Mithu Vs. State of Punjab [1983] INSC 37
(7 April 1983)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) FAZALALI, SYED MURTAZA TULZAPURKAR, V.D.
REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)
CITATION: 1983 AIR 473 1983 SCR (2) 690 1983
SCC (2) 277 1983 SCALE (1)331
CITATOR INFO :
R 1984 SC 45 (1) F 1989 SC1335 (25,55)
ACT:
Indian Penal Code, 1860-s. 303-Constitution
of India- Arts. 14 and 21-Mandatory sentence of death for murder committed by
life-convicts is violative of rights guaranteed under Arts. 14 and 21-s. 303,
I.P.C. is unconstitutional and void
HEADNOTE:
Section 303, I.P.C. provides that whoever,
being under sentence of imprisonment for life, commits murder, shall be
punished with death Counsel for appeallants/petitioners contended that s. 303,
I.P.C. is unconstitutional not only for the reason that it is unreasonable and
arbitrary but also because it authorises deprivation of life by an unjust and
unfair procedure. Counsel for respondents on the other hand contended that
since the validity of death sentence has been upheld in Bachan Singh and since
s. 303 does no more than prescribe death sentence for the offence of murder,
the ratio of Bachan Singh should apply and the question as regards the validity
of s. 303, I.P.C. must be treated as having been concluded by that decision.
Upholding the contention of the
appellants/petitioners,
HELD: Per Chandrachud, C.J. (Chinnappa Reddy,
J Concurring) Section 303, I.P.C. is unconstitutional and void. It violates the
guarantee of equality contained in Art. 14 as also the right conferred by Art.
21 that no person shall be deprived of his life or personal liberty except
according to procedure established by law. [712-A; 711-E] (i) There is no
rational justification for making a distinction in the matter of punishment
between persons who commit murders whilst they are under the sentence of life
imprisonment and persons who commit murders whilst they are not under the
sentence of life imprisonment. Further, no rational distinction can be made in
the matter of sentencing between a person who commits murder after serving out
the sentence of life imprisonment and a person who commits murder while he is
still under that sentence. A person who stands unreformed after a long term of
incarceration is not, by any logic, entitled to preferential treatment as
compared with a person who is still under the sentence of life imprisonment.
The classification based upon such a distinction proceeds upon irrelevant
considerations and bears no nexus with the object of the statute, namely, the
imposition of a mandatory sentence of death.
[70 C-D; 704 H; 705 B-D] 691 (ii) Murders
are, by and large, committed for any one or more of a variety of motives which
operate on the mind of the offender, whether he is under a sentence of life
imprisonment or not. Such motives are too numerous and varied to enumerate but
hate, lust, sex, jealousy, gain, revenge and a host of weaknesses to which
human flesh is subject, are common motives for the generality of murders.
Those reasons can operate as a motive force
of the crime whatever may be the situation in which the criminal is placed and
whatever may be the environment in which he finds himself. [702 D-F] (iii) Even
limiting oneself to murders committed by life-convicts within the four walls of
the jail or while they are on parole or on tail, it is difficult to hold that
the prescription of the mandatory sentence of death answers the test of
reasonableness. The circumstance that a person is undergoing a sentence of life
imprisonment does not minimise the importance of mitigating factors which are
relevant on the question of sentence which should be imposed for the offence
committed by him while he is under the sentence of life imprisonment. Indeed, a
crime committed by a convict within the jail while he is under the sentence of
life imprisonment may, in certain circumstances, demand and deserve greater
consideration, understanding and sympathy than the original offence for which
he was sentenced to life imprisonment. [703 F-G; 702-H; 703 A-B] (iv) Convicts
who are sentenced to long terms of imprisonment like the sentence of life
imprisonment are subject to extraordinary stresses and strains and they should
not be discriminated against as compared with others.
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.
Research studies conducted abroad have indicated that the frequency of murders
committed by life- convicts while they are on parole is not so high as to
justify a harsher treatment being accorded to them when they are found guilty
of having committed a murder while on parole, as compared with other persons
who are guilty of murder. There is no comparable statistical data in our
country in regard to the behaviour of life convicts who are released on parole
or bail but there is no reason to assume that the incidence of murders
committed by such persons is unduly high. Indeed, if there is no scientific
investigation on this point in our country, there is no basis for treating such
persons differently from others who commit murders.[705 D-H; 706 A-H; 707 A-C]
(v) There are as many as 51 sections in the Penal Code which provide for the
sentence of life imprisonment. A person who is sentenced to life imprisonment
for any of these offences incurs the mandatory penalty of death under s. 303,
if he commits a murder while he is under the sentence of life imprisonment. It
is impossible to see the rationale of this aspect of s. 303. There might have
been the semblance of some logic to explain, if not to sustain, such a
provision if murder was the only offence for which life imprisonment was
prescribed as a punishment. It could then be argued that the intention of the
legislature was to provide for enhanced sentence for the second offence of
murder. But, under the section as it stands, a person who is sentenced to life
imprisonment for breach of trust or for sedition under s. 124-A or for
counterfeiting a coin under s. 232 or for forgery under s.467 will have to be
sentenced to death if he commits a murder while he is under the sentence of
life 692 imprisonment. There is nothing in common between such offences
previously committed and the subsequent offence of murder. Indeed, it defies
all logic to understand why such a provision was made and what social purpose
can be served by sentencing a forgerer to a compulsory punishment of death for
the mere reason that he was undergoing the sentence of life imprisonment for forgery
when he committed the offence of murder. The motivation of the two offences is
different, the circumstances in which they are committed would be different and
indeed the two offences are basically of a different genre. To prescribe a
mandatory sentence of death for the second of such offences for the reason that
the offender was under the sentence of life imprisonment for the first of such
offences is arbitrary beyond the bounds of all reason. [708 E-H; 709 A-C] (vi)
A standardised 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
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 final analysis, the safest
possible safeguard for the accused. There is no reason why in the case of a
person whose case falls under s. 303, factors like the age and sex of the
offender, the provocation received by the offender and the motive of the crime
should be excluded from consideration on the question of sentence. [707 D-H; 708-A]
Jagmohan Singh v. State of U.P. [1973] 2 S.C.R. 541, referred to.
