death. The word `use' has not been defined in the Act.
Therefore, the word `use' has to be viewed in its common meaning. In view of
such very wide meaning of the word `use' even an unintentional or an accidental
use resulting in death of any other person shall subject the person so using to
a death penalty. Both the words `use' and `result' are very wide. Such a law is
neither just, reasonable nor is it fair and falls out of the `due process'
law which is not consistent with notions of fairness while it imposes an irreversible
penalty like death penalty is repugnant to the concept of right and reason.
In Dr. Bonham case - (1610) 8 Co Rep 114a : 77ER 646, Lord Coke explained this concept
several centuries ago. The classical formulation by Lord Coke is:- 6 "It appears
in our books, that in many cases, the common law will control acts of Parliament,
and sometimes adjudge them to be utterly void: for when an act of Parliament is
against common right and reason, or repugnant, or impossible to be performed, the
common law will control it and adjudge such act to be void.
The principle of `due process' is an emanation from the Magna Carta doctrine. This
was accepted in American jurisprudence [See Munn vs. Illinois, 24 L Ed. 77 : 94
US 113, 142 (1876)].
this was acknowledged in Planned Parenthood of Southeastern Pennsylvania vs. Casey,
120 L ED 2d 674, wherein the American Supreme Court observed as follows: "The
guarantees of due process, though having their roots in Magna Carta's `per legem
terrae' and considered as procedural safeguards `against executive usurpation and
tyranny,' have in this country `become bulwarks also against arbitrary legislation'.
All these concepts of `due process' and the concept of a just, fair and reasonable
law has been read by this Court into the guarantee under Articles 14 and 21 of the
Constitution. Therefore, the provision of Section 27(3) of the Act is violative
of Article 14 and 21 of the Constitution.
from that the said Section 27 (3) is a post Constitutional law and has to obey
the injunction of Article 13 which is clear and explicit. Article 13(2) is as
follows: "13(2) The State shall not make any law which takes away or abridges
the rights conferred by this Part and any law made in contravention of this
clause shall, to the extent of the contravention, be void.
In view of the aforesaid mandate of Article 13 of the Constitution which is an
Article within Part-III of our Constitution, Section 27(3) having been enacted in
clear contravention of Part-III rights, Section 27(3) of the Act is repugnant
to Articles 14 and 21 and is void.
27(3) of the Act also deprives the judiciary from discharging its
Constitutional duties of judicial review whereby it has the power of using discretion
in the sentencing procedure.
power has been acknowledged in Section 302 of the Indian Penal Code and in Bachan
Singh (supra) case it has been held that the sentencing power has to be exercised
in accordance with the statutory sentencing structure under Section 235(2) and also
under Section 354(3) of the Code of Criminal Procedure.
27(3) of the said Act while purporting to impose mandatory death penalty seeks to
nullify those salutary provisions in the Code. This is contrary to the law laid
down in Bachan Singh (supra).
fact the challenge to the constitutional validity of death penalty under Section
302 of Indian Penal Code has been negatived in Bachan Singh (supra) in view of the
sentencing structure in Sections 235(2) and 354 (3) of the Criminal Procedure Code.
By imposing mandatory death penalty, Section 27(3) of the Act runs contrary to those
statutory safeguards which give judiciary the discretion in the matter imposing
death penalty. Section 27(3) of the Act is thus ultra vires the concept of
judicial review which is one of the basic features of our Constitution.
has also been discussed hereinabove that the ratio in both Bachan Singh (supra)
and Mithu (supra) has been universally acknowledged in several jurisdictions
across the world and has been accepted as correct articulation of Article 21 guarantee.
Therefore, the ratio in Mithu (supra) and Bachan Singh (supra) represents the concept
of Jus cogens meaning thereby the peremptory non derogable norm in international
law for protection of life and liberty.
is why it has been provided by the 44th Amendment Act of 1978 of the Constitution,
that Article 21 cannot be suspended even during proclamation of emergency under
Article 359(vide Article 359(1)(a) of the Constitution.
Court therefore holds that Section 27(3) of the Arms Act is against the fundamental
tenets of our Constitutional law as developed by this Court.
Court declares that Section 27(3) of Arms Act, 1959 is ultra vires the Constitution
and is declared void. The appeal is thus dismissed on merits and the High Court
judgment acquitting the respondent is affirmed.
(ASOK KUMAR GANGULY)
(JAGDISH SINGH KHEHAR)