Home case analysis Mithu vs. State of Punjab (1983)

Mithu vs. State of Punjab (1983)

June 23, 2024

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This article is written by Arya Senapati. It attempts to analyse the landmark decision of the Apex Court in the case Mithu vs. State of Punjab through the facts, legal issues, legal provisions and judgement delivered. It deals with the constitutionality of Section 303 of the Indian Penal Code, 1860 and other related provisions.

Table of Contents

Introduction

Most recently, as the convicts in the Nirbhaya Rape case were hanged for the offenses of rape and murder, the topic of the death penalty has become an important part of debate. There are a growing number of death row inmates in India currently. Murder is regarded as a serious and heinous offence in India and is penalised under Section 302 of the Indian Penal Code, 1860. Those guilty of committing murder, i.e. culpable homicide amounting to murder, will be charged under the ambit of Section 302. After trial, if the accused is found guilty of murder, they are punished under Section 302, which ranges from life imprisonment to death. The severity of the sentence depends on the circumstances of the case and the nature of the offence committed. These attributes are taken into consideration by the court while delivering a judgement on the offence. Death sentence or death penalty, is usually referred to as “capital punishment”. It is the most serious form of sentencing that is imposed on an accused for grave criminal offences like murder, rape, terrorist activities, etc.

The jurisprudential idea behind imposing the death penalty is that when a person does an act that is so gruesome that the presence of the person in the folds of society poses a threat or danger to society and its people at large, it is the duty of the state to negate such a threat from society while setting an example of the consequences of such a heinous act for future offenders. To sentence the death penalty for causing murder is a form of retributive justice. In simpler terms, retributive justice implies “an eye for an eye.” Therefore, the idea of retributive justice connotes that the quantum of punishment given for a crime must be proportionate to the severity of the crime itself. Imposing the death penalty is also an act of creating deterrence. In criminal jurisprudence, exemplary forms of punishment like the death penalty are imposed to deter others from committing a similar form of crime in fear of such a strict punishment.

Death as a form of punishment has found its mention in the preliminary drafts of the Indian penal laws and has stood the test of time as one of the most effective forms of sentencing for offences with the highest degree of threat to society. They are still in application in their initial forms, except for a few minor changes in interpretation and understanding. While Section 302 dealt with the punishment for causing death, Section 303 of the IPC became a contentious provision as it stated that if a person is serving life imprisonment for committing any offence and, while being a life convict, causes murder, he shall be sentenced to the death penalty. The matter in this case lies in the constitutional validity of this provision, which provides for the mandatory death penalty in the event of a life convict being found guilty of murder.

Details of the case

Petitioner: Mithu Singh

Respondent: State of Punjab

Court: Supreme Court of India

Bench: Y.V. Chandrachud, Syed Murtaza Fazalali, V.D. Tulzapurkar, O. Chinnappa Reddy, and A. Varadarajan

Date decided: April 7, 1983

Citation: 1983 AIR 473

Facts of the case

The factual matrix of this case of Mithu v. State of Punjab (1983) involves a petition challenging the constitutional validity of Section 303 of the Indian Penal Code, 1860. As per the petitioners, Section 303 is an arbitrary and illogical provision that vitiates the fundamental rights guaranteed under the Indian Constitution. The two particular fundamental rights that were alleged to be violated by the application of Section 303 were Article 21 and Article 14. While Article 14 deals with Right to Equality before the law and equal protection of the law, Article 21 deals with Right to life and personal liberty.

The contention regarding the impugned provision is that the application of the provision is unlawful. It is contended so because the process through which a person is deprived of his life under Section 303 is unfair and highly unjust. Article 21 states that the life and liberty of a person can only be deprived through procedures established by law and the said procedures should be fair, reasonable, not arbitrary and not vague in any manner. The primary contention in the petition is that the sentencing of the death penalty to a person serving a life sentence who is subsequently found guilty of murder is an arbitrary procedure that is not just and fair as per law. In terms of Article 14, the petition states that the classification of “life inmates guilty of murder” is not a reasonable classification and therefore violates Article 14. The petition lastly prayed to the Apex Court to declare the provision unconstitutional.

Issues raised

Whether the application of Section 303 of the Indian Penal Code, 1860, violates the fundamental right to life and liberty enshrined under Article 21 of the Indian Constitution?
Whether the imposition of the death penalty on a life convict through Section 303 is a just and fair procedure established by law to deprive a person of their life? Does it fulfil the requirement under Article 21, that is, “No person shall be deprived of his life or personal liberty except according to procedure established by law”?
Whether Section 303 of the Indian Penal Code, 1860, is violative of Article 14, i.e., Right to Equality as enshrined under the Constitution of India?