(vii) Equity and good conscience are the
hall-marks of justice. 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 committee and, therefore
without regard to the gravity of the offence, cannot but be regarded as harsh,
unjust and unfair. 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 pre-ordained sentence of death
[704 D-F] (viii) It is because the death sentence has been made mandatory by s.
303 I.P.C. in regard to a particular class of persons that, as a necessary
consequence, they are deprived of the opportunity under s. 235 (2), Cr. P.C. to
show cause why they should not be sentenced to death and the Court is relieved
from its obligation under s. 354 (3), Cr. P.C. to state the special reasons for
imposing the sentence of death. The deprivation of these rights and safeguards
which is bound to result in injustice is harsh, arbitrary and unjust. [708 C-D]
(ix) After the decisions in Maneka Gandhi, Sunil Batra and Bachan Singh it
cannot be contended that it is for the legislature to prescribe the procedure
and for the courts to follow it or that it is for the legislature to 693
provide the punishment and for the courts to impose it. The courts are not
bound and are indeed not free, to apply a fanciful procedure by a blind
adherence to the letter of the law or to impose a savage sentence. The last
word on the question of justice and fairness does not rest with the
legislature. Just as reasonableness of restrictions under cls. (2) to (6) of
Art. 19 is for the courts to determine, so is it for the courts to decide
whether the procedure prescribed by a law for depriving a person of his life or
liberty is fair, just and reasonable. [698 G-H; 699 C-D] Maneka Gandhi v. Union
of India, [1978] 2 S.C.R. 621;
Sunil Batra v. Delhi Administration, [1979] 1
S.C.R. 392;
and Bachan Singh v. State of Punjab, [1980] 2
S.C.C. 684, referred to.
(x) In Bachan Singh the majority concluded
that s.302, I.P.C. is valid for three main reasons: Firstly, that the death
sentence provided for by s. 302 is an alternative to the sentence of life
imprisonment; secondly, that special reasons have to be stated under s. 354
(3), Cr. P.C. if the normal rule is departed from and the death sentence has to
be imposed; and, thirdly, because the accused is entitled under s. 235 (2), Cr.
P.C. to be heard on the question of sentence. The ratio of Bachan Singh,
therefore, is that, death sentence is constitutional if it is prescribed as an
alternative sentence for the offence of murder and if the normal sentence
prescribed by law for murder is imprisonment for life. Since there is a
fundamental distinction between the provisions of s. 302 and s. 303, I.P.C.,
the ratio of Bachan Singh will not govern the question as regards the validity
of s.303: whereas s. 302, I.P.C. provides for the sentence of death as an
alternative sentence, the only sentence which s. 303 I.P.C. prescribes is the
sentence of death; and since s. 303 I.P.C. does not provide for an alternative
sentence, ss.354 (3) and 235(2), Cr. P.C. have no application to cases arising
under that section.[700 D-H; 701 A-D] Bachan Singh v. State of Punjab [1980] 2
S.C.C. 684 explained.
per Chinnappa Reddy, J. (concurring):
Section 303, I.P.C. is out of tune with the
philosophy of our Constitution. It particularly offends Art. 21 and the new
jurisprudence which has sprung around since the Bank Nationalisation case.
Maneka Gandhi carried Art. 21 to nobler rights and made it the focal point
round which must now revolve to advantage all claims to rights touching life
and liberty. The procedure prescribed by law has to be fair, just and
reasonable, not fanciful, oppressive or arbitrary.
Bachan Singh sustained the validity of s.302
because the sentence of imprisonment for life and not death was the normal
punishment for murder, and the sentence of death was an alternative penalty to
be resorted to in the most exceptional of cases and the discretion to impose or
not to impose the sentence of death was given to the Judge.
Judicial discretion was what prevented the
outlawing of the sentence of death even as an alternative penalty for murder.
Judged in the light of Maneka Gandhi and
Bachan Singh, it is impossible to uphold s. 303 as valid. Section 303 excludes
judicial discretion. So final, so irrevocable and so irrestitutable 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. [712 C-H; 713 A-G]
694 Bank Nationalisation Case,[1970] 3 S.C.R. 530; Maneka Gandhi v. Union of
India, [1978] 2 S.C.R. 621; and Bachan Singh v. State of Punjab, [1980] 2
S.C.C.684, referred to.
CRIMINAL APPELLATE JURISDICTION/ORIGINAL
JURISDICTION:
Criminal Appeal No. 745 of 1980.
Appeal by Special leave from the Judgment and
Order dated the 21st December, 1979 of the Punjab & Haryana High Court in
Criminal Appeal No. 1107 of 1979 & Murder Reference No. 15 of 1979.
