REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.117 OF 2006

State of Punjab .....Appellant(s)

- Versus -

Dalbir Singh ....Respondent(s)

J U D G M E N T

GANGULY, J.

1.This appeal at the instance of the State has been

preferred from the judgment of the Division Bench of

the High Court of Punjab and Haryana at Chandigarh,

dated July 27, 2005 in Criminal Appeal No. 250/1996

whereby High Court gave the appellant the benefit of

doubt and acquitted him of the charges framed

against him.

1

2.Briefly, the facts of the case are that the

respondent Dalbir Singh, a constable in 36

th

Battalion Central Reserve Police Force, at the

relevant time was posted at Fatehabad, District

Amritsar, Punjab. On April 11

th

, 1993, Harish

Chander, the Battalion Havaldar Major (hereinafter

‘B.H.M.’) in ‘Company D’ of the Battalion, reported

to Hari Singh, the Deputy Commandant Quarter Master

(hereinafter ‘Deputy Commandant’), that the accused

had refused to carry out the fatigue duty assigned

to him. On such report being made, the Deputy

Commandant directed the B.H.M. and Sub Inspector

Kewal Singh to produce the accused before him. As

per these directions, the accused was produced

before the Deputy Commandant at 11:15 a.m. Upon

being warned verbally about his non compliance of

the orders for fatigue duty, the accused requested

the warning to be issued in writing. Upon such a

response, the Deputy Commandant ordered the B.H.M.

and the Sub Inspector to have the accused present

before him the next morning.

2

3.However, immediately after these talks, the Deputy

Commandant’s office saw firing from a Self Loading

Rifle (SLR), even as the Deputy Commandant himself

and the B.H.M. were inside it. As the Deputy

Commandant positioned himself underneath a table, he

allegedly noted that it was the accused who was

firing from a rifle from a tent pitched outside. He

was allegedly hit in his back. The B.H.M. sustained

multiple bullet injuries in his shoulders.

4.This entire incident was allegedly witnessed by

Constable Dalip Kumar Mishra and Sub Inspector Kewal

Singh. Eventually, when the firing had stopped and

the accused was trying to reload his gun, he was

overpowered and disarmed by Constable Mishra. The

Deputy Commandant directed the Sub Inspector Kewal

Singh to hand over the accused to the police, while

he himself and B.H.M. Harish Chander were rushed to

Sri Guru Nanak Hospital. Unfortunately, B.H.M.

Harish Chander died en route and his body was

identified in the hospital. The Deputy Commandant

3

recorded his statement (Ex. PH) and an F.I.R. (Ex.

PH/2) was registered at the hospital by Sub

Inspector Jaswant Singh.

5.During investigation, the Investigating Officer, in

the presence of SI Kewal Singh and Constable Mishra,

found 20 empty bullet-cartridges (Ex.P4-P23) at the

Battalion Headquarters at Khawaspur. These were

taken into possession after putting them in a sealed

parcel through recovery memo (Ex.PK). The empty

cartridges were sent to the Forensic Science

Laboratory on 15.4.1993 and the SLR was forwarded on

23.4.1993.

6.After investigation a challan was put in the Court

of the Ilaqua Magistrate who found that the case was

exclusively triable by the Court of Session,

committed the same to Court of Session. The accused

was charged under Section 302 and 307 of IPC and

under Section 27 of the Arms Act. The accused

pleaded not guilty and the Prosecution was called

4

upon to examine its witnesses including DCQM Hari

Singh (PW.6), SI Kewal Singh (PW.7), Constable

Mishra (PW.9) and Sub Inspector Jaswant Singh. The

accused, upon examination, denied all circumstances

and asserted that he was innocent and had been

falsely implicated. The Trial Court consequently

convicted the accused under Section 302 of IPC,

sentencing him to rigorous imprisonment for life and

fine of Rs.2,000/-, under Section 307 of IPC,

sentencing him to rigorous imprisonment for 5 years

and fine of Rs.2,000/-, and under Section 27 of Arms

Act, sentencing him to rigorous imprisonment for 3

years and fine of Rs.1,000/-. The substantive

sentences were ordered to run concurrently.

7.In the impugned judgment the High Court while

reversing the order of conviction found that there

is some irreconcilable inconsistency in the

prosecution case. The High Court found that PW.9

the alleged eye witness deposed that the respondent

was apprehended at the spot by him and he was

5

disarmed by him and the SLR which was being used by

the accused was taken in his possession and the

accused was handed over to the Court. But according

to the Investigating Officer (IO) PW.12, he went to

the place of occurrence on the date of occurrence

i.e. on 11.4.93, but neither the accused nor the SLR

allegedly used by the accused were handed over to

him. The further evidence of the IO is that on

14.4.93, the accused was handed over to him outside

the CRPF headquarters. Then on his disclosure

statement the SLR was recovered. In view of such

irreconcilable discrepancy in the evidence of the

prosecution, the High Court came to the finding that

the prosecution was trying to suppress a vital part

of the case and the incident did not take place in

the manner presented by the prosecution. The High

Court further found that even though the prosecution

allegation is that 20 cartridges were fired, only 7

empties were recovered and none of the bullets were

recovered. The High Court found that the same is

very surprising when the prosecution version is that

20 bullets were actually fired in a room towards the

6

side where there are no windows. It is, therefore,

impossible that none of the bullets had been

recovered. In view of the aforesaid finding of the

High Court the accused was given the benefit of

doubt.

8.We are of the opinion that there is no reason to

interfere with the order of acquittal given by the

High Court sitting in our jurisdiction under Article

136 of the Constitution. We do not think that the

order of the High Court is either perverse or not

based on proper appreciation of evidence. Therefore,

on the merits of the order of acquittal granted by

the High Court we find no reason to interfere. But

since in this case the accused was charged under

Section 27(3) of the Arms Act (hereinafter, ‘the

Act’) and since the vires of Section 27(3) of the

said Act has been questioned, we proceed to examine

the said issue in detail.

