MITHU, ETC., ETC.,

STATE OF PUNJAB ETC. ETC.

April 7, 1983.

[V.Y. CHANDRACHUD, C.J., S. MURTAZA FAZAL ALI, V.D. TuLZAPURKAR, 0. CH!NNAPPA REDDY AND A. VARADARAJAN, JJ.)

Indian Penal Code, 1860-s. 303-Constitution of India-Arts. 14 and 21- Mandatory sentence of death for murder commilleed by Jife-conicts is violative of rights guaranteed under Arts, 14 and 21-s. 303, l.P.C. is unconstitutional and void

Section 303, I.P.C. provides that whoever, being under sentence of imprison1nent for life, commits murder, sha II be punished with death

CounseJ for appeallants/petitioners contendd that s. 303, J.P.C. is unconstitutional not only for the reaon that it is unreasonable and arbitrary but also because it authorises deprivation of life by an unju1t and unfair procedure. Counsel for re pendents on the other hand contended that since the validity of death sentence has bee-n upheld in Bachan Singh and since s. 303 does no more than prescribe death "Sentence for the offence of n1urder, the ratio of Bacftan 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 te 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 punishn1ent 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 r3tional distinction can be n1ade in the matter of sentencing between a person who commits

murder after serving cut the sentence of life imprisonment and a persori who co; nmits 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 perferential 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 BDl

...

MlfHU V. PIJNJAli 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, jealouy. gain, revenge and a host of weaknesses to which human flesh is subject, are comrr:on n1othes for the generality of murders. Those reasons can operate as a motive fc rce of the crime whatever may be the situation in which tl-.e criminal is placed and whatever may be the environment in which 1he 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 lail, it is difficult to hold that the prescription of tl-.e 1nandatory sentence of death answers the test of reasonableness. Thr circumstance that a person is undergoing a entence of life in1prisonment does not minimise the importance of 1nitigating factors which are relevant on the question of sentt'nce which s.hou1d be in1posd for the offence committed by him v.hile he is under the sentence of life imprisonment.

Indeed, a crin1e com1nitted by a convict witJ1in 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 FG; 702H; 703 A-Bl

(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 :nside or outside the prison by a person who is under the sentence of life 1mprisonn1ent. Research &tudies conductedabroad have indicated that tl'.e frequency of 1nurders co1n1nitted by life-convicts while they are on parole is not so high as to justify a harsher treatment being accorded to them \vhen they are found guilty of having committed a murder while on parole, as compared with other persons who are g0; ilty of murder. There is no co1nparable statistical data in our country in regard to the behaviour of lifeconvicts who are released on parole or bail but there isno reason to assume that the incidence of nlurders con1mitted by such persons is unduly high .. Indeed, if there is no scientific investigation on this point i_n our countrY, thefe is no basis for treating such persons differently from others who con1mit murders.

[705 D-H; 706 A-H; 707 A-C]

(v) There are as many as 51 sections in the Penal Code \Vhich provide

for the sentence of life imprisonment. A person who is sentenced to life imprisonmr:nt for any of these offences incurs the mandatory penalty of death under s. 303, if he con1mits a murder while he is under 'the sentence of life G imprisonment. It i's 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 legislatufe 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 IJ impr-isonn1ent 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 \vill have to be senter.ced to death if he commits a murder while he is under the sentence of life

SUPREME {)OUR T REPORTS (19S3j 2 s.C.R.

imprisonment. There is nothing in common between such offences previously comrvitted and the subsequent offence of murder. Indeed, ii defies all logic to understand why such a provision was made and 'vhat social purpose can be served by sentencing a forgerer to a compulsory punishment of death . for the mere reason that he was unde1going the sentence of life imprisonment for

forery When he con1mitted 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~ 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-q '

(vi) A standardised mand'.itory sentence, and that too in the form of a $entence 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 fot. determining the question of sentence in each individual case. The impoSsibility of laying down standards is at the very core of the criminal Jaw as a.dministered in India which invests the judges with a very wide discretion in the n1atter of fixing the degree of punishment. The exercise of judicial .discretion on weU-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 th-! 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 n1atter of life and death, without regard to the circumstances in which the offence was con1mitte 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 case:>, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a pre-ordained entence of dath

[704 D-F]

(viii) It is because the deatn sentence has beent made mandatory by s. 303 l.P.C. in regard to a particular class of p"ersons that, as a necessary consequence, they a1e 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 ad safeguards which is bound to result in injmtice 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 kgislature to prescribe the procedure and for the courts to follow it or that it is for the legislature to

.'!".