WITH
Writ Petition (CRL) No. 529 of 1980 (Under Article 32 of the Constitution of
India) AND Writ Petition (CRL) No. 368 of 1981 (Under Article 32 of the
Constitution of India) AND Special Leave Petition (CRL.) No. 2744 of 1980 From
the Judgment and order dated the 28th August, 1980 of the Punjab & Haryana
High Court in Criminal Appeal No. 317 of 1980 and Murder Reference No. 4 of
1980.
AND Writ Petition No. 1365 of 1982 (Under
Article 32 of the Constitution of India) AND Criminal Appeal No. 303 of 1982
Appeal by Special leave from the Judgment and Order dated the 29th & 30th
April, 1982 of the Bombay High Court in Criminal Appeal No. 180 of 1982 &
Confirmation Case No. 2/82.
AND Criminal Appeal No. 502 of 1982 Appeal by
Special leave from the Judgment and Order dated the 4th March, 1982 of the
Punjab & Haryana High Court in Criminal Appeal No. 711-DB of 1981.
695 The following Judgments were delivered
CHANDRACHUD, CJ : The question which arises for consideration in these
proceedings is whether section 303 of the Indian Penal Code infringes the
guarantee contained in Article. 21 of the Constitution which provides that
"No person shall be deprived of his life or personal liberty except
according to procedure established by law." Section 300 of the Penal Code
defines 'Murder', while section 302 reads thus:
"302. Punishment for murder-whoever
commits murder shall be punished with death, or imprisonment for life, and
shall also be liable to fine." Section 302 is not the only section in the
Penal Code which prescribes the sentence of life imprisonment.
Literally, it is one of the fifty-one sections
of that Code which prescribes that sentence. The difference between those
sections on one hand and section 302 on the other is that whereas, under those
sections life imprisonment is the maximum penalty that can be imposed, under
section 302 life imprisonment is the minimum penalty which has to be imposed.
The only option open to a court which
convicts a person of murder is to impose either the sentence of life
imprisonment or the sentence of death. The normal sentence for murder is life
imprisonment. Section 354(3) of the Code of Criminal Procedure, 1973 provides:
"354(3) When the conviction is for an
offence punishable with death or, in the alternative, with imprisonment for a
term of years, the judgment shall state the reasons for the sentence awarded,
and, in the case of sentence of death, the special reasons for such
sentence." While upholding the validity of the death sentence as a
punishment for murder, a Constitution Bench of this Court ruled in Bachan
Singh(1) that death sentence can be imposed in a very exceptional class of
cases - "the rarest of rare cases".
The Indian Penal Code was passed in 1860. The
framers of that Code achieved a measure of success in classifying offences 696
according to their subject-matter, defining them with precision and in
prescribing what, in the context of those times, was considered to be
commensurate punishment for those offences. One of the problems which they had
to deal with, was as to the punishment which should be prescribed for the
offence of murder committed by a person who is under a sentence of life
imprisonment. They solved that problem by enacting section 303, which reads
thus:
"303. Punishment for murder by life
convict-Whoever, being under sentence of imprisonment for life, commits murder,
shall be punished with death." The reason, or at least one of the reasons,
why the discretion of the Court to impose a lesser sentence was taken away and
the sentence of death was made mandatory in cases which are covered by section
303 seems to have been that if, even the sentence of life imprisonment was not
sufficient to act as a deterrent and the convict was hardened enough to commit
a murder while serving that sentence, the only punishment which he deserved was
death.
The severity of this legislative judgment
accorded with the deterrent and retributive theories of punishment which then
held sway. The reformative theory of punishment attracted the attention of
criminologists later in the day. How sternly the legislature looked at the
offence of murder committed by a life-convict can be gauged by the fact that in
the early history of the Code of Criminal Procedure, unlike as at present, if a
person undergoing the sentence of transportation for life was sentenced to
transportation for another offence, the latter sentence was to commence at the
expiration of the sentence of transportation to which he was previously
sentenced, unless the court directed that the subsequent sentence of
transportation was to run concurrently with the previous sentence of
transportation.
It was in 1955 that section 397 of the
Criminal Procedure Code of 1898 was replaced by a new section 397 by Amendment
Act 26 of 1955. Under the new sub-section (2) of section 397 which came into
force on January 1, 1956, if a person already undergoing a sentence of
imprisonment for life was sentenced on a subsequent conviction to imprisonment
for life, the subsequent sentence had to run concurrently with the previous
sentence. Section 427(2) of the Criminal Procedure Code of 1973 is to the same
effect. The object of referring to this aspect of the matter is to emphasise
that when section 303 of the Penal Code was originally enacted, the legislature
did not 697 consider that even successive sentences of transportation for life
were an adequate punishment for the offence of murder committed by a person who
was under the sentence of life imprisonment.
While enacting section 303 in terms which
create an absolute liability, the framers of the Penal Code ignored several
important aspects of cases which attract the application of that section and of
questions which are bound to arise under it. They seem to have had only one
kind of case in their mind and that is, the commission of murder of a jail
official by a life-convict. It may be remembered that in those days, jail
officials were foreigners, mostly Englishmen, and, alongside other provisions
which were specially designed for the members of the ruling class as, for
example, the choice of jurors, section 303 was enacted in order to prevent
assaults by the indigenous breed upon the white officers. In its 42nd Report
(1971), the Law Commission of India has observed in paragraph 16.17 (page 239),
that "the primary object of making the death sentence mandatory for an
offence under this section seems to be to give protection to the prison
staff". We have no doubt that if a strictly penological view was taken of
the situation dealt with by section 303, the framers of the Code would have had
a second thought on their decision to make the death sentence mandatory, even without
the aid of the constitutional constraints which operate now.