7

9.In this matter leave was granted on 16.1.2006. On

31.8.2010, a Division Bench of this Court issued

notice to the Attorney General as vires of Section

27(3) of the Act was challenged in the said

proceeding.

10.Pursuant to such notice Mr. Gourab Banerjee, the

learned ASG initially submitted before this Court on

15

th

March, 2011 and again on 21

st

July, 2011 that a

proposal to amend Section 27(3) of the Act is under

consideration of the Government of India and as such

matter was adjourned. Thereafter the matter was

heard on 1

st

December, 2011 and on subsequent dates

both on merits of the High Court order and also on

the question of vires of Section 27(3) of the Act.

11.Since the Court is to examine the constitutional

validity of Section 27, sub-section (3) of the Act,

for a proper appreciation of the questions involved,

Section 27 of the Act is set out below:-

8

“27.Punishment for using arms, etc.-

(1) Whoever uses any arms or ammunition in

contravention of section 5 shall be

punishable with imprisonment for a term

which shall not be less than three years

but which may extend to seven years and

shall also be liable to fine.

(2) Whoever uses any prohibited arms or

prohibited ammunition in contravention of

section 7 shall be punishable with

imprisonment for a term which shall not be

less than seven years but which may extend

to imprisonment for life and shall also be

liable to fine.

(3) Whoever uses any prohibited arms or

prohibited ammunition or does any act in

contravention of section 7 and such use or

act results in the death of any other

person, shall be punishable with death.”

12.The present form of Section 27 including Section

27(3) has come by way of amendment, namely, by

Amending Act 42 of 1988, the previous Section 27 was

substituted. The Arms Act was enacted in 1959. At

the time when it was enacted, Section 27 was in the

following form:-

“27. Punishment for possessing arms, etc.,

with intent to use them for unlawful purpose –

9

Whoever has in his possession any arms

or ammunition with intent to use the same

for any unlawful purpose or to enable any

other person to use the same for any

unlawful purpose shall, whether such

unlawful purpose has been carried into

effect or not, be punishable with

imprisonment for a term which may extend

to seven years, or with fine or with

both.”

13.The Statements of Objects and Reasons of Act 42 of

1988 (the Amending Act) are as follows:-

“Act 42 of 1988 . - The Arms Act, 1959 had

been amended to provide for enhanced

punishments in respect of offences under

that Act in the context of escalating

terrorist and anti-national activities.

However, it was reported that terrorist and

anti-national elements, particularly in

Punjab had in the recent past acquired

automatic firearms, machine guns of various

types, rockets and rocket launchers.

Although the definitions of the expressions

"arms", "ammunitions", "prohibited arms"

and “prohibited ammunition” included in the

Act are adequate to cover the aforesaid

lethal weapons in the matter of punishments

for offences relating to arms, the Act did

not make any distinction between offences

involving ordinary arms and the more lethal

prohibited arms and prohibited ammunition.

Further while the Act provided for

punishment of persons in possession of arms

and ammunition with intent to use them for

any unlawful purpose, it did not provide

for any penalties for the actual use of

illegal arms. To overcome these

deficiencies, it was proposed to amend the

Act by providing for deterrent punishment

for offences relating to prohibited arms

and ammunition and for the illegal use of

firearms and ammunition so as to

effectively meet the challenges from the

terrorist and anti-national elements.

1

Accordingly, the Arms (Amendment)

Ordinance, 1988 was promulgated by the

President on the 27

th

May, 1988. The

Ordinance amended the Act to provide for

the followings among other things namely:-

(i) The definitions of "ammunition" and

"prohibited ammunition" have been amended

to include missiles so as to put the matter

beyond any doubt;

(ii) Deterrent punishments have been

provided for offences involving prohibited

arms and prohibited ammunition;

(iii) Punishments have also been provided

for the use of illegal arms and ammunition

and death penalty has been provided if such

use causes death."

14.A perusal of Section 27, sub-section (3), the vires

of which has been challenged, shows that if by mere

use of any prohibited arms or prohibited ammunitions

or if any act is done by any person in contravention

of Section 7, he shall be punishable with death.

15.Section 7 of the said Act prohibits acquisition or

possession, or manufacture or sale of prohibited

arms or prohibited ammunitions. The said Section 7

is set out below:-

1

“7.Prohibition of acquisition or

possession, or of manufacture or sale, of

prohibited arms or prohibited ammunition.-

No person shall--

(a) acquire, have in his possession or

carry; or

(b)

use, manufacture, sell, transfer,

convert, repair, test or prove; or

(c) expose or offer for sale or transfer or

have in his possession for sale, transfer,

conversion, repair, test or proof;

any prohibited arms or prohibited

ammunition unless he has been specially

authorised by the Central Government in

this behalf.”

16.In the definition clause prohibited ammunitions

and prohibited arms have been defined respectively

under Section 2, sub-Sections (h) and (i)

respectively of the said Act. Those definitions are

set out below:-

“(h) “Prohibited ammunition” means any

ammunition, containing, or designed or

adapted to contain, any noxious liquid,

gas or other such thing, and includes

rockets, bombs, grenades, shells, missiles

articles designed for torpedo service and

submarine mining and such other articles

as the Central Government may, by

notification in the Official Gazette,

specify to be prohibited ammunition;”

“(i) "prohibited arms" means--

1

(i) firearms so designed or adapted

that, if pressure is applied to the

trigger, missiles continue to be

discharged until pressure is removed

from the trigger or the magazine

containing the missiles is empty, or

(ii) weapons of any description

designed or adapted for the discharge

of any noxious liquid, gas or other

such thing,

and includes artillery, anti-aircraft

and anti-tank firearms and such other

arms as the Central Government may, by

notification in the Official Gazette,

specify to be prohibited arms;”

17.The word ‘acquire’, ‘possession’ or ‘carry’ has

not been defined under the said Act nor the word

‘used’, ‘manufacture’, ‘sale’, ‘convert’, ‘repair’,

‘test’ or ‘prove’ have been defined in the Act. The

word ‘transfer’ has only been defined in Section

2(k) to mean as follows:-

“(k) “transfer” with its grammatical

variations and cognate expressions,

includes letting on hire, lending, giving

and parting with possession.”