Contentions of the petitioner

The learned counsel representing the petitioner put forth his primary contentions on the ground that the provisions enlisted in Section 303 of the Indian Penal Code are completely unreasonable and arbitrary in their operation. The provision is violative of Article 21 of the Indian Constitution. Article 21 states that no person shall be deprived of their life and personal liberty except through the procedure established by law. The procedure must be just, fair, reasonable and not arbitrary. In the case of Section 303, the provision is highly arbitrary as it doesn’t lay down a clear procedure for taking away the life of a life convict found guilty of murder. There is no clear delineation of procedures that should be followed and therefore it is unreasonable and vague.

The next argument is that Article 14 of the Indian Constitution, which deals with the right to equality, states that every person should be treated as equal in the eyes of the law and must be accorded equal protection of the law. In the case of murder, sentencing should therefore be equally imposed on convicts but in certain cases, life imprisonment is imposed as a punishment and in serious cases, the death penalty is imposed. The reason behind this relates to the seriousness of the offence and the degree of severity of the crime committed.

Article 14’s interpretation states that whenever a law is equally applied to a person or a class, there must be some reasonable classification for doing so. That is to say that there must be some object that the law is trying to fulfil and certain characteristics defining the class it is imposed on. There must be a reasonable nexus or connection between the object of the law and the classification created.

Through Section 303, a separate class is created, which is “life convicts guilty of murder,” and the object of the provision is to find a more severe deterrence to prevent a life convict from committing murder. As per the petitioners, such a classification is unreasonable and arbitrary and there is no relationship between the object of the law and the classification it creates. Therefore, it is violative of Article 14, as it doesn’t abide by the doctrine of reasonable classification.

Contentions of the respondent

The learned counsel for the respondent relied on the judgement of the Apex Court in the case of Bachan Singh vs. State of Punjab (1980). This case stated that the death penalty is constitutional in India and can be imposed by the courts but it should be imposed in the rarest of the rarest cases. To ascertain such cases, the degree of the offence must be extremely severe. The Death penalty is necessary to create deterrence in society by imposing such a severe sentence. Relying on the decision, the counsel for the respondent makes the point that the Supreme Court has already held the death penalty to be constitutional. Section 303 simply imposes the death penalty for a severe offence of murder committed by a life convict.

The learned counsel also refers to Section 354(3) of the Criminal Procedure Code, 1973, which states that the general punishment for committing murder is life imprisonment and in cases where the death penalty is imposed, the court must record reasons for imposing such a harsh penalty in writing. Therefore, in the procedural aspects of criminal law, the imposition of the death penalty is permitted on valid grounds. In this instant case, the grounds for imposing the death penalty are to prevent a life convict from committing the murder of jailors and other jail employees.

Judgement in Mithu vs. State of Punjab (1983)

The Apex Court held that Section 303 of the IPC is unconstitutional and void because it violates the rights contained in Articles 14 and 21. Hence, all the cases regarding murder shall be dealt with as per Section 302 of the IPC. The reasons for the unconstitutionality were discussed comprehensively in the judgement.

Rationale behind the Judgement

There are two judgments delivered in this case. The first one is by the then Chief Justice Y.V. Chandrachud and the second is a concurring judgement by J. Chinappa Reddy.