But before we proceed to point out the
infirmities from which section 303 suffers, we must indicate the nature of the
argument which has been advanced on behalf of the petitioners in order to
assail the validity of that section.
The sum and substance of the argument is that
the provision contained in section 303 is wholly unreasonable and arbitrary and
thereby, it violates Article 21 of the Constitution which affords the guarantee
that no person shall be deprived of his life or personal liberty except in
accordance with the procedure established by Law. Since the procedure by which
section 303 authorises the deprivation of life is unfair and unjust, the
section is unconstitutional.
Having examined this argument with care and
concern, we are of the opinion that it must be accepted and section 303 of the
Penal Code struck down.
In Maneka Gandhi v. Union of India,(1) it was
held by a seven Judge Bench that a statute which merely prescribes some kind of
procedure for depriving a person of his life or personal liberty cannot 698
ever meet the requirements of Article 21: The procedure prescribed by law has
to be fair, just and reasonable, not fanciful, oppressive or arbitrary.
Bhagwati J. observed in that case that "Principally, the concept of
reasonableness must be projected in the procedure contemplated by Article 21,
having regard to the impact of Article 14 on that article". In Sunil Batra
v. Delhi Administration,(1) while dealing with the question as to whether a
person awaiting death sentence can be kept in solitary confinement, Krishna
Iyer J. said that though our Constitution did not have a "due
process" clause as in the American Constitution, the same consequence
ensued after the decisions in the Bank Nationalisation case(2) and Maneka
Gandhi:
"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."
Desai J. observed in the same case that:
"The word 'Law' in the expression
'procedure established by law' in Article 21 has been interpreted to mean in
Maneka Gandhi's case that the law must be right, just and fair, and not
arbitrary, fanciful or oppressive. Otherwise it would be no procedure at all
and the requirement of Article 21 would not be satisfied. If it is arbitrary,
it would be violative of Article 14." In Bachan Singh which upheld the
constitutional validity of the death penalty, Sarkaria J., speaking for the
majority, said that if Article 21 is understood in accordance with the
interpretation put upon it in Maneka Gandhi, it will read to say that:
"No person shall be deprived of his life
or personal liberty except according to fair, just and reasonable procedure
established by valid law." (page 730) These decisions have expanded the
scope of Article 21 in a significant way and it is now too late in the day to
contend that it is for the Legislature to prescribe the procedure and for the
Court to follow it, that it is for the legislature to provide the punishment
699 and for the courts to impose it. Two instances, undoubtedly extreme, may be
taken by way of illustration for the purpose of showing how the courts are not
bound, and are indeed not free, to apply a fanciful procedure by a blind
adherence to the letter of the law or to impose a savage sentence. A law
providing that an accused shall not be allowed to lead evidence in self-defence
will be hit by Articles 14 and 21.
Similarly, if a law were to provide that the
offence of theft will be punishable with the penalty of the cutting of hands,
the law will be bad as violating Article 21. A savage sentence is anathema to
the civilized jurisprudence of Article 21. These are, of course, extreme
illustrations and we need have no fear that our legislatures will ever pass
such laws. But these examples serve to illustrate that the last word on the
question of justice and fairness does not rest with the legislature. Just as
reasonableness of restrictions under clauses (2) to (6) of Article 19 is for
the courts to determine, so is it for the courts to decide whether the
procedure prescribed by a law for depriving a person of his life or liberty is
fair, just and reasonable.
The question which then arises before us is
whether the sentence of death, prescribed by section 303 of the Penal Code for
the offence of murder committed by a person who is under a sentence of life
imprisonment, is arbitrary and oppressive so as to be violative of the
fundamental right conferred by Article 21.
Counsel for the respondents rely upon the
decision in Bachan Singh in support of their submission that the provision
contained in section 303 does not suffer from any constitutional infirmity.
They contend that the validity of death sentence was upheld in that case and
since, section 303 does no more than prescribe death sentence for the offence
of murder, the ratio of Bachan Singh would apply and the question as regards
the validity of that section must be treated as concluded by that decision.
These questions, it is said, should not be allowed to raise their head over and
over again. This argument suffers from a two-fold defect. In the first place,
it betrays a certain amount of misunderstanding of what was decided in Bachan
Singh and secondly, it overlooks the essential distinction between the
provisions of section 302 and section 303. Academicians and text book writers
have the freedom to discuss legal problems in the abstract because, they do not
have to decide any particular case. On the other hand, the decisions rendered
by the court have to be understood in the light of the legal provisions which
came up for consideration therein and in the light of the facts, if facts were
involved. The majority did not lay down any abstract proposition in Bachan
Singh 700 that "Death sentence is constitutional", that is to say,
that "It is permissible under the Constitution to provide for the sentence
of death". To be exact, the question which arose for the consideration of
the Court was not whether, under the Constitution, it is permissible to provide
for the sentence of death. The precise question which arose in that case was
whether section 302 of the Penal Code which provides for the sentence of death
as one of the two alternative sentences is valid. It may be recalled that
section 302 provides for the sentence of death as an alternative sentence which
may be imposed. The normal sentence for murder is life imprisonment; and if the
death sentence has to be imposed, the Court is under a legal obligation under
section 354(3) of the Criminal Procedure Code to state the special reasons for
imposing that sentence. That explains why, in Bachan Singh, Sarkaria J., who
spoke for the majority, underscored the words "alternative" and
"may" in paragraph 19 of the judgment, whilst observing that the
Penal Code prescribes death as an alternative punishment to which the offender
may be sentenced in cases relating to seven kinds of offences. The majority
concluded that section 302 of the Penal Code is valid for three main reasons:
Firstly, that the death sentence provided for by section 302 is an alternative
to the sentence of life imprisonment, secondly, that special reasons have to be
stated if the normal rule is departed from and the death sentence has to be
imposed; and, thirdly, because the accused is entitled, under section 235(2) of
the Code of Criminal Procedure, to be heard on the question of sentence. The
last of these three reasons becomes relevant, only because of the first of
these reasons. In other words, it is because the Court has an option to impose
either of the two alternative sentences, subject to the rule that the normal
punishment for murder is life imprisonment, that it is important to hear the
accused on the question of sentence. If the law provides a mandatory sentence
of death as section 303 of the Penal Code does, neither section 235(2) nor
section 354(3) of the Code of Criminal Procedure can possibly come into play.