MiTHU W, PVN1AB 693

.provide the,, punishment and for the. courts to il)J.pose it. Tl; le courts are not , bound an~-t" are indeed not_ free, to ai)ply a fanciful procedure by a blind adherence to the letter of the law or to impoSe a savage sentence_. The -Jast word n the question of justice and fairne:s. Coes not rest with the leghlature.

- Justas reasonableness of restriction~. under els. (2) to (6) of Art. 19 is for the courts to detennine, so is it for the courts to decide whether theprOcedure prescribed by a law for depriving a person Or his life or liberty is fair, just and

reaionable .. [698 G-H; 699 C-D]


De/hf Administration, [1979] 1 S.C\ R. 392 ; and Bachan Singh v. State of Punjab,

[1980] 2 S.C.C. 684, reforred to.

 (x) In Bachan Singh the majOrity concluded that s.302, 1.P .C. is valid for three maia 1easons: Fintly, t.hat t.h, e death sentence provi4rd for bys. 302 is an alternative to the sentence of life imprisonment ; sei::ondly, that special reasons have to be stated unqer s .. 354 (3), Cr. P.C. if the. normal. rulo, is deparkd from and. the death senterce has to belmposed ; and,· thirdly; be..::ause the accused is

1 entitled under s. 235 (2), Cr. P.C. to be _hard on the qi.Iestion of sentence. The ratio of Bachan Singh, therefore, iS that, death sentence is constitutional if it is prescribed as ao ~1teq1ative .sntence for _the 9ffence of murder and if the nortrJal sentence prescribed bylaw for murdei' is imprisonment for life. Since there is a fundamental 9istinctioa _between t(.e provisiops of. s. 302ands. 305, I.P.C., the ratio of Bachan .Singh will'not go\ern the question as regards the validity of:>.. 303: whereas s. 302, 1.P .. C.provides for the sentence of death as an alternative £entence, the C'nly sentence which s. 303 l.P.C. prescribes is the sentence of. death! and dnce s. 303 l.P.C. does not rrovide for an alternative sentence, ss.354 (3) and 235(2), Cr. P.C. haveno application 'to cases arising under that •ection.[700 D-H; 101 A-DJ ·


per Chinnappa RcdJy, J. (concurring) :

A.

Section 303, 1.P .C. is out of tun.e 'with the Philosophy of otir Con&titution.

F It particularly offends Art. 21 and the new jurisprudence, whii:h has sprung around since the Bank Nationa/.isatiun case. Maneka Gandhi carried Art. 21 to nobler rights ... and made it the focal point round which must now revolve to advaotage all claims to ights t_qw; hing .Ii(e and liberty. The procedure prescribed by law has to be fair, ji.tst and reasonable, not fanciful, oppressive or. arbitrary. _Bachan Singh sustain.ed the yalidity oJ s.302 beCi:\l\_Se the , Sentence of imprisonment for. life and not death was the normal PunishmeTI.t_ for murder, . 'G and the sentence of death was an alternatiVe penalty to be tesorted tO in ihe most exceptiOflal of cases and the diocretion. to impOse or riot tO "irilpo.se the sentence of death was given to th~ Judge. Judicial discretion was what prevented the outlawing of the sentence of death even as an alternative i:enalty

or inu-:der. Judged in h.e light of -Maneka Gandhi and Bachan Singh, it is

11poss1ble to uphold s. 303 as valid. S_ection 303 e;..c1udes judicial discretion. ff 'So final, so iJrevoCable and so irres-titutable iS the Eetlteric'C or death that no

Jaw Which provides fQr it \l'ithout i1lvoJverr.nt Of the ~\licial' mini!' CaA :be saiq io be fair, just and reasonable. [712 {:-H; 7.13 A•Gj

SUPREME COURT REPORTS [1983] 2 s.c.R.