18.Section 7 imposes a prohibition on certain acts in

respect of prohibited arms and ammunitions but

1

Section 7 does not spell out the penalty. The

penalty for contravention of Section 7 is provided

under Section 27(3) of the Act as mentioned above.

19.If we look at Section 27, which has been set out

above, it is divided into three sub-sections. Sub-

section 1 prescribes that if any person who uses any

arms or ammunition in contravention of section 5 he

shall be punishable with imprisonment for a term

which shall not be not less than three years but

which may extend to seven years and he shall also be

liable to fine. Section 5 prohibits manufacture,

sale of arms and ammunition. Sub-section (2) of

Section 27 provides for higher punishment, inter

alia, on the ground that whoever uses any prohibited

arms or prohibited ammunition in contravention of

Section 7, he shall be punishable with imprisonment

for a term which shall not be less than seven years

but which may extend to imprisonment for life and he

shall also be liable to fine.

1

20.Section 7 prohibits acquisition or possession, or

of manufacture or sale, of prohibited arms or

prohibited ammunition. Therefore, between Section 5

and Section 7 of the Act a distinction has been made

since manufacture and sale of arms and ammunition is

dealt with in Section 5 but Section 7 deals with

prohibition of acquisition or possession, or of

manufacture or sale, of prohibited arms and

ammunition. Therefore, there is a reasonable

classification between Section 5 and Section 7 of

the Act. Consequently, there is valid classification

between Sections 27(1) and 27(2) on the severity of

the punishment.

21.But so far as sub-section (3) of Section 27 is

concerned, the same stands apart in as much as it

imposes a mandatory death penalty. The difference

between sub-section (2) and sub-section (3) of

Section 27 is that under sub-section (2) of Section

27 if a person uses any prohibited arms or

ammunition in contravention of Section 7, he shall

1

be punished with imprisonment for a term of less

than seven years which may extend to imprisonment

for life and also with fine. But if the said use or

act prohibited under Section 7 results in the death

of any other person he shall be punishable with

death penalty. Therefore, Section 27(3) is very wide

in the sense anything done in contravention of

Section 7 of the Act and with the use of a

prohibited arms and ammunition resulting in death

will attract mandatory death penalty. Even if any

act done in contravention of Section 7, namely,

acquisition or possession, or manufacture or sale,

of prohibited arms results in death of any person,

the person in contravention of Section 7 shall be

punished with death. This is thus a very drastic

provision for many reasons. Apart from the fact that

this imposes a mandatory death penalty the Section

is so widely worded to the extent that if as a

result of any accidental or unintentional use or any

accident arising out of any act in contravention of

Section 7, death results, the only punishment, which

has to be mandatorily imposed on the person in

1

contravention is, death. It may be also noted in

this connection that language used is ‘results’

which is wider than the expression ‘causes’. The

word ‘results’ means the outcome and is wider than

the expression ‘causes’.

22.Therefore, very wide expression has been used in

Section 27(3) of the Act and without any guideline

leading to mandatory punishment of death penalty.

23.In this connection we may compare Section 302 of

the IPC with Section 27(3) of the Act. Section 302

is as follows:

“302. Punishment for murder. - Whoever

commits murder shall be punished with

death, or imprisonment for life, and shall

also be liable to fine.”

24.In Section 302 of IPC death penalty is not

mandatory but it is optional. Apart from that the

1

word ‘murder’ has been very elaborately defined in

Section 300 of IPC with various exceptions and

explanations. Section 300 of IPC is set out below:

“300. Murder .-Except in the cases

hereinafter excepted, culpable homicide is

murder, if the act by which the death is

caused is done with the intention of

causing death, or-

Secondly.-If it is done with the intention

of causing such bodily injury as the

offender knows to be likely to cause the

death of the person to whom the harm is

caused, or

Thirdly.-If it is done with the intention

of causing bodily injury to any person and

the bodily injury intended to be inflicted

is sufficient in the ordinary course of

nature to cause death, or-

Fourthly.-If the person committing the act

knows that it is so imminently dangerous

that it must, in all probability, cause

death or such bodily injury as is likely

to cause death, and commits such act

without any excuse for incurring the risk

of causing death or such injury as

aforesaid.

Exception 1.-When culpable homicide is not

murder.-Culpable homicide is not murder if

the offender, whilst deprived of the power

of self-control by grave and sudden

provocation, causes the death of the

person who gave the provocation or causes

1

the death of any other person by mistake

or accident.

The above exception is subject to the

following provisos:-

First.-That the provocation is not sought

or voluntarily provoked by the offender as

an excuse for killing or doing harm to any

person.

Secondly.-That the provocation is not

given by anything done in obedience to the

law, or by a public servant in the lawful

exercise of the powers of such public

servant.

Thirdly.-That the provocation is not given

by anything done in the lawful exercise of

the right of private defence.

Explanation.-Whether the provocation was

grave and sudden enough to prevent the

offence from amounting to murder is a

question of fact.”

25.But in the case of Section 27(3) law is totally

devoid of any guidelines and no exceptions have been

carved out. It is common ground that the said

amendment of Section 27 was brought about in 1988

which was much after the Constitution of India has

come into operation.