If the Court has no option save to impose the sentence of death, it is
meaningless to hear the accused on the question of sentence and it becomes
superfluous to state the reasons for imposing the sentence of death. The
blatant reason for imposing the sentence of death in such a case is that the
law compels the court to impose that sentence. The ratio of Bachan Singh,
therefore, is that, death sentence is constitutional if it is prescribed as an
alternative sentence for the offence of murder and if the normal sentence
prescribed by law for murder is imprisonment for life, 701 It will be clear
from this discussion that since there is a fundamental distinction between the
provisions of section 302 and section 303 of the Penal Code, the ratio of
Bachan Singh will not govern the question as regards the validity of section
303. This latter question is res integra. Stated briefly, the distinction
between the two sections is that whereas, section 302 provides for the sentence
of death as alternative sentence, the only sentence which section 303
prescribes is the sentence of death. The Court has no option under section 303
to impose any other sentence, no matter what is the motivation of the crime and
the circumstances in which it was committed. Secondly, section 354(3) of the
Code of Criminal Procedure applies in terms to those cases only wherein
"the conviction is for an offence punishable with death or, in the
alternative, with imprisonment for life or imprisonment for a term of
years".
Since section 303 does not provide for an
alternative sentence, section 354(3) has no application to cases arising under
that section. Thirdly, section 235(2) of the Code of Criminal Procedure which
confers a right upon the accused to be heard on the question of sentence,
becomes, a meaningless ritual in cases arising under section 303. If the Court
itself has no option to pass any sentence except the sentence of death, it is
an idle formality to ask the accused as to what he has to say on the question
of sentence.
The question which we had posed for our
consideration at the beginning of this judgment was somewhat broad. In the
light of the aforesaid discussion, that question narrows itself to a
consideration of certain specific issues. The first and foremost issue which
arises specifically for our consideration is whether there is any intelligible
basis for giving differential treatment to an accused who commits the offence
of murder whilst under a sentence of life imprisonment. Can he be put in a
special class or category as compared with others who are found guilty of
murder and be subjected to hostile treatment by making it obligatory upon the
court to sentence him to death ? In other words, is there a valid basis for
classifying persons who commit murders whilst they are under the sentence of
life imprisonment, separately from those who commit murders whilst they are not
under the sentence of life imprisonment, for the purpose of making the sentence
of death obligatoy in the case of the former and optional in the case of the
latter ? Is there any nexus between such discrimination and the object of the
impugned statute ? These questions stem principally from the position that
section 303 makes the sentence of death mandatory. That position raises certain
side 702 issues which are equally important. Is a law which provides for the
sentence of death for the offence of murder, without affording to the accused
an opportunity to show cause why that sentence should not be imposed, just and
fair ? Secondly, is such a law just and fair if, in the very nature of things,
it does not require the Court to state the reasons why the supreme penalty of
law is called for ? Is it not arbitrary to provide that whatever may be the
circumstances in which the offence of murder was committed, the sentence of
death shall be imposed upon the accused ? The first question which we would
like to examine is whether there is any valid basis for classifying persons who
commit murders whilst they are under the sentence of life imprisonment as
distinguished from those who commit murders whilst they are not under the
sentence of life imprisonment, for the purpose of making the sentence of death
mandatory in the case of the former class and optional in the case of the
latter class. We are unable to see any rational justification for making a
distinction, in the matter of punishment, between these two classes of
offenders. Murders can be motiveless in the sense that, in a given case, the
motive which operates on the mind of the offender is not known or is difficult
to discover. But, by and large, murders are committed for any one or more of a
variety of motives which operate on the mind of the offender, whether he is
under a sentence of life imprisonment or not. Such motives are too numerous and
varied to enumerate but hate, lust, sex, jealousy, gain, revenge and a host of
weaknesses to which human flesh is subject are common motives for the
generality of murders. Those reasons can operate as a motive force of the crime
whatever may be the situation in which the criminal is placed and whatever may
be the environment in which he finds himself. But, as we have stated earlier,
the framers of the Penal Code had only one case in mind, namely, the murder of
jail officials by life-convicts. Even if we confine ourselves to that class of
cases, the test or reasonableness of classification will break down inevitably.
From that point of view, it will be better to
consider under different heads cases in which murders are committed by
life-convicts within the jail precincts and murders which are committed by
life-convicts outside the jail, while they are on parole or bail.