CRIMINAL APPELLATE

JURISDICTION/ORIGINAL JURISDICTION : r- ~J Criminal Appeal No. 745 of 1980.

B 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. IS 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. 2744of1980

E 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. 4of1980.

AND

Writ Petition No. 1365 of 1982

(Under Article 32 of the Constitution ofindia)

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 Hish Court in,

Criminal Appeal No. 711-0B of 1981.

>- .

-.......

MITHU P. PUN1A8 (Chandrachud, CJ.) 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 iri Article 21 of the Constitution which provides that "No person shall be deprived of his life or personal liberty except according to procedure establi-. shed by law."

Section 300 of the Penal Code defines 'Murder', while section 302 reads thus :

"302. Punishment for murderwhoever 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 thos_e 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 Crimmal 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."

.c

While upholding the validity of the death sentence as a punishment for murder, a Constitution Bench of this Court ruled in G Bachan Singh(') 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 H

(lJ (t9so1 2 sec 684.

696 sul>inra COURT REPORts

(1983) 2 S.C.R.

according to their subject-matter, defining them with preciion a]ld 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 de!ll with; was as to the punishment which .should be prescribed 'for the offence of murd.er 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-Wltoever,

being under sentence of imprisonment for life, commits murder, shall be punishe<i with death.~'

The reason, or at least one of the reasons, why the, discretion of the Courr to impose a lesser sentence was taken away and the 'sentence of death was made mandatory jn cases which are covered D : 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 punishmenr w\lich he deserved was death. The severity of this legislative judgment accorded with the deterrent and

- retributive theories of puuishment which then held sway. The E reformative theory .of puuishment 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 trans- F portation 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 pirected tliat the subsequent sentence of transportation was to ruri concurrently with the previous sentence of transportation. It was in 1955 that section 397 of the Criminal Procedure Code of 1898 G was replaced by a new sectiim 397 by Amendment Act 26 of 1955.

Under the new sub-section (2\ of section 397 which came into force on Jnuary 1, 1956, if a person alrady. undergoing a sentence of imprisonment for life was sentenced on a subsequent conviction to .imprisonment for. life, the subsequent sel!tence had to run concurrent- H . l ly with the previous sentence .. Section 427(2) of rhe 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 \he Pen, al Code was originally enacted, the leis!ature did no\

MITJIU•v. PUNJ.(B (Chmtdrachud, CJ.)

consider that even successive sentences of tl'!!nsportation for life were an adequate punishment for the offence of murder committed by a 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 tat section and of 1l 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 officia1 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, C 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 oflndia 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 protectio.n ID to the prison saff". We have no doubt that if a strictly penological view was taken of the situation dealt with by section 30~, 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 t0 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 sect.ion. The sum and substance of the argument is that the provision contained in section 303 is who"" unreasonable and arbitrary and thereby, it violates Article 21 of 1J: 'F Constitution which affords the guarantee that no person shall Qi; 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 uncoi:stitutionaLfHhavin~ e_xamthined. this argument with care and . 'G concern, we are o t e opm10n at 1t must be accepted and section 303 of the Penal Code struck down.

 In Maneka Gandhi v. Union of India,(') it was held by a seven- Judge Bench that a statute. which merely prescribes some kind df ll

procedure for depriving a person of his life or personal liberty cannot

(!) [1978)2 SCR 62\ ..

<i98 SUPRllME COURT REPORTS [1983] 2 s.c.R.

ever meet the requirements of Article 21 : The procedure prescribed . A 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. Deihi Administratkm,(1) while . B dealing with the question as to whi:fither a person awaiting death sentence can be kept in solitary con nement, 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(') and Maneka Gandhi

C "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 procedur al unfairness, falls foul of Article 21."