1

26.The Parliament while making law has to function

under the specific mandates of the Constitution.

Apart from the restrictions imposed on distribution

of legislative powers under Part XI of the

Constitution by Article 245 onwards, the direct

mandate of the Constitution under Article 13 is that

the State shall not make any law which takes away or

abridges the right conferred by Part III of the

Constitution and any law made in contravention of

the same is, to the extent of contravention, void.

Article 13 is set out hereinbelow:

“13.Laws inconsistent with or in

derogation of the fundamental rights: (1)

All laws in force in the territory of

India immediately before the commencement

of this Constitution, in so far as they

are inconsistent with the provisions of

this Part, shall, to the extent of such

inconsistency, be void.

(2)The State shall not make any law which

takes away or abridges the rights

conferred by this Part and any law made in

contravention of this clause shall, to the

extent of the contravention, be void.

(3)In this article, unless the context

otherwise requires,-

(a) “law” includes any Ordinance,

order, bye-law, rule, regulation,

2

notification, custom or usage having in

the territory of India the force of law;

(b)“laws in force” includes laws

passed or made by a Legislature or other

competent authority in the territory of

India before the commencement of this

Constitution and not previously repealed,

notwithstanding that any such law or any

part thereof may not be then in operation

either at all or in particular areas.

(4) Nothing in this article shall apply to

any amendment of this Constitution made

under Article 368.

27.It is obvious from the aforesaid that Article

13(2) clearly prohibits the making of any law by the

State which takes away or abridges rights, conferred

by Part III of the Constitution. In the event of

such a law being made the same shall be void to the

extent of contravention.

28.It is obvious that only the judiciary can give the

declaration that a law being in contravention of the

mandate of Part-III of the Constitution is void.

Therefore, power of judicial review is inherent in

2

our Constitution. Article 13 of the Constitution is,

therefore, a unique feature in our Constitution.

29.Mr. Banerjee, the learned A.S.G appearing on behalf

of Union of India submitted that after notice was

issued in this matter to the Attorney General, the

matter was examined by the Government of India and a

tentative decision to amend Section 27(3) of the Act

retrospectively with effect from 27

th

May, 1988 was

under the contemplation of the Government. Pursuant

to such exercise, the Union Home Minister gave

notice to the Secretary General of the Lok Sabha on

17

th

November, 2011 of its intention to move for

leave to introduce the said Bill in the Lok Sabha

and the Bill was introduced in the Lok Sabha in the

following form. The form in which it is sought to be

introduced in the Lok Sabha is as follows:

“Be it enacted by Parliament in the

Sixty-second year of the Republic of India

as follows:-

2

1. (1) This Act may

be called the Arms

(Amendment) Act, 2011

Short title

and

commencement

(2) It shall be deemed

to have come into

force on the 27

th

day

of May, 1988

54 of

1959

2. In the Arms Act,

1959 in Section 27, in

sub-section (3), for

the words “shall be

punishable with death”

The words “shall be

punishable with death

or imprisonment for

life and shall also be

liable to fine”, shall

be substituted.

30.Leaned Addl. Solicitor General submitted that in the

light of the aforesaid pronouncement by this Court

in Mithu vs. State of Punjab – (1983) 2 SCC 277, the

government is examining the question of making

suitable amendments as indicated above to Section

27(3) of the Act.

31.This Court, however, is not inclined to defer its

decision. The Court, however, cannot refuse to

2

examine the provision in view of a very fair stand

taken by learned ASG.

32.The Judges of this Court have taken an oath to

uphold and preserve the Constitution and it is well

known that this Court has to protect the

Constitution as a sentinel on the qui vive against

any abridgement of its principles and percepts.

33.It may be noted that Section 27(3) as it stands as

on date was considered by this Court in several

judgments. Those judgments are noted hereinbelow.

34.It was considered in the case of Subhash Ramkumar

Bind Alias Vakil and another vs. State of

Maharashtra reported in (2003) 1 SCC 506. In that

case the appellant Bind was charged under Section

302/34 and also under Section 27(3) of the Act and

death sentence was awarded to Bind by the Sessions

Court and the same was affirmed by the High Court.

2

This Court while reducing the death sentence awarded

by the High Court to one of life did not pronounce

on the constitutional validity of Section 27(3) even

though this Court referred to the statement of

Objects and Reasons of the Amending Act which

introduced Section 27(3). This Court found that the

arms in question could not be brought within the

definition of ‘prohibited arms’ as defined under

Section 2(i) of the Act. This Court held that in

order to bring the arms in question within the

prohibited arms, the requirement of the statute was

to issue a formal notification in the Official

Gazette but as the State was relying on an

administrative notification, this Court held that

the same cannot be treated as a gazette notification

and the conviction of Bind under Section 27(3) of

the Act was set aside. This Court did not pronounce

either way on the constitutional validity of Section

27(3). Therefore, the decision in Bind (supra) is

not an authority on the constitutional validity of

Section 27(3) of the Act.

2

35.Section 23 was again considered by this Court in the

case of Surendra Singh Rautela vs. State of Bihar

(now State of Jharkhand) - (2002) 1 SCC 266. The

appellant Surendra Singh Rautela was initially

convicted under Section 27(3) of the Arms Act and

was given death penalty. Thereafter, the same

sentence was set aside by the High Court on merits.

36.In Surendra Singh (supra), before this Court learned

senior counsel appearing on behalf of the State very

fairly stated that he was not in a position to

challenge the order of acquittal of the appellant

under Section 27(3) on merits. Therefore, the

question of constitutional validity of Section 27(3)

was neither canvassed nor examined before this

Court.

37.The question of constitutional validity of Section

27(3) of the Arms Act was referred to Full Bench of

Punjab and Haryana High Court in the case of State

2

of Punjab vs. Swaran Singh - Murder Reference No. 5

of 2000 decided on 26.5.2009.