We will first deal with cases of murders
committed by life-convicts within the precincts of the jail. The circumstance
that a 703 person is undergoing a sentence of life imprisonment does not
minimise the importance of mitigating factors which are relevant on the
question of sentence which should be imposed for the offence committed by him
while he is under the sentence of life imprisonment. Indeed, a crime committed
by a convict within the jail while he is under the sentence of life
imprisonment may, in certain circumstances, demand and deserve greater
consideration, understanding and sympathy than the original offence for which
he was sentenced to life imprisonment. This can be illustrated with the help of
many instances but one or two of those may suffice. A life- convict may be
driven to retaliate against his systematic harassment by a warder, who
habitually tortures, starves and humiliates him. If the act results in the death
of the warder, the crime may amount to murder because none of the exceptions
mentioned in section 300 may apply. The question is whether it is reasonable to
provide that a life-convict who has committed the offence of murder in these
circumstances must necessarily be sentenced to death and an opportunity denied
to him to explain why the death sentence should not be imposed upon him. And,
how is it relevant on the question of the prescription of a mandatory sentence
of death that the murder was committed by a life-convict? Then again, to take
another instance, there are hundreds of inmates in central jails. A
life-convict may be provoked gravely but not suddenly, or suddenly but not
gravely enough, by an insinuation made against his wife's chastity by another
inmate of the jail. If he commits the murder of the insinuator, the only
sentence which can be imposed upon him under section 303 is the sentence of
death. The question is, whether it is reasonable to deprive such a person,
because he was under a sentence of life imprisonment when he committed the
offence of murder, from an opportunity to satisfy the court that he acted under
the pressure of a grave insult to his wife and should not therefore be
sentenced to death. We are of the opinion that, even limiting oneself to
murders committed by life-convicts within the four walls of jail, it is
difficult to hold that the prescription of the mandatory sentence of death
answers the test of reasonableness.
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 704 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, he 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, how 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 hall-marks of justice. The mandatory
sentence of death prescribed by section 303, with no discretion left to the
court to 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.
We are also unable to appreciate how, in the
matter of sentencing, any rational distinction can be made between a person who
705 commits a murder after serving out the sentence of life imprisonment and a
person who commits a murder while he is still under that sentence. A person who
has been in jail, say for 14 years, and commits the offence of murder after
coming out of the jail upon serving out that sentence is not entitled to any
greater consideration than a person who is still serving the sentence of life
imprisonment for the mere reason that the former has served out his sentence
and the latter is still under the sentence imposed upon him. The classification
based upon such a distinction proceeds upon irrelevant considerations and bears
no nexus with the object of the statute, namely, the imposition of a mandatory
sentence of death. A person who stands unreformed after a long term of
incarceration is not, by any logic entitled to preferential treatment as
compared with a person who is still under the sentence of life imprisonment. We
do not suggest that the latter is entitled to preferential treatment over the
former. Both have to be treated alike in the matter of prescription of
punishment and whatever safeguards and benefits are available to the former
must be made available to the latter.
We have already adverted to the stresses and
strains which operate on convicts who are sentenced to long terms of
imprisonment like the sentence of life imprisonment. Many scholars have
conducted research into this matter. It will serve our purpose to draw
attention to the following passage from a book called "The Penalty of
Death" by Thorsten Selling (1) "Anyone who has studied prisons and
especially the maximum-security institutions, which are the most likely abodes
of murderers serving sentences of life imprisonment or long terms of years,
realizes that the society of captives within their walls is subject to
extraordinary strains and pressures, which most of those in the outside world
experience in attenuated forms, if at all. The prison is an unnatural
institution. In an area of limited size, surrounded by secure walls, it houses
from a few score to several thousand inmates and their custodians. In this
unisexual agglomeration of people, separated from family and friends, prisoners
are constantly thrown into association with one another and subject to a host
of regulations that limit their freedom of action and are 706 imposed partly by
the prison authorities and partly by the inmate code. It is not astonishing
that in this artificial environment altercations occur, bred by the clash of
personalities and the conflict of interests that lead to fights in free
society, especially when one considers that most of the maximum-security prison
inmates are fairly young and have been raised in the poorer quarters of our
cities, where resort to physical violence in the settlement of disputes is
common.
Indeed, what surprises the student of prison
violence is the relative rarity of assaultive events, everything
considered." (p. 105) this is some good reason why convicts who are under
the sentence of life imprisonment should not be discriminated against as
compared with others, including those who have served out their long terms of
imprisonment. There is another passage in the same book which shows with the
help of statistics that the frequency of murders committed by life-convicts
while they are on parole is not so high as to justify a harsher treatment being
accorded to them when they are found guilty of having committed a murder while
on parole, as compared with other persons who are guilty of murder. The author says:
"In the United States, convicts whose
death sentences have been commuted or who have been sentenced to life
imprisonment for murder may regain their freedom by being paroled after
spending a decade or two in prison. Some are deprived of this opportunity,
because they die a natural or violent death while in the institution. Some may
be serving time in states that have laws barring the release of first-degree
murderers or lifers, but even there the exercise of executive clemency may remove
the barrier in individual cases. There is no need to discuss here the various
aspects of the parole process when murderers are involved because we are
concerned only with how such parolees behave once they have been set free. Do
they, indeed, abuse their freedom and are they especially likely to prove a
menace to the lives of their fellow citizens ? It is fear of that menace that
makes some people favor capital punishment as a sure means of preventing a
murderer from killing again after his return to freedom in the community. As we
shall see, paroled murderers do sometimes repeat their crime, but a look at
some facts 707 will show that among parolees who commit homicides, they rank
very low." (P. 113) According to the statistics tabulated at page 115 of
the book, out of 6835 life-convicts who were released on parole, 310 were
returned to prison for new crimes committed by them while on parole. Out of
these 310 twenty-one parolees were returned to the prison on the charge of
wilful homicide, that is, murder. There is no comparable statistical data in
our country in regard to the behaviour of life-convicts who are released on
parole or bail but there is no reason to assume that the incidence of murders
committed by such persons is unduly high. Indeed, if there is no scientific
investigation on this point in our country, there is no basis for treating such
persons differently from others who commit murders.