• J> 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 oppres sive. Otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied. If it i• arbitrary, it would be violative of Article 14."

In Bachan Singh which upheld the constitutional validity of the .F 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 , G 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 .:JI , to follow it, that it is for the legislature to provide the punishment

(I) [1979] I SCR 392.

\2) [1970] 3 SCR 530,

MITHU v. PUNJAB ( Chandrachud, CJ.) 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 A the courts are not bound, and are indeed not free, to apply a fanciful procedure by a blind adherence to the letter of the Jaw or to impose a savage sentence; A Jaw 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 Jaw were to provide that the offence of theti B will be punishable with the penalty of the cutting of hands, the Jaw will be bad as violating Article 21. A savage sentence is anathema to the civilized jtffisprudence 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 C 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 Jaw for depriving a person of his life or liberty is fair, just and reason~ able. The question which then arises before us is whether the D sentence of death, prescribed by stion 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 uffer 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 F 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 agajn. 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 band, the decisions rendered by the court have to be under• stood 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

111ajoity did not lay down any abstract proposition in Bachan Sinh

-- -----!~·.,,.,,,.._

'SlJP)Uli, fl! 00Uicr REPORTS [1983] 2 s.c.R.

that "Death sentence is constitutional", that is to say, that "It is permissible under the Constitution to provide for the sentence qf 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 B 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, un<lerscored the words "alternative" and "may" in paragraph 19 of

tl1e ju<lgment, 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 Cod! 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 ; an~, 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 Col!rt has au 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 !; tear the accused on. the question of sentence. If the .Jaw 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 G 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 Jaw for 111urder is iprisonment for life, ·

ff

MJTHU v.'PUNJAB (Chandrachud, CJ.) 1M

. It will be clear from this discussion that since there is a fundamental distinction between the provisions of section 302 and

sction 303 of the Penal Code, the ratio of Bachan Singh will not. g(!)vern 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 Proce- , dure 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 undqr 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 afforesaid 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 infelligible 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 . G commit murders whilst ihey 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 impngned statute ? These H questions stem principally from the position that seciion 303 makes the sentence of death mandatory. That position raises certain side

SUPREME COVRT REPORTS

(1983) 2 S.C.R.

A 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, >t does not require the Court to state the reasons why the supreme penalty of law is called for? Is it not B 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 wou'd like to examine is whether there is any valid basis for classifying persons who commit murders c 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 D justification for making a distinction, in the matter of pJinishment,

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

E 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 F whatever may be the situation in which the criminal is plai:ed and whatever may be the environment in which he finds himself. But, as we have stated earlier, the framers of the PenF 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 de~] with cases of murders committed by lifeconvicts within the precincts of the jail. The circumstance that a

MltHU ~. PUNJAB (Chandrachud, CJ.)

P.erson is undergoing a sentence of .Jife imprisonment does not mini• mise the importance of mitigating factors which are relevant on the A question of sentence which should be imposed for the offence: committed by him while he is under the sentence of life imprison:- ment. 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, under B ·

standing and sympathy than the original offence for which he was sentenced to life imprisonment. This can be illustrated with the help of may 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 C' murder because none of the exceptions mentioned in sect.ion 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 D not be imposed upon him. And, how is it relevant on the question of the prescription ofa mandatory sentence cif death that the murder was committed by a life-convict ? Then again, to take another instance, there are hundreds of inmates in cen1; ral 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 E 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 F 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 If 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 011

S\JFRBMll COllRT R.BPORTS iI983i 2 s.c.&.

the sp0t, he may stand.a fair chance of escaping from the charge ofmurder,.since the provocation is both grave and sudde'l But if, on *ling his wife in the act of adultery, he leaves the house, goes to a shiop, 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 sh<lllld not be sentenced to death. And, in these circumstances, how does the fact that the accused was under a senlence of life imprison ment when he committed the murder, justify the law that he must be senllenced 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 com•nittcd and, , therefore, wiihout regard to the gravity of the offence, cannot but be regarded as harsh, unjust and unfair. It has to be remembered that the measure 0f punishment for an offence is not afforded by the label which that offence bears, as for example 'Theft', 'Breach of Trust' or "Murder'.