38.The matter went before the Full Bench as the

Division Bench of the High Court of Punjab and

Haryana expressed doubt about the correctness of the

decision rendered by the Division Bench in Santokh

Singh vs. State of Punjab, 2000(3) Recent Criminal

Reports 637.

39.The following questions were raised:

(i)Whether the judgment of Division Bench is

correct in law?

(ii)Whether section 27(3) of the Arms Act is

unconstitutional being violative of

Article 14 and 21 of the Constitution of

India?

40.The Court found that a 303 rifle has not been

notified as a prohibited arm by the Central

Government. The Court dealt with the provisions of

Rule 3 and Schedule I to the said Rules categorising

2

arms and ammunition for the purpose of Rule 3 under

the said Act.

41.On such consideration, the Full Bench, on a careful

reading of Rules 3 and 4 and two Schedules, came to

a conclusion that in the absence of a notification

by the Government declaring 303 rifle as a

prohibited arm, the said weapon cannot be treated as

the one prohibited under the Act and accordingly

affirmed the view taken in the case of Santokh Singh

(supra). However, the Full Bench did not answer the

question No.2 in the light of the law declared in

Mithu (supra). Therefore the constitutional validity

of Section 27(3) has not been decided by the Full

Bench.

42.The question of constitutional validity of mandatory

death sentence was examined by this court in Mithu

(supra). In that case the constitutional validity of

2

Section 303 of IPC came up for consideration.

Provision of Section 303 of IPC is set out below:

“303. Punishment for murder by life-

convict.- Whoever, being under sentence of

imprisonment for life, commits murder

shall be punished with death.”

43.Chief Justice Y.V. Chandrachud giving the majority

opinion held that the sentence of death, prescribed

by Section 303 of IPC for the offence of murder

committed by a person who is under a sentence of

life imprisonment is a savage sentence and this

Court held that the same is arbitrary and oppressive

being violative of Articles 21 and 14 of the

Constitution. Relevant para 23 at page 296 of the

report is set out below:

“23. On a consideration of the various

circumstances which we have mentioned in

this judgment, we are of the opinion that

Section 303 of the 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

2

originally conceived to discourage

assaults by life convicts on the prison

staff, but the legislature chose language

which far exceeded its intention. The

Section also assumes that life convicts

are a dangerous breed of humanity as a

class. That assumption is not supported by

any scientific data. As observed by the

Royal Commission in its Report on “Capital

Punishment”:

“There is a popular belief that

prisoners serving a life sentence

after conviction of murder form a

specially troublesome and

dangerous class. That is not so.

Most find themselves in prison

because they have yielded to

temptation under the pressure of a

combination of circumstances

unlikely to recur.”

In Dilip Kumar Sharma v. State of M.P.,

this Court was not concerned with the

question of the vires of Section 303, but

Sarkaria, J., in his concurring judgment,

described the vast sweep of that Section

by saying that “the section is Draconian

in severity, relentless and inexorable in

operation” [SCC para 22, p. 567: SCC (Cri)

p. 92]. We strike down Section 303 of the

Penal Code as unconstitutional and declare

it void. It is needless to add that all

cases of murder will now fall under

Section 302 of the Penal Code and there

shall be no mandatory sentence of death

for the offence of murder.”

3

44.In the said judgment, Chief Justice Y.V.

Chandrachud, who was delivering the majority

judgment observed that the court has to exercise its

discretion in the matter of life and death. In the

opinion of the learned Chief Justice any sentencing

process by which the legislature deprives the courts

of their legitimate jurisdiction to exercise their

discretion not to impose the death sentence in

appropriate cases, and compels them to shut their

eyes to mitigating circumstances is unconscionable.

The relevant observations made in paragraphs 12 and

16 are set out below

“12. 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,

3

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, now does the fact that

the accused was under a sentence of life

imprisonment when he committed the murder,

justify the law that he must be sentenced

to death? In ordinary life, we will not say

it about law, it is not reasonable to add

insult to injury. But, apart from that, a

provision of law which deprives the Court

of the use of its wise and beneficent

discretion in a matter of life and death,

without regard to the circumstances in

which the offence was committed and,

therefore, without regard to the gravity of

the offence, cannot but be regarded as

harsh, unjust and unfair. It has to be

remembered that the measure of punishment

for an offence is not afforded by the label

which that offence bears, as for example

‘theft’, ‘breach of trust’ or ‘murder’. The

gravity of the offence furnishes the

guideline for punishment and one cannot

determine how grave the offence is without

having regard to the circumstances in which

it was committed, its motivation and its

repercussions. The legislature cannot make

relevant circumstances irrelevant, deprive

the courts of their legitimate jurisdiction

to exercise their discretion not to impose

the death sentence in appropriate cases,

compel them to shut their eyes to

mitigating circumstances and inflict upon

them the dubious and unconscionable duty of

imposing a preordained sentence of death.

Equity and good conscience are the

hallmarks of justice. The mandatory

sentence of death prescribed by Section

303, with no discretion left to the court

3

to have regard to the circumstances which

led to the commission of the crime, is a

relic of ancient history. In the times in

which we live, that is the lawless law of

military regimes. We, the people of India,

are pledged to a different set of values.

For us, law ceases to have respect and

relevance when it compels the dispensers of

justice to deliver blind verdicts by

decreeing that no matter what the

circumstances of the crime, the criminal

shall be hanged by the neck until he is

dead.