Y.V. Chandrachud’s Judgement

As per C.J. Y.V. Chandrachud, the primary question that arises in connection with the case is whether the provisions of Section 303 of the Indian Penal Code violate Article 21 of the Indian Constitution or not? Violation must be construed in relation to the provision, which states that “no person shall be deprived of his life or personal liberty except according to the procedure established by the law.
In relation to the criminal law, Section 300 of IPC defines Murder, while Section 302 states that “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 sole section that imposes life imprisonment. It is one of the 51 sections of the IPC that provide life imprisonment as a punishment for certain offences.
The primary distinction between those sections on one side and Section 302 on the other is that under the other sections, life imprisonment is the maximum quantum of punishment that can be imposed for an offence, but under Section 302, life imprisonment is the minimum degree of sentencing that is imposed for murder and the only options available to the court that finds a person guilty of murder are to impose life imprisonment or the death penalty as a sentence for the offence. Therefore, the general sentence for murder is life imprisonment.
A brief reading of Section 354(3) of the Code of Criminal Procedure, 1973 states that, upon conviction for an offence punishable with death or imprisonment for a term of certain years, the judgement must state reasons for delivering the sentence it deems appropriate and if it imposes death penalty, it must provide special reasons for doing so.
While dealing with the validity of the death penalty in the case of Bachan Singh vs. State of Punjab, this court stated that the penalty is valid but must be imposed in the most exceptional cases, which are the rarest of the rare cases.
The makers of the Indian Penal Code have been highly appreciated for their efforts in classifying various offences. They have also attached appropriate punishment for each of the offences so classified. The problem that they faced while doing so was finding an appropriate punishment for a life convict committing murder. This problem was solved by enacting Section 303, which imposed death penalty as the punishment for such an offence
One of the reasons why the imposition of death penalty was made mandatory under Section 303 can be found in the theory of deterrence. Such an exemplary punishment was thought to be effective in deterring others from committing such a severe crime. The only option in such a situation that was available to the lawmakers was the sentencing of the death penalty. The deterrent and retributive theories of punishment motivated the legislative judgement of the legislators to come up with such a provision.
Later, the reformative theory of punishment was deemed to be attractive to legal scholars in such a situation. The nature of subsequent sentencing can be understood by comparing the provisions related to it in the original Code of Criminal Procedure and the amended version that prevails currently. In the original version, whenever a person is undergoing a sentence of life imprisonment and is subsequently sentenced to another punishment for a subsequent offence, the second sentencing starts only after the expiry of the first one. This provision was enlisted in Section 397 of the original Criminal Procedure Code but later, this section was amended to state that whenever a person serving a sentence for life imprisonment is sentenced to a subsequent conviction, which also imposes a life imprisonment sentence, then in such cases, both sentences have to run concurrently with each other. Even Section 427(2) of the Criminal Procedure Code provides for a similar effect.
The reason for referring to this aspect of the criminal procedure code is to put emphasis on the fact that when Section 303 of the Indian Penal Code was enacted, the legislators did not take into consideration the possibility of successive sentencing for transportation of life as an adequate punishment for committing the offence of murder while the convict is serving a life sentence.
The punishment created under Section 303 creates a form of absolute liability and the legislators ignored various significant aspects of cases that could attract the imposition of these particular actions. Therefore, questions regarding its validity are bound to arise and those questions were also ignored by the lawmakers. The only situation that was present in the minds of the lawmakers was that one kind of case where the murder of a jail official is committed by a life convict. It is to be noted that in those days, jailors used to be Englishmen and foreigners and therefore, the provision was initially formulated keeping in mind the interests and protection of jail officials and ruling class people.
Before proceeding to point out the infirmities in Section 303 of IPC, it is important to pay heed to the argument of the petitioners. The counsel for the petitioner states that the substance of the provision is absolutely unreasonable and arbitrary and therefore it is violative of Article 21 of the Indian Constitution. Article 21 seeks to protect the life and liberty of people, except for procedures established by law to deprive an individual of life and liberty. Based on this argument, the court is of the opinion that it must be accepted as a valid argument and that Section 303 of the Indian Penal Code must be struck down as unconstitutional.
Referring to the decision of the Apex Court in the case of Maneka Gandhi vs. Union of India (1978), it was held by a seven judge bench that when a piece of legislation simply prescribes a procedure to deprive a person of life and liberty, it doesn’t by itself meet the requirements of Article 21. The procedure has to be fair, just and reasonable, and it cannot be fanciful, oppressive or arbitrary in any manner. In this case, J. Bhagwati held that the concept of reasonableness must be manifested in the procedure that is mentioned under Article 21 and Article 14 must also be brought into the connection.
Referring to Sunil Batra vs. Delhi Administration (1978), which dealt with the question of whether a person awaiting death sentence can be kept in solitary confinement or not, the court held that the constitution doesn’t follow the “due process” mechanism as enlisted in the American Constitution. The Indian Constitution follows the principle that whatever is an outrageous punishment, is unusual in a scandalising nature, is absolutely cruel and pays no consideration to the rehabilitation of an offender is considered unreasonable and arbitrary and therefore is violative of Articles 14 and 21 of the Indian Constitution.
Referring to the Bachan Singh judgement, the majority of the bench believed that the procedure envisioned under Article 21 of the Indian Constitution must be interpreted in light of the Maneka Gandhi decision. Such decisions have broadened the interpretations of Article 21. The courts are neither bound nor free to impose a fanciful procedure simply by blindly following the letters of the written law, thereby imposing a savage sentence.
A savage sentence is antithetical to the jurisprudence laid down in Article 21. It is for the courts to decide if a procedure laid down is fair and reasonable or not, just as the court has the power to decide whether a restriction imposed on a fundamental right is reasonable or not.
The respondent counsel makes the argument in reference to the decision laid out in Bachan Singh and states that Section 303 has no constitutional infirmity. Their primary contention is that Section 303 does nothing more than simply provide a death sentence for an offence of murder and that the ratio of Bachan Singh will apply to the questions of the validity of Section 303 and must be held to be conclusive.
As per the bench, the argument has a two pronged defect. The first is that it goes against the understanding of the Bachan Singh decision and secondly, it ignores the distinction between Section 302 and 303 of the Indian Penal Code. The decisions that are given by a court must be understood from a legal perspective and not an academic one. The court did not lay down a blanket decision that all forms of death sentences are constitutional nor did it say that it is allowed under the constitution to provide death sentences in any situation. The question that arose in Bachan Singh is whether it is permissible under the Constitution to impose the death sentence. It was interpreted as whether the death penalty, as one of the two options provided under Section 302, is valid or not. It is worth noting that the death penalty is simply an alternative under Section 302 and the primary sentence is life imprisonment. The court is also under an obligation to provide special reasons for imposing the death penalty.
In Bachan Singh, the majority held the death penalty under Section 302 to be constitutionally valid because it was an alternative to life imprisonment. There was a necessity to state special reasons for imposing the death penalty as a sentence and the accused is entitled to be heard in matters of sentencing under Section 235(2) of the Criminal Procedure Code.
If a law provides for the mandatory imposition of the death penalty, like Section 303 does, it vitiates the application of Sections 235(2) and 354(3) of the Criminal Procedure Code . If the court has no option of saving the application of the death penalty, it is absolutely meaningless to hear the accused on matters of sentencing, and it also becomes insignificant to provide any special grounds for providing the death sentence.
Therefore, the ratio of Bachan Singh is that the death penalty is constitutional only when it is an alternative. This ratio cannot be applied to this instant case and therefore the arguments of the respondent are invalid.
There is an apparent difference between Section 302 and 303 and the way Bachan Singh deals with Section 302, it cannot be applicable to 303 in the same manner as the court is mandated to provide a death sentence.
The next question that arises is whether there is any intelligible differentia for treating an accused who commits murder while being sentenced to life imprisonment differently. Can the accused be put in a different class as compared to others who are guilty of murder? And is there any nexus between such discrimination and the purpose behind the provision?. The court is unable to see any reasonable justification for creating a distinction in the manner of punishment between the two classes of offenders.
It is important to refer to the 42nd Law Commission Report on the Indian Penal Code, which dealt with the question of amending Section 303 and found its application anomalous. It is therefore suggested by the report that Section 303 must be amended to restrict the application to life convicts who are actually in prison.
Based on various principles mentioned above, the court is of the opinion that Section 303 is violative of the constitutional guarantees of equality as mentioned under Article 14 and the guarantees of life as mentioned under Article 21. Based on these assumptions, the court struck down Section 303 of the Indian Penal Code for being unconstitutional and declared it void. All cases of murder will therefore fall under Section 302 of the Indian Penal Code and there can be no imposition of mandatory death sentence.