Tbe gravity of the offence furnishes the guideline for punirhment aad one cannot determine how grave the offence is without, having vegard to the.circumstances in.which it was committed, its motivation and its repercussions. The legislature cannot make relevant circums lances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in apprqpriate cases, compel them to shut their eyes to mitigating circnmstances and inflict upon them the dubious and unconscionable duty of imposing a preordai1ted sentence of death. }lquity 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 Jed 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, arc pledged to a different set of values. For us, Jaw ceases to have respeet and relevance when it compels the dispensers -0f 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 sentens ing, any rational distinction can be made between a person who

t 4-

MITHU v. PUNJA'B (Chanditachud, CJ.) 705

commits a murder after serving out the sentence of life imprisonment and a person who commits a murder while he is stlll under

tha~ 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 upoii 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 Jong 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 alrady adverted to the stresses and strains which operate on convicts who are sentenced to long terms of imprisomnent like the sentence of life imprisonment. Many scholars have conduc-

CJ.

ted research into this matter. It will serve our purpose to draw attention to the following passage from a book called "The Penalty E 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 prlson

is an unnatural institution. In an area of limited size,

; urrunded 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 thr.own into association with one another and subject to a host of regulations that limit their freedom of action and are

(l) Sage Libfary of Social Research, London, Ed. 1980.

SUPREME COURT REPOR'I'S

(1983] 2 S.C.R.

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)

C This is some good reason why convicts who are under the sentence of life imp(isonment should not . be discriminated against as compared with others, including'those who have served out their long terms of imprisopment 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 D 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 muder may regain their freedom by being paroled after spreading 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 bar ing 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 1 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

_,. -;

i.liTHl! v. PVNJAB (Chandrachud, CJ.) 707

will show that among parolees who commit homicides, they rank very low." (P. 113) A

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 py them while on parole. Out of these 310. twenty-one parolees were returned to the B 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 C 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 circums- .' tances which constitute a safe guideline for determining the question

of sentence in each individual case. "The infinite variety of cases and E facets to each would make general standards either meaningless 'boiler plate' or a statement.ofthe obvious ....... .'')". As observed by Palekar J., who spoke for a Constitution Bench in Jagmohan Singh v. State of

U.P. (') : .

"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 princi- . pies is, in the final analysis, the safest possible safeguard for the accused." (Page 559)

. Th~ self-confidence which is manifested in the legislative Pr_escnpt10n of a computerised sentence of death is not supported by sc1ent1fic data. There appears to be no reason why in the case of a H

-.,, (!). D. nnis Councle Mcgautha v. State of California, 28 L. Ed. 2nd. 711

(2) 1197312 SCR 541

--~·

708 SIJPR.EME rotll!.T RB)'ORTS

.. (1983} 2 S.C.R.

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 31)3 is beyond even the present human abilily which has greater scientific and sophisticated resources available for compiling data, than those which were availiable 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)) of that Code to state the special reasons for imposing th•! 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 b!ginning of this judgment that there are as many as 5 l sections of the Penal Code which provide for the sentence of life imprisoment.

Those sections are : Sections 121, 121-A, 122, 124-A, 125, 128, t30, 131, 132, 191, 222, 225, 232, 2.18, 255, 302, 304 part I, 305, 307, 31 l, 313, 314, 326, 328,

363-A, 364, 371, 376, 388, 389, 394, 395, 396, 400, 409, 412, 413,

436, 438, 449, 459, 46'1, 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 incnrs the mandatory penalty of death under section 3"'3 if he commits a murder while he is nnder 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 fo 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 muder. 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

MITHU ,, • PUNJMI' tChtmdrachud, CJ.) 709

offence of murder. Indeed, it defies all logic to undmtand why such a provision was made and what social purpose can be served by A 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 basi- B cally 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 C

the question of sentence, it would have to put some such question to the accused :

"You were sentenced to life imprisonme11t for the offence of forgery. You have committed a murder while D 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. E

In its Thirty-Fifth Report on 'Capital Punishment' published in 1967, the Law Comm; ssion 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 hfe, the lesser sentence of imprisonment for life would be a formality. It has, however, been suggestec\ that even for this offence the sentence. of death should not be mandatory. We have considered the arguments that can be advanced in suport of the suggested change. It is irue that, ordinarily spea, king, leaving the court no discretion in the matter of sentence is an approach which is not in conformity with \llo<l.em trends."