16. Thus, there is no justification for

prescribing a mandatory sentence of death

for the offence of murder committed inside

or outside the prison by a person who is

under the sentence of life imprisonment. A

standardized mandatory sentence, and that

too in the form of a sentence of death,

fails to take into account the facts and

circumstances of each particular case. It

is those facts and circumstances which

constitute a safe guideline for

determining the question of sentence in

each individual case. “The infinite

variety of cases and facets to each would

make general standards either meaningless

‘boiler plate’ or a statement of the

obvious…….” As observed by Palekar, J.,

who spoke for a Constitution Bench in

Jagmohan Singh v. State of U.P.: [SCC para

26, p. 35: SCC (Cri) p. 184]

“The impossibility of laying down

standards is at the very core of the

criminal law as administered in India

which invests the judges with a very

wide discretion in the matter of

fixing the degree of punishment....

The exercise of judicial discretion on

well-recognised principles is, in the

3

final analysis, the safest possible

safeguard for the accused.”

45.In his concurring judgment Justice O. Chinnappa

Reddy held as follows:

“25. Judged in the light shed by Maneka

Gandhi and Bachan Singh, it is impossible

to uphold Section 303 as valid. Section 303

excludes judicial discretion. The scales of

justice are removed from the hands of the

Judge so soon as he pronounces the accused

guilty of the offence. So final, so

irrevocable and so irrestitutable [ sic

irresuscitable] is the sentence of death

that no law which provides for it without

involvement of the judicial mind can be

said to be fair, just and reasonable. Such

a law must necessarily be stigmatised as

arbitrary and oppressive. Section 303 is

such a law and it must go the way of all

bad laws. I agree with my Lord Chief

Justice that Section 303, Indian Penal

Code, must be struck down as

unconstitutional.”

46.It is now well settled that in view of decision in

Maneka Gandhi vs. Union of India – (1978) 1 SCC 248,

Bachan Singh Vs. State of Punjab – (1980) 2 SCC 684

and Mithu (supra) ‘due process of law’ is part of

our Constitutional jurisprudence.

3

47.The Constitution Bench in Sunil Batra vs. Delhi

Administration and Others – (1978) 4 SCC 494, has

also held that the guarantee against cruel and harsh

punishment given in the Eighth Amendment of the U.S.

Constitution is also part of our constitutional

guarantee. Once the concept of ‘due process of law’

and the guarantee against harsh and cruel punishment

(Eighth Amendment of the U.S. Constitution) are

woven in our Constitutional guarantee, it is the

duty of this Court to uphold the same whenever any

statute even prima-facie seeks to invade the same.

This also seems to be the mandate of Article 13(2)

of the Constitution of India.

48.Mr. Banerjee, learned ASG has rendered

considerable assistance to this Court by placing

before the Court judgments from different

jurisdiction on the question of mandatory capital

punishment and also decisions where Court examined

cases of cruel and unusually harsh punishment.

3

49.In this connection we may refer to the judgment of

the U.S. Supreme Court in the case of James Tyrone

Woodson and Luby Waxton vs. State of North Carolina ,

428 US 280 = 49 L Ed 2d 944. In that case the

petitioners were convicted of first degree murder in

view of their participation in an armed robbery of a

food store. In the course of committing the crime a

cashier was killed and a customer was severely

wounded. The petitioners were found guilty of the

charges and sentenced to death. The Supreme Court of

North Carolina affirmed the same. But then

certiorari was granted by the U.S. Supreme Court to

examine the question whether imposition of death

penalty in that case constituted a violation of the

Eighth and Fourteenth Amendments of the U.S.

Constitution. The factual background of that case

is that in 1974 North Carolina General Assembly

codified a statute making death the mandatory

sentence for all persons convicted of first degree

murder. Stewart, J., speaking for the Court held

that the said mandatory death sentence was

3

unconstitutional and violated the Eighth Amendment.

The learned Judge held:-

“…A process that accords no significance to

relevant facets of the character and record

of the individual offender or the

circumstances of the particular offense

excludes from consideration in fixing the

ultimate punishment of death the

possibility of compassionate or mitigating

frailties of humankind. It treats all

persons convicted of a designated offense

not as uniquely individual human beings,

but as members of a faceless,

undifferentiated mass to be subjected to

the blind infliction of the penalty of

death.

.... This Court has previously recognized

that “for the determination of sentences,

justice generally requires consideration of

more than the particular acts by which the

crime was committed and that there be taken

into account the circumstances of the

offense together with the character and

propensities of the offender." ....

Consideration of both the offender and the

offense in order to arrive at a just and

appropriate sentence has been viewed as a

progressive and humanizing

development. ...While the prevailing

practice of individualizing sentencing

determinations generally reflects simply

enlightened policy rather than a

constitutional imperative, we believe that

in capital cases the fundamental respect

for humanity underlying the Eighth

Amendment, see Trop v Dulles, 356 US, at

100, 2 L Ed 2d 630, 78 S Ct 590 (plurality

opinion), requires consideration of the

character and record of the individual

offender and the circumstances of the

particular offense as a constitutionally

indispensable part of the process of

inflicting the penalty of death. ... This

conclusion rests squarely on the predicate

that the penalty of death is qualitatively

different from a sentence of imprisonment,

however long. Death, in its finality,

differs more from life imprisonment than a

100-year prison term differs from one of

only a year or two. Because of that

3

qualitative difference, there is a

corresponding difference in the need for

reliability in the determination that death

is the appropriate punishment in a specific

case.”

50.However, strong dissent was expressed by Justice

White, Chief Justice Burger and Justice Rehnquist.

According to these learned Judges, North Carolina

statute providing for mandatory death penalty upon

proof of guilt in a case of first degree murder was

constitutionally valid.