J. Chinnappa Reddy’s Judgement

Justice Chinnappa Reddy delivered a concurring judgement in this case. As per the judgement, he refers to Section 303 of IPC as an anachronism that is not in pace with the changing nature of society as well as the developing tenets of human consciousness. It goes against the constitutional jurisprudence set out in India through various judgements and provisions.
It outright attacks the virtuosity of Article 21 and the jurisprudence that has developed from it, especially in the R.C. Cooper vs. Union of India (1970) case, which dealt with the nationalisation of banks and freed the constitution from the confines of a strict interpretation. After the decision in the bank nationalisation case, no fundamental rights of the constitution can be viewed or interpreted in isolation. They are connected to each other and must be interpreted in such a manner.
This position was strengthened by the Maneka Gandhi judgement, which held that articles that deal with various fundamental rights enshrined in the Constitution do not entail separate streams of light, but they mingle at many points. They are to be interpreted in an integrated manner to preserve the ideas of freedom, equality and fraternity that our constitution envisions. By isolating various fundamental notions of individual freedom, we create an unrealistic system that is not advantageous to constitutional protection but rather defeats it.
After the Maneka Gandhi judgement, it is clear that Article 21 is the focal point around which all other fundamental rights revolve. The procedure enshrined under Article 21 to deprive an individual of life and liberty has to be fair, impartial, just, reasonable, and not fanciful, arbitrary or oppressive.
As per the question of whether Section 302, which provides for the death sentence as an alternative punishment for murder, is constitutionally valid or not, it was dealt with in the case of Bachan Singh, where it was rightfully held to be valid as the judge had the option of providing a lesser sentence. The presence of judicial discretion is what prevented the imposition of the death penalty from being declared unconstitutional. Even with the discretion present, the court cautioned that the death penalty must be used in the rarest of the rare cases.
By judging in the light of the Maneka Gandhi and Bachan Singh judgments, it is almost impossible to declare Section 303 as constitutionally valid as it denies judicial discretion to courts. The quantum of justice is effectively removed from the hands of the judges through the application of Section 303.
The sentence of death is absolutely final, irrevocable and irresistible, and therefore, any law that makes it a mandate and denies the provision of application of judicial mind to it cannot be termed fair, just and reasonable.
Such provisions are arbitrary and oppressive. It is an exemplary bad law and therefore it must be struck down as unconstitutional and declared void.