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.......(1)". As observed by Palekar J., who spoke for a
Constitution Bench in Jagmohan Singh v. State of U.P. (2) :
"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 final analysis, the safest possible
safeguard for the accused." (Page 559) The self-confidence which is
manifested in the legislative prescription of a computerised sentence of death
is not supported by scientific data. There appears to be no reason why in the
case of a 708 person whose case falls under section 303, factors like the age
and sex of the offender, the provocation received by the offender and the
motive of the crime should be excluded from consideration on the question of
sentence. The task performed by the legislature while enacting section 303 is
beyond even the present human ability which has greater scientific and
sophisticated resources available for compiling data, than those which were
available in 1860 when section 303 was enacted as part of the Indian Penal
Code.
It is because the death sentence has been
made mandatory by section 303 in regard to a particular class of persons that,
as a necessary consequence, they are deprived of the opportunity under section
235(2) of the Criminal Procedure Code to show cause why they should not be
sentenced to death and the Court is relieved from its obligation under section
354(3) of that Code to state the special reasons for imposing the sentence of
death. The deprivation of these rights and safeguards which is bound to result
in injustice is harsh, arbitrary and unjust.
We have stated at the beginning of this
judgment that there are as many as 51 sections of the Penal Code which provide
for the sentence of life imprisonment. Those sections are : Sections 121,
121-A, 122, 124-A, 125, 128, 130, 131, 132, 194, 222, 225, 232, 238, 255, 302,
304 part I, 305, 307, 311, 313, 314, 326, 328, 363-A, 364, 371, 376, 388, 389,
394, 395, 396, 400, 409, 412, 413, 436, 438, 449, 459, 460, 467, 472, 474, 475,
477, 489-A, 489-B, 489-D and section 511 (attempt to commit offences punishable
with imprisonment for life). A person who is sentenced to life imprisonment for
any of these offences incurs the mandatory penalty of death under section 303
if he commits a murder while he is under the sentence of life imprisonment. It
is impossible to see the rationale of this aspect of section 303. There might
have been the semblance of some logic to explain, if not to sustain, such a
provision if murder was the only offence for which life imprisonment was
prescribed as a punishment. It could then be argued that the intention of the
legislature was to provide for enhanced sentence for the second offence of
murder. But, under the section as it stands, a person who is sentenced to life
imprisonment for breach of trust (though, such a sentence is rarely imposed),
or for sedition under section 124-A or for counterfeiting a coin under section
232 or for forgery under section 467 will have to be sentenced to death if he
commits a murder while he is under the sentence of life imprisonment. There is
nothing in common between such offences previously committed and the subsequent
709 offence of murder. Indeed, it defies all logic to understand why such a
provision was made and what social purpose can be served by sentencing a forgoer
to a compulsory punishment of death for the mere reason that he was undergoing
the sentence of life imprisonment for forgery when he committed the offence of
murder. The motivation of the two offences is different, the circumstances in
which they are committed would be different and indeed the two offences are
basically of a different genre. To prescribe a mandatory sentence of death for
the second of such offences for the reason that the offender was under the
sentence of life imprisonment for the first of such offences is arbitrary
beyond the bounds of all reason. Assuming that section 235(2) of the Criminal
Procedure Code were applicable to the case and the Court was under an
obligation to hear the accused on the question of sentence, it would have to
put some such question to the accused :
"You were sentenced to life imprisonment
for the offence of forgery. You have committed a murder while you were under
that sentence of life imprisonment. Why should you not be sentenced to death?"
The question carries its own refutation. It highlights how arbitrary and
irrational it is to provide for a mandatory sentence of death in such
circumstances.
In its Thirty-Fifth Report on 'Capital
Punishment' published in 1967, the Law Commission of India considered in
paragraphs 587 to 591 the question of prescribing a lesser sentence for the
offences under sections 302 and 303 of the Penal Code. It observed in paragraph
587 that :
"For the offence under section 303,
Indian Penal Code, the sentence of death is mandatory. The reason for this is
that in the case of an offence committed by a person who is already under
sentence of imprisonment for life, the lesser sentence of imprisonment for life
would be a formality. It has, however, been suggested that even for this
offence the sentence of death should not be mandatory. We have considered the
arguments that can be advanced in support of the suggested change. It is true
that, ordinarily speaking, leaving the court no discretion in the matter of
sentence is an approach which is not in conformity with modern trends."
710 After dealing with the question whether the sentence of death ought not to
be mandatory and after considering whether section 303 should be amended so as
to limit its application to cases in which a person sentenced to life imprisonment
for the offence of murder commits again a murder while he is under the sentence
of life imprisonment, the Law Commission concluded in paragraph 591 of its
Report that "It is not necessary to make any change". It felt that :
"Acute cases of hardship, where the
extenuating circumstances are overwhelming in their intensity, can be dealt
with under section 401, Code of Criminal Procedure, 1898. and that seems to be
sufficient".
In its Forty-second Report on the Indian
Penal Code, published in June 1971, the Law Commission considered again the
question of amending section 303. It found it anomalous that a person whose
sentence of imprisonment for life was remitted unconditionally by the
Government could be held not to be under the sentence of life imprisonment, but
if a person was released conditionally, he could still be held to be under that
sentence. It therefore suggested that section 303 should be amended so as to
restrict its application to life convicts who are actually in prison. The
Commission did not, however, recommend any change since, section 303 was
"very rarely applied". It felt that if there was an exceptionally
hard case, it could be easily dealt with by the President or the Governor under
the prerogative of mercy.