'1111"...,, ---

SUPREME COURT REPORTS

(1983] 2 S.C.R.

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 nc0:essary 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 anamolous 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 ll, 1972 a Bill was introduced in the Rajya sabha to amend the Penal Code, one of the amendments suggested F 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 G , for murder which was prescribed separately by sections 302 and 303

of the Penal Code shm!ld 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 ques- H tion whether, in such a case, the sentence of death or the sentence oflife imprisonment should be awarded should be left to the discretion. of the Court. The Committee accordingly suggested the addition of

11 new Clal!se 125 in the Bill for omitting sectio11 30~ of the Penal

~-

MITHU v. PUNJAll' ( Chandtachud, CJ.) 711

Code. The Report of the Joint Committee was presented to the Rajya sabha on January 29, 1976 whereupon The Indian Penal Code A (Amendment) Bill, XLil-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 B 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 Bil! has been that it was not revived and put to vote. C Seciton 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 D he should not be hanged by the neck until he is dead.

On a consideratio'l 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 E 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 F data .. As observed by the Royal Commission inits Report on 'Capital Punishment' (1) "There is a popular belief that prisoners serveing 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 b.ave yielded to temptation under the pressure of a G combination of circumstances unlikely to recur". In Dilip Kumar Sharma v.Sate of M.P., (') this Court was not concerned with the question of the vi res 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 H

(1) 1949-1953, Paragraph 517,

(2) [1976) 2 S<;:R 289,

712 •.

SUPRBMll COURT-11.l!PoRTS

(1983] 2. S, C, R

operation": We strike down section 303 of Penal Code as 'nncostitu- A tional 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 thfa batch of Appeals and writ petitions B may now bo placed before a Division Bench for disposal on merits in

the light of these judgments.

CHJNNAPm REpDY, 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 ilUt of tune with the philosophy of an enlightened Constitution like ours.

It partll:ularly offends Art. 21 and the new jurisprudence whic)l. 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 au 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 protectio)1."

Maneka Gandhi carried Art. 21 to nobler rights aud made it the focal point round which must now revolve to advantage al\

• •

MITHU v. PUN/AB ( Chlnnappa Reddy, J.) '7-1'3

claims to rights touching life and liberty. If Art .. 21 declared, "No person shall be deprived of his life or liberty except accordina 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 constitution; ally valid ll!llS raised in Bachan Singh. Bachan Singh sustained the va4idity of iec. C 302 because the sentence of imprisonment for life and not death was the no1mal punishment for murder, and the sentence of death was an alternative penalty to be resorted to in the most exceptional 'or cases and the discretion to impose or not to im~ the sentence of death was given to the Judge. The ruthless rigour of the sentence of 'JI death, even as an alternative penalty, was thought to be tempered · by the wide discretion given to the Judge. Judicial d.iscretion was what prevented the outlawing of the sentence of death even as.an alternative penalty for murder. Even so the Court took care to decl11re

that it could only be imposed in the 'rarest of rare' .cases.

Judged in the light shed by Maneka Gandhi and Bachan Singh, Jl: it is impossible to uphold Sec. 303 as valid. Sec. 303 excludes judicial discretion. The scales of justice are removed from the )lJnds of the Judge so soon as he pronounces the accused guilty \lf tJv: \lffence.

So final, so irrevocable and so irrestitutable is the sentence of death that no law which provides for it without involvement of the judicial F 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 wit)l my Lord Chief Justice that Sec. 303, Indian Penal Code, must be &truck down as unconstitutional.

H.L.C.