Laws and doctrines involved in Mithu vs. State of Punjab (1983)

There are various important pieces of legislation and doctrine involved in this judgement. Some of the most notable ones are:

Article 14 of Indian Constitution

This Article of the Indian Constitution gives every individual, citizen or non-citizen, the right to equality before the law and equal treatment of the law. It ensures that every citizen and non-citizen of India is treated equally without facing any kind of discrimination. It attempts to preserve the integrity and applicability of the rule of law and order. As J. Bhagwati interpreted Article 14 in the Maneka Gandhi case, it is a dynamic principle that cannot be tied to a traditional or rudimentary understanding of law. It develops as society evolves and the mindset of the general populace changes. It is an important guard against the arbitrariness of state action and it safeguards justice and equal treatment of all state subjects.

Doctrine of Reasonable Classification

Even though Article 14 enshrines equal treatment before the law, in certain situations, it is permissible to apply a particular law differently to a particular class of people. The creation of such a distinct class is termed as classification and it must be reasonable to prevent the violation of Article 14. The classification must also have a reasonable connection with the purpose for which the legislation is enacted. This doctrine was developed in the case of Vajravelu Mudaliar vs. Special Deputy Collector for Land Acquisition (1964), which stated that the classification should not be arbitrary and that there has to be substantial reasoning behind the distinction drawn between people who fall into a particular class and people who do not. This doctrine was mentioned in the case to state the fact that the creation of a separate class, that is, convicts of an offence serving life imprisonment who later get convicted of murder, is an unreasonable classification as it is arbitrary and not fair or just.

Article 21 of Indian Constitution

Article 21 of the Indian Constitution guarantees the fundamental right to life and personal liberty. It states that no person shall be deprived of their life and personal liberty except as per the procedure established by law. It is a provision that has led to multiple interpretations and various peripheral and concomitant rights like the right to sexual orientation, the right to privacy, and the right to clean air and water. The “procedure established by law” is often compared to the “due process” mechanism followed in the American system. While due process may not accord any significance to fairness and just principles, procedures established by law have to be just, reasonable, fair and not arbitrary.

Section 302 of Indian Penal Code

Section 302 of the Indian Penal Code lays down the punishment for culpable homicide amounting to murder. It states that any person found guilty of committing murder shall be punished with life imprisonment or the death penalty. The normal sentencing is life imprisonment and in the most severe of cases, it shall be replaced with the death penalty.

Section 354 (3) of Criminal Procedure Code

Section 354(3) states that whenever a particular offence is punishable with death or, in alternative, with imprisonment for life or imprisonment for a certain number of years, the judge shall provide reasons for awarding the sentence that he deems appropriate in the Judgement and in case, the judgement awards the death penalty, the judge has to provide special reasons for imposing the gravest of punishments. This procedure is adopted to understand the application of the judicial mind while awarding a specific quantum of punishment based on the severity of the offence.

Section 235 (2) of Criminal Procedure Code

As per the provisions of Section 235(2) of the Criminal Procedure Code, whenever an accused is found guilty of an offence and is convicted, he must be given a reasonable opportunity to be heard by the judge in matters of sentencing before the sentence is imposed as per law. This provision seeks to protect the facet of natural law, “audi alteram partem,” which basically states that a person must be given a reasonable opportunity to be heard before getting sentenced.

Section 303 of Indian Penal Code

Section 303 of the Indian Penal Code states that any person who has been convicted of any offence previously and sentenced to life imprisonment must be punished with the death penalty if proved guilty of murder in a subsequent conviction. This provision is the impugned provision in the case. In the judgement of the case, this provision was declared to be constitutionally invalid and void as it made the death penalty a mandatory sentence and left no ground for application of judicial mind or discretion.

The provision regarding the mandatory death penalty in case of a life convict being found guilty of murder was initially introduced to the Indian Penal Code because the legislators found that there is no other option for imposing a higher degree of penalty on a life convict who is found guilty of murder. No other sentencing would serve as a strong means of deterrence, which would lead to a life convict having no fear of committing any other serious offence. The 42nd Law Commission Report observed the necessity of having this provision, which was introduced with the primary motive of providing protection to the prison staff and jailors from getting murdered by the life convict. The primary scenario that was in the minds of the lawmakers while creating this law was the murder of a jail employee by a life inmate.

