NORIGINAL 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 282
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 3543 of the Code of Criminal Procedure 1973 provides 3543 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 Singh1 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 4272 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 1617 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 vs Union of India1 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 vs Delhi Administration1 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 case2 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 3543 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 2352 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 2352 nor section 3543 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 3543 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 3543 has no application to cases arising under that section
Thirdly section 2352 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 Sellin 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 baring 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 vs State of UP 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 2352 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 3543 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 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
Assuming that section 2352 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 vs Sate of MP 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 article 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 article 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 article 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
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
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


Summary:
Section 303 IPC provides that whoever being under sentence of imprisonment for life commits murder shall be punished with death Counsel for appeallantspetitioners contended that section 303 IPC 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 section 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 section 303 IPC must be treated as having been concluded by that decision
Upholding the contention of the appellantspetitioners  HELD Per Chandrachud CJ Chinnappa Reddy J Concurring Section 303 IPC is unconstitutional and void
It violates the guarantee of equality contained in article 14 as also the right conferred by article 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 murders705 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 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 or for sedition under section 124 A or for counterfeiting a coin under section 232 or for forgery under s467 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 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
707 D H 708 A Jagmohan Singh vs State of UP   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 section 303 IPC in regard to a particular class of persons that as a necessary consequence they are deprived of the opportunity under section 235 2 Cr
PC to show cause why they should not be sentenced to death and the Court is relieved from its obligation under section 354 3 Cr
PC 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 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
698 G H 699 C D Maneka Gandhi vs Union of India 1978 2 SCR 621 Sunil Batra vs Delhi Administration   and Bachan Singh vs State of Punjab  referred to
x In Bachan Singh the majority concluded that s302 IPC 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 under section 354 3 Cr
PC 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 Cr
PC 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 section 302 and section 303 IPC the ratio of Bachan Singh will not govern the question as regards the validity of s303 whereas section 302 IPC provides for the sentence of death as an alternative sentence the only sentence which section 303 IPC prescribes is the sentence of death and since section 303 IPC does not provide for an alternative sentence ss354 3 and 2352 Cr
PC have no application to cases arising under that section700 D H 701 A D Bachan Singh vs State of Punjab explained
per Chinnappa Reddy J concurring Section 303 IPC is out of tune with the philosophy of our Constitution
It particularly offends article 21 and the new jurisprudence which has sprung around since the Bank Nationalisation case
Maneka Gandhi carried article 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 s302 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 section 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   Maneka Gandhi vs Union of India 1978 2 SCR 621 and Bachan Singh vs State of Punjab 1980 2 SCC684 referred to