51.A similar conclusion was pronounced on the same day

i.e. 2

nd

July, 1976 in Stanislaus Roberts vs. State

of Louisiana, 428 US 325 = 49 L Ed 2d 974 in a case

of death penalty for a crime of first degree murder

under the laws of Louisiana. Justice John Paul

Stevens giving the majority opinion observed at

pages 981-982 of the report as follows:-

“…The history of mandatory death penalty

statutes indicates a firm societal view

that limiting the scope of capital murder

is an inadequate response to the harshness

and inflexibility of a mandatory death

3

sentence statute. ... A large group of

jurisdictions first responded to the

unacceptable severity of the common-law

rule of automatic death sentences for all

murder convictions by narrowing the

definition of capital homicide. Each of

these jurisdictions found that approach

insufficient and subsequently substituted

discretionary sentencing for mandatory

death sentences. See Woodson v North

Carolina, ante, at 290-292, 49 L Ed 2d 944,

96 S Ct 2978.”

“The futility of attempting to solve the

problems of mandatory death penalty

statutes by narrowing the scope of the

capital offense stems from our society's

rejection of the belief that "every offense

in a like legal category calls for an

identical punishment without regard to the

past life and habits of a particular

offender”. Williams v New York, 337 US 241,

247, 93 L Ed 1337, 69 S Ct 1079 (1949). See

also Pennsylvania v Ashe, 302 US 51, 55, 82

L Ed 43, 58 S Ct 59 (1937).”

“The constitutional vice of mandatory death

sentence statutes - lack of focus on the

circumstances of the particular offense and

the character and propensities of the

offender - is not resolved by Louisiana's

limitation of first-degree murder to

various categories of killings. The

diversity of circumstances presented in

cases falling within the single category of

killings during the commission of a

specified felony, as well as the variety of

possible offenders involved in such crimes,

underscores the rigidity of Louisiana's

enactment and its similarity to the North

Carolina statute. Even the other more

narrowly drawn categories of first-degree

murder in the Louisiana law afford no

meaningful opportunity for consideration of

mitigating factors presented by the

circumstances the particular crime or by

the attributes of the individual offender.”

52.Here also Chief Justice Burger, White J.,

Balckmum, J., and Rehnquist, J., dissented and

3

upheld the constitutionality of the Louisiana

statute.

53.In Harry Roberts vs. State of Louisiana , 431 US 633

= 52 L Ed 2d 637, the case arose out of a Louisiana

statute imposing mandatory death penalty for the

first degree murder of a police officer. The Court

opined:-

“To be sure, the fact that the murder

victim was a peace officer performing his

regular duties may be regarded as an

aggravating circumstance. There is a

special interest in affording protection to

these public servants who regularly must

risk their lives in order to guard the

safety of other persons and property. But

it is incorrect to suppose that no

mitigating circumstances can exist when the

victim is a police officer. Circumstances

such as the youth of the offender, the

absence of any prior conviction, the

influence of drugs, alcohol, or extreme

emotional disturbance, and even the

existence of circumstances which the

offender reasonably believed provided a

moral justification for his conduct are all

examples of mitigating facts which might

attend the killing of a peace officer and

which are considered relevant in other

jurisdictions.

As we emphasized repeatedly in Roberts and

its companion cases decided last Term, it

is essential that the capital sentencing

decision allow for consideration of

whatever mitigating circumstances may be

relevant to either the particular offender

4

or the particular offense. Because the

Louisiana statute does not allow for

consideration of particularized mitigating

factors, it is unconstitutional.”

54.Accordingly, death penalty was set aside by the

majority and the matter was remitted for further

proceeding. Here also Chief Justice Burger, Justice

Blackmum, Justice White and Justice Rehnquist gave

strong dissents, opining that the statute was

constitutionally valid.

55.Again similar question came up before the U.S.

Supreme Court in George Summer vs. Raymond Wallace

Shuman, 483 US 66 = 97 L Ed 2d 56. This case came

from Nevada which mandated death penalty for murder

committed by a person while serving a life sentence

without the possibility of parole. The statutory

provision considered in this case is somewhat akin

to Section 303 of Indian Penal Code. Justice

Blackmum delivering the majority opinion held that

Nevada statute was unconstitutional being violative

4

of Eighth and Fourteenth Amendments. The learned

Judge held:-

“……This Court has recognized time and again

that the level of criminal responsibility

of a person convicted of murder may vary

according to the extent of that

individual's participation in the crime.

See, e.g., Tison v Arizona, 481 US 137, 95

L Ed 2d 127,107 S Ct 1676 (1987); Enmund

Florida, 458 US 782, 73 L Ed 2d 1140, 102 S

Ct 3368 (1982). Just as the level of an

offender's involvement in a routine crime

varies, so too can the level of involvement

of an inmate in a violent prison incident.

An inmate's participation may be sufficient

to support a murder conviction, but in some

cases it may not be sufficient to render

death an appropriate sentence, even though

it is a life-term inmate or an inmate

serving a particular number of years who is

involved.

……The circumstances surrounding any past

offense may vary widely as well. Without

consideration of the nature of the

predicate life-term offense and the

circumstances surrounding the commission of

that offense, the label "life-term inmate"

reveals little about the inmate's record or

character. Even if the offense was first-

degree murder, whether the defendant was

the primary force in that incident, or a no

triggerman like Shuman, may be relevant to

both his criminal record and his character.

Yet under the mandatory statute, all

predicate life-term offenses are given the

same weight - a weight that is deemed to

outweigh any possible combination of

mitigating circumstances."

56.The Court insisted on a guided discretion on the

statute by holding:-

4

“…state interests can be satisfied fully

through the use of a guided-discretion

statute that ensures adherence to

constitutional mandate of heightened

reliability in death-penalty determinations

through individualized sentencing

procedures. Having reached unanimity on the

constitutional significance of

individualized sentencing in capital cases,

we decline to depart from that mandate in

this case today. We agree with the courts

below that the statute under which

respondent Shuman was sentenced to death

did not comport with the Eighth and

Fourteenth Amendments.”

57.This judgment was also dissented by Justice White,

Chief Justice Rehnquist and Justice Scalia.