Hence, the primary colonial motive behind the law was to safeguard British officers from being murdered by Indian inmates. Owing to the conflict between the British officials and the Indian nationals, it was highly possible that they would get attacked by an Indian inmate sentenced to life imprisonment. Therefore, the colonial motive to protect English officers was the main objective behind this section, which was challenged in the case of Mithu Singh vs. State of Punjab (1983).

Punishment for murder under Bharatiya Nyaya Sanhita, 2023

Under the new regime of criminal law enshrined under the Bharatiya Nyaya Sanhita, 2023, which seeks to replace the Indian Penal Code, 1860, Section 103 provides the punishment for murder as capital punishment or life imprisonment along with a fine. It is worth noting that if a group of five or more persons, after mutual consensus, commit murder on the grounds of race, caste, community, sex, place of birth, language, personal belief and other similar grounds, each of them shall be subject to either life imprisonment or the death penalty in addition to a fine. Section 80 of the Bharatiya Nyaya Sanhita states that in cases of dowry death, which constitutes the demise of a woman through burns, bodily injury or other normal circumstances within 7 years of marriage, anyone found guilty of such an offence will be punished with at least 7 years imprisonment, which can be extended to life. Section 104 of the Bharatiya Nyaya Sanhita is modelled after the contentious Section 303 of the Indian Penal Code, which was held to be unconstitutional in the Mithu vs. State of Punjab case. It states that any person who is serving a sentence of life imprisonment and gets convicted of a subsequent charge of murder shall be punished with death or with imprisonment for the remaining period of the person’s natural life. The fact that the provision provides for an alternative to the death penalty in the form of life imprisonment, which extends to the remaining period of the natural life of the person, is enough to attach constitutional validity to the new provision. The lack of alternative sentencing would have put the provision at risk of being constitutionally invalid or void.

Related case laws

Jagmohan Singh vs. State of U.P. (1972)

In this case, the Supreme Court held that the imposition of the death penalty as an effective form of punishment did not infringe upon the right to life, the right to equality and the right to freedom of speech and expression as enshrined under Articles 14, 19 and 21 of the Indian Constitution. The judge must, however, scrutinise the facts of the case, the circumstances in which the offence was committed, the nature of the criminal offence, and other relevant attributes while deciding if the convict shall be sentenced to the death penalty or life imprisonment. The sentencing of the death penalty must always be done while abiding by the procedure laid down by law under Article 21 of the Constitution.

Rajendra Prasad vs. State of U.P (1979)

In this case, the Apex Court held that the death penalty must only be imposed in cases where the individual is proved to be such a gruesome and horrific threat to the security of society and people who are a part of society that the only measure of deterrence and retribution is capital punishment. J. Krishna Iyer laid down specifically three categories of offenders who can be inflicted with capital punishment. They are: (a) offenders convicted of white collar crimes; (b) offenders involved in socio-economic offences like offences against women, scheduled castes and scheduled tribes; (c) wherever it is necessary to remove a person from society while he poses an imminent and insurmountable amount of threat to society, for e.g., a serial killer or a terrorist.

Bachan Singh vs. State of Punjab (1980)

In this case, the court held that the provision of the death penalty is present in Section 302 only as an alternative to life imprisonment and therefore, it cannot be held to be unreasonable and it is not in the interest of the public to declare it unconstitutional as the Parliament has already reviewed the provision many times. Even though the court did not hold the provision to be an unconstitutional one, it created the doctrine of “rarest of rare,” where it stated that the death penalty can only be imposed as a sentence in the rarest of cases. The court has to consider various aggravating and mitigating factors while granting the death sentence to a person convicted of an offence where the death penalty is an option for sentencing.

Aftermath of the judgement

The decision of Mithu v. State of Punjab (1983) had a significant impact on many decisions that came after it regarding the death penalty. Some of the most notable judgements are:

Indian Harm Reduction Network vs. Union of India (2011)

In this case, the validity of Section 31 of the Narcotics, Drugs and Psychotropic Substances Act, 1985, was challenged by a petition contending that it violated Articles 14 and 21 of the Constitution of India. This section made it mandatory for the courts to impose the death penalty upon second conviction on certain offences made under this Act. The Apex Court referred to its judgement in Mithu vs. State of Punjab and held that the classification that was sought to be created for application of the legislation is a valid classification. The classification has a rational nexus with the object of the Act and therefore it is not violative of Article 14 but it is found to be violative of Article 21, as the procedure laid down is unjust and unfair. Therefore, the provision is constitutionally invalid and void. The Apex Court acknowledged that Mithu is the only and, therefore, the leading authority on the mandatory death penalty and therefore all references in such cases must be made to it. There is no space for the mandatory death penalty under our constitution, as it takes away judicial discretion.