On December 11, 1972 a Bill was introduced in
the Rajya Sabha to amend the Penal Code, one of the amendments suggested being
that section 303 of the Code should be deleted. On a motion made by the then
Minister of State in the Ministry of Home Affairs, the Bill was referred to the
Joint Committee of the Rajya Sabha and the Lok Sabha: The Committee held 97
sittings and made various recommendations, one of which was that the punishment
for murder which was prescribed separately by sections 302 and 303 of the Penal
Code should be brought under one section of the Code. The Committee further
recommended that it should not be obligatory to impose the sentence of death on
a person who commits a murder while under the sentence of life imprisonment and
the question whether, in such a case, the sentence of death or the sentence of
life imprisonment should be awarded should be left to the discretion of the
Court. The Committee accordingly suggested the addition of a new Clause 125 in
the Bill for omitting section 303 of the Penal 711 Code. The Report of the
Joint Committee was presented to the Rajya sabha on January 29, 1976 whereupon
The Indian Penal Code (Amendment) Bill, XLII-B of 1972, was tabled before the
Rajya Sabha. But, what was proposed by Parliament was disposed of by the
ballot-box. A mid-term parliamentary poll was held while the Bill was pending
and there was a change of Government. The Bill lapsed and that was that. It is
to be deeply regretted that the attention of an over-worked Parliament has not
yet been drawn to urgent reforms suggested in the Penal Code Amendment Bill
XLII-B of 1972.
In all probability, the amendment suggested
by Clause 125 (New) for the deletion of section 303 of the Penal Code would
have passed muster without any opposition. The only snag in the passing of the
Bill has been that it was not revived and put to vote. Section 303 was destined
to die at the hands of the court. Our only regret is that during the last six
years since 1977, some obscure forger sentenced to life imprisonment, who may
have committed murder while under the sentence of life imprisonment, may have
been sentenced to the mandatory sentence of death, unwept and unasked why he
should not be hanged by the neck until he is dead.
On a consideration of the various
circumstances which we have mentioned in this judgment, we are of the opinion
that section 303 of 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' (1) "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. Sate of M.P., (2) 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
712 operation". We strike down section 303 of 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 murder.
The various cases in this batch of Appeals
and writ petitions may now be placed before a Division Bench for disposal on
merits in the light of these judgments.
CHINNAPPA REDDY, J. Section 303, Indian Penal
Code, is an anachronism. It is out of tune with the march of the times. It is
out of tune with the rising tide of human consciousness. It is out of tune with
the philosophy of an enlightened Constitution like ours. It particularly
offends Art. 21 and the new jurisprudence which has sprung around it ever since
the Banks Nationalisation case freed it from the confines of Gopalan. After the
Banks Nationalisation case, no article of the Constitution guaranteeing a
Fundamental Right was to lead an isolated existence. Added nourishment was to
be sought and added vigour was to be achieved by companionship. Beg, CJ,. said
it beautifully in Maneka Gandhi:
"Articles dealing with different
fundamental rights contained in Part III of the Constitution do not represent
entirely separate streams of rights which do not mingle at many points. They
are all parts of an integrated scheme in the Constitution. Their waters must
mix to constitute that grand flow of unimpeded and impartial Justice (social,
economic and political), Freedom (not only of thought, expression, belief,
faith and worship, but also of association, movement, vocation or occupation as
well as of acquisition and possession of reasonable property), of Equality (of
status and of opportunity, which imply absence of unreasonable or unfair
discrimination between individuals, groups and classes), and of Fraternity
(assuring dignity of the individual, and the unity of the nation), which our
Constitution visualises.
Isolation of various aspects of human
freedom, for purposes of their protection, is neither realistic nor beneficial
but would defeat the very objects of such protection." Maneka Gandhi
carried Art. 21 to nobler rights and made it the focal point round which must
now revolve to advantage all 713 claims to rights touching life and liberty. If
Art.. 21 declared, "No person shall be deprived of his life or liberty
except according to procedure established by law," the Court declared,
without frill or flourish, in simple and absolute terms:
"The procedure prescribed by law has to
be fair, just and reasonable, not fanciful, oppressive or arbitrary",
(Chandrachud, J, as he then was).
The question whether Sec. 302 which provides
for a sentence of death as an alternative penalty was constitutionally valid
was raised in Bachan Singh. Bachan Singh sustained the validity of Sec. 302
because the sentence of imprisonment for life and not death was the normal
punishment for murder, and the sentence of death was an alternative penalty to
be resorted to in the most exceptional of cases and the discretion to impose or
not to impose the sentence of death was given to the Judge. The ruthless rigour
of the sentence of death, even as an alternative penalty, was thought to be
tempered by the wide discretion given to the Judge. Judicial discretion was
what prevented the outlawing of the sentence of death even as an alternative
penalty for murder. Even so the Court took care to declare that it could only
be imposed in the 'rarest of rare' cases.
Judged in the light shed by Maneka Gandhi and
Bachan Singh, it is impossible to uphold Sec. 303 as valid. Sec. 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 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.
Sec. 303 is such a law and it must go the way
of all bad laws. I agree with my Lord Chief Justice that Sec. 303, Indian Penal
Code, must be struck down as unconstitutional.
H.L.C.
Back