The question which arose for consideration in the case was 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 303 of Indian Penal Code
Section 303, 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.
Amendment Act 26 of 1955
It was in 1955 that section 397 of the Criminal Procedure Code of 1898 was replaced by a new section 397 by Amendment Act 26 of 1955. Under the new sub-section (2) of section 397 which came into force on January 1, 1956, if a person already undergoing a sentence of imprisonment for life was sentenced.
On a subsequent conviction to imprisonment for life, the subsequent sentence had to run concurrently with the previous sentence. Section 427(2) of the Criminal Procedure Code of 1973 is to the same effect. The object of referring to this aspect of the matter is to emphasise that when section 303 of the Penal Code was originally enacted, the legislature did not consider that even successive sentences of transportation for life were an adequate punishment for the offence of murder committed by a person who was under the sentence of life imprisonment.
While enacting section 303 in terms which create an absolute liability, the framers of the Penal Code ignored several important aspects of cases which attract the application of that section and of questions which are bound to arise under it. They seem to have had only one kind of case in their mind and that is, the commission of murder of a jail official by a life-convict.
It may be remembered that in those days, jail officials were foreigners, mostly Englishmen, and, alongside other provisions which were specially designed for the members of the ruling class as, for example, the choice of jurors, section 303 was enacted in order to prevent assaults by the indigenous breed upon the white officers.
In its 42nd Report (1971), the Law Commission of India has observed in paragraph 16.17 (page 239), that “the primary object of making the death sentence mandatory for an offence under this section seems to be to give protection to the prison staff”. We have no doubt that if a strictly penological view was taken of the situation dealt with by section 303, the framers of the Code would have had a second thought on their decision to make the death sentence mandatory, even without the aid of the constitutional constraints which operate now.
The Court said in the case of Mithu Singh,
“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.”
Reason of Decision
While explaining the reasons, the court said,
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.
When Lifer becomes Murderer
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.
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 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 und must be sentenced to death?
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.
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.
Conclusion
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.
Reference
Mithu v. State of Punjab (1983)