State of Punjab v. Dalbir Singh (2012)

The Arms Act, 1959, deals with matters of acquisition, possession, manufacture, sale, transportation, import and export of arms and ammunition. Section 7 of the act forbids the manufacture, use and sale of prohibited arms unless permitted by the Central Government. Section 27(3) states that any contravention of Section 7 that results in the death of any person will lead to the imposition of the death penalty on the accused. This section was challenged in this instant case, wherein the mandatory nature of the death penalty was challenged. The Apex Court referred to its decision in Mithu v. State of Punjab and held that any provision of law that results in depriving the courts of their discretion and gives no regard to the circumstances in which an offence is committed is harsh, unjust and unfair. It is necessary for a law to be just, fair and reasonable under Articles 14 and 21 of the Constitution. Any law that imposes an irreversible penalty as harsh as death is repugnant to the concepts of right and reason. Based on these principles, Section 27(3) was declared unconstitutional and void.

Machhi Singh v. State of Punjab (1983)

This case provided a newer understanding of the rarest of the rare doctrine and stated that if any member of a society violates the belief that “respect for life” by killing another person from the society, then the society will not be bound by the principle of “no death sentence in any case.” Every member of a community must value the rule of law. When the Court imposes the death penalty on any person, it must state special reasons for doing so, and those special reasons must be determined through the lens of aggravating and mitigating factors. The court must consider what amount of weight must be placed on certain aggravating and mitigating factors based on the facts and circumstances of the case. Some of the aggravating circumstances that the court laid down for imposing the death penalty are: murder committed with extreme brutality and previous planning; if the murder involves exceptional depravity; if the murder is of a member of the armed forces or any police officer while such officer was on duty. The mitigating factors that the court laid down to reduce the quantum of sentence are: an offence committed under a state of mental or emotional disturbance; the accused is too young or too old, there is a greater chance that the accused would not commit any other offence in the future and stop being a threat to society, there is a chance that the accused can be reformed and rehabilitated for his betterment and for the betterment of the society, the accused acted under duress or coercion of another person; the accused was mentally defective and therefore was incapable of judging the consequences of his actions. The burden of proof proving that the accused has no chance of being reformed or rehabilitated falls upon the state. The extreme penalty of death must only be awarded in cases of grave culpability and before opting for death sentencing, the circumstances must be taken into consideration. It reiterated the fact that life imprisonment is the norm and a death sentence is an exception.

Kehar Singh v. Union of India (1988)

In this case, a five judge bench of the Supreme Court held that the powers of the President and the Governors to decide on mercy petitions for death row inmates as under Articles 72 and 161 of the Constitution are different from those of the powers given to the court. These two separate powers are exercised separately and the President has the power to give a different opinion or decision as compared to courts. The President also has the power to give an opportunity for oral hearing to the convicts. Oral hearings are not a right; they are at the discretion of the President. Furthermore, the courts have no scrutiny over the powers exercised by the President. The judiciary cannot go into the merits of the President’s decisions. The court simply has the power to ascertain that the process through which the President made the decision was in accordance with the procedural requirements of the constitution. The court has to ensure that the process is not unconstitutional in any means.

Swamy Shraddhananda & Murali Manohar Mishra v State of Karnataka (2008)

This case did not deal with the validity of the death penalty, as it was thoroughly discussed in the Bachan Singh and Mithu judgements. The court, in this case, focused primarily on standardising the cases where the death penalty can be imposed and creating a proper category for the same. The court wished to set guidelines and enter into categorisation to prevent arbitrariness in the imposition of the death penalty. The court recognised that with serious offences, there would always be a scope for arbitrary and capricious imposition of the death penalty. The Court upheld the prior decision made in the Jagmohan Singh case and stated that it is almost impossible to provide a clear list of aggravating and mitigating factors to be considered while sentencing an offender. It stated that in the Macchi Singh case, the court enlarged the ambit of the death penalty beyond the intended limits set in the Bachan Singh Judgement. The court recognised that the categorisation of circumstances mentioned in Macchi Singh cannot be held to be absolute but is merely suggestive. The primary intention of the court in the Bachan Singh case to keep the categories flexible must be preserved at all costs.

Santosh Kumar Satishbhushan Bariyar v State of Maharashtra (2009)

While interpreting the “rarest of the rare” doctrine in this case, the Supreme Court held that the decision in the Bachan Singh case must be upheld that death sentence must be imposed unless life imprisonment is absolutely out of question. The court further states that while ascertaining if death penalty must be imposed, the court has the duty to apply a two-part test. First, it is upon the judge to determine if the case falls under the rarest of the rare doctrine and second, the court must draw a list of aggravating and mitigating factors to determine the same. In the second part, the court must choose the alternative to life imprisonment only when it sees that there is no chance of reformation and rehabilitation of the accused. The court must also prove why the convict cannot be reformed or rehabilitated in any way while sentenced to the death penalty.

