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TMI Blog1983 (4) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. The difference between those sections on one hand and Section 302 on the other is that whereas, under those sections life imprisonment is the maximum penalty that can be imposed, under Section 302 life imprisonment is the minimum penalty which has to be imposed. The only option open to a court which convicts a person of murder is to impose either the sentence of life imprisonment or the sentence of death. The normal sentence for murder is life imprisonment. Section 354(3) of the CrPC, 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. 4. While upholding the validity of the death sentence as a punishment for murder, a Constitution Bench of this Court ruled in Bachan Singh 1980CriLJ636 that death sentence can be imposed in a very exceptional class of cases- the rarest of rare cases . 5. The Indian Penal Code was passed in 1860. The framers of that Code achieved a measure of success in classifying offences according to their subject-matter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03 of the Penal Code was originally enacted, the legislature did not consider that even successive sentences of transportation for life were an adequate punishment for the offence of murder committed by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. 7. 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 42 R (1971), the Law Commission of India has observed in paragraph 16.17 (page 239), that the primary object of making the death sentence mandatory for an offence under this section seems to be to give protection to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression '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. 10. 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) 11. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 that Death sentence is constitutional , that is to say, that It is permissible under the Constitution to provide for the sentence of death . To be exact, the question which arose for the consideration of the Court was not whether, under the Constitution , it is permissible to provide for the sentence of death. The precise question which arose in that case was whether Section 302 of the Penal Code which provides for the sentence of death as one of the two alternative sentences is valid. It may be recalled that Section 302 provides for the sentence of death as an alternative sentence which may be imposed. The normal Sentence for murder is life imprisonment; and if the death sentence has to be imposed, the Court is under a legal obligation under Section 354(3) of the Criminal Procedure Code to state the special reasons for imposing that sentence. That explains why, in Bachan Singh, Sarkaria J., who spoke for the majority, underscored the words alternative and m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the circumstances in which it was committed. Secondly, Section 354(3) of the CrPC applies in terms to those cases only wherein the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years . Since Section 303 does not provide for an alternative sentence, Section 354(3) has no application to cases arising under that section. Thirdly, Section 235(2) of the CrPC 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. 14. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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. 16. We will first deal with cases of murders committed by life-convicts within the precincts of the jail. 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 commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cit intimacy with his wife. If he finds them in an amorous position and shoots the seducer on the spot, he may stand a fair chance of escaping from the charge of murder, since the provocation is both grave and sudden. But if, on seeing his wife in the act of adultery, he leaves the house, goes to a shop, procures a weapon and returns to kill her paramour, there would be evidence of what is called mens rea, the intention to kill. And since, 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... datory 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. 19. 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 Sage Library of Social Research, London, Ed. 1980: 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 press ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 will show that among parolees who commit homicides, they rank very low. (P. 113) 21. 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 fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of death. The deprivation of these rights and safeguards which is bound to result in injustice is harsh, arbitrary and unjust. 25. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risonment 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. 28. 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, CrPC, 1898. and that seems to be sufficient. 29. In its Forty-second Report on the Indian Penal Code, published in June 1971, the Law Commission considered again the question of amending Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 31. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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. 34. 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. 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). 35. The question whether Section 302 which provides for a sentence of death as an alternative penalty was constitutionally valid was raised in Bachan Singh. Bachan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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