Shatrughan Chauhan v. Union of India (2014)

In this case, the Supreme Court largely dealt with commuting death sentences due to large delays in executing mercy petitions. A three judge bench of the Apex Court held that such excessive delays in the execution of death penalty cannot be reasonable grounds for commuting a death sentence. At this point, it is not important for the courts to pay any attention to the circumstances, facts, gravity and nature of the case while judging the commutation of death sentences.

Mukesh v. State of Delhi (2017)

In this case, a three judge bench of the Apex Court held that, whenever there are any defects in death sentences, the higher court can remand the matter to lower courts and alternatively, the court can permit the accused to submit any data and arguments to the court on questions which concern the quantum of their sentencing.

Critical analysis of the judgement

The death penalty is a harsh, irreversible and irrestitutable sentence that deprives a person of their life. Due to the severe nature of the punishment, the global forums have debated the abolition. There have been many human rights organisations that claim that the death penalty is a violation of the Right to Life. In the Indian context, the right to life is not an absolute right under Article 21, as the same Article states that a person can be deprived of their life and liberty through procedures established by law. Through many judgements, the court has interpreted this section to state that the procedure to deprive a person of their life must be fair, reasonable, just and not arbitrary. Therefore, an analysis of an array of judicial decisions on the validity and interpretation of the death penalty is necessary for providing a proper conceptual framework for its imposition and understanding. The decision in Mithu v. State of Punjab takes this approach forward and upholds the fact that the death penalty cannot be a mandatory sentence. It adds an extra layer to the decisions before it, which held that the death penalty must be applied in the rarest of the rare situations, while paving the way for future decisions to interpret the death penalty through a lens of aggravating and mitigating factors. The judgement’s intention to protect the application of judicial discretion while imposing a death sentence is the most significant aspect of it. By taking away this discretion, a law becomes harsh and consequently, a savage punishment is imposed. Therefore, this decision will be instrumental in protecting judicial discretion in matters involving the sentencing of the death penalty.

Conclusion

As the global forum and the United Nations deliberate constantly to abolish the death penalty as a form of sentencing to fully realise the right to life, India has been seen to go against resolutions that demand the complete abolition of the death penalty. The death penalty is still a reality in India due to its excessive reliance on deterrence and retributive theories of punishment. The justification given for allowing the constitutional existence of the death penalty in India is that it is not mandated anywhere and is always present with an alternative form of sentencing wherein the court has the discretion to apply judicial mind while deciding the appropriate form of sentencing. Therefore, it becomes all the more important to review the constitutional aspects of the death penalty and understand why it is deemed to be constitutional by the judiciary. Cases like Mithu vs. State of Punjab are contrasted with judgments like Bachan Singh vs. State of Punjab to understand and analyse the judicial stream of thought that protects the constitutional validity of the death penalty while giving essential directions on its imposition.

Frequently asked questions

What is the ratio in the case of Mithu vs. State of Punjab?

The ratio in the case of Mithu vs. State of Punjab states that the death penalty is constitutional only when there is an alternative option of life imprisonment or any other form of sentencing available to the court. If the right of the court to apply judicial discretion is taken away by a law, then the law is unconstitutional. If the procedure of providing special reasons for imposing the death penalty and allowing a convict an opportunity to be heard before sentencing is reduced to a mere formality, then the law is unconstitutional.

In which case in independent India was the death penalty first sentenced?

The first case in Independent India that imposed the death penalty as a sentence on the convict is the case of Nathuram Godse vs. The Crown (1949). The convict of Mahatma Gandhi’s murder, Nathu Ram Godse, was hanged till death for the said offence. Later on, the death penalty was imposed on Afzal Guru in the case of State of Delhi v. Navjyot Sandhu (2005), who attacked the Indian Parliament and then Ajmal Kasab in the case of Md. Ajmal Md. Amir Kasab v. State of Maharastra (2012), for being responsible for the Mumbai attack of 2008.

What are some examples of offences where the death penalty can be imposed as a punishment?

Some of the offences that provide the imposition of the death penalty are: Waging war against the government; abetment of suicide by a child or an insane person; kidnapping for ransom, rape on women under 12 years of age; dacoity with murder; gang rape on women under 12 years of age; and giving false evidence that leads to an innocent person suffering death.

Which case decided the constitutional validity of the death penalty?

The case of Bachan Singh vs. State of Punjab upheld the constitutional validity of the death penalty. It was also decided that the imposition of the death penalty is valid only when it is done after the application of judicial discretion following the procedure established by law. Even though it is constitutionally valid, it should be imposed in the rarest of the rare cases.

References

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