58.In this connection if we look at some of the

judgments delivered by the Privy Council we would

find the same principle has been followed in Reyes

vs. The Queen, (2002) 2 AC 235 = (2002) UKPC 11. In

Reyes (supra) the appellant was convicted and

sentenced to death under the laws of Belize he

committed the murder by shooting. The Privy Council

granted leave to the accused to raise two issues on

constitutional points – (i) mandatory death penalty

infringes both the protection against subjection to

4

inhuman or degrading punishment or other treatment

in violation of rights under Section 7 of the

Constitution of Belize and also in violation of the

right to life protected under Sections 3 and 4 of

the said Constitution. The second issue was on the

constitutionality of hanging. Section 4(1) and

Section 7 of the Constitution of Belize are as

follows:-

“4(1). A person shall not be deprived of

his life intentionally save in execution of

the sentence of a court in respect of a

criminal offence under any law of which he

has been convicted.”

“7. No person shall be subjected to torture

or to inhuman or degrading punishment or

other treatment.”

59.In the case of Reyes (supra) the decision of this

Court in Mithu (para 36 page 252 of the report) as

also the decision of this Court in Bachan Singh

(para 43, page 256 of the report) were considered.

The Board observed:-

“…The Board is however satisfied that the

provision requiring sentence of death to be

4

passed on the defendant on his conviction

of murder by shooting subjected him to

inhuman or degrading punishment or other

treatment incompatible with his right under

section 7 of the Constitution in that it

required sentence of death to be passed and

precluded any judicial consideration of the

humanity of condemning him to death. The

use of firearms by dangerous and aggressive

criminals is an undoubted social evil and,

so long as the death penalty is retained,

there may well be murders by shooting which

justify the ultimate penalty. But there

will also be murders of quite a different

character (for instance, murders arising

from sudden quarrels within a family, or

between neighbours, involving the use of a

firearm legitimately owned for no criminal

or aggressive purpose) in which the death

penalty would be plainly excessive and

disproportionate. In a crime of this kind

there may well be matters relating both to

the offence and the offender which ought

properly to be considered before sentence

is passed. To deny the offender the

opportunity, before sentence is passed, to

seek to persuade the court that in all the

circumstances to condemn him to death would

be disproportionate and inappropriate is to

treat him as no human being should be

treated and thus to deny his basic

humanity, the core of the right which

section 7 exists to protect…”

60.In paragraph 44 at page 257 of the report the

Board made a very valid and very interesting

distinction between mercy and justice, which is set

out below:-

“……Mercy, in its first meaning given by the

Oxford English Dictionary, means

forbearance and compassion shown by one

person to another who is in his power and

who has no claim to receive kindness. Both

in language and literature mercy and

justice are contrasted. The administration

4

of justice involves the determination of

what punishment a transgressor deserves,

the fixing of the appropriate sentence for

the crime. The grant of mercy involves the

determination that a transgressor need not

suffer the punishment he deserves, that the

appropriate sentence may for some reason be

remitted. The former is a judicial, the

latter an executive, responsibility……. It

has been repeatedly held that not only

determination of guilt but also

determination of the appropriate measure of

punishment are judicial not executive

functions. .... The opportunity to seek

mercy from a body such as the Advisory

Council cannot cure a constitutional defect

in the sentencing process.”

61.The Privy Council thus overruled the decision of

the Court of Appeal of Belize.

62.In Regina v. Hughes, (2002) 2 AC 259 = (2002) UKPC

12, the defendant (accused) was convicted by the

High Court of Saint Lucia for murder. The Criminal

Code of Saint Lucia provided death sentence to be

imposed on anybody who is convicted of murder and

Hughes was sentenced to death. The Board found that

under Section 178 of the Criminal Code, imposition

of death sentence for murder was mandatory and the

Court had no power to impose a lesser sentence. The

Board held such inhuman and degrading sentencing

4

procedure to be void. In this case also this

Court’s decision in Mithu (supra) and Bachan Singh

(supra) were considered by the Privy Council. In

paragraph 52, the Board held:-

“……It follows that the decision as to the

appropriate penalty to impose in the case

of murder should be taken by the judge

after hearing submissions and, where

appropriate, evidence on the matter. In

reaching and articulating such decisions,

the judges will enunciate the relevant

factors to be considered and the weight to

be given to them, having regard to the

situation in Saint Lucia. The burden thus

laid on the shoulders of the judiciary is

undoubtedly heavy but it is one that has

been carried by judges in other systems.

Their Lordships are confident that the

judges of Saint Lucia will discharge this

new responsibility with all due care and

skill.”

63.Therefore, the constitutionality of Section 178 of

the statute was not affirmed and instead matter was

left to the discretion of the judges.

64.The question again came up before the Privy Council

in the case of Fox vs. The Queen (2002 (2) AC 284).

4

65.In that case the defendant was convicted by the High

Court of Saint Chrisopher and Nevis on two counts of

murder and he was sentenced to death on each count

pursuant to Section 2 of the Offences against the

Person Act, 1873, which prescribed a mandatory death

sentence for murder. His appeal against conviction

and sentence was dismissed by the Eastern Caribbean

Court of Appeal (Saint Christopher and Nevis). Then

the Judicial Committee of the Privy Council granted

him special leave to appeal against both conviction

and sentence. Ultimately appeal was dismissed

against conviction, but on the question of sentence

the Privy Council held that Section 2 of the

offences against the Person Act, 1873 was

inconsistent with section 7 of the Constitution and

accordingly sentence of death was quashed and the

matter was remitted to the High Court to determine

the appropriate sentence having regard to all the

circumstances of the case and in the light of the

evidence relevant to the choice of sentences. In

doing so the Privy Council applied its ratio in the

4

case of Reyes (supra) and also the ratio in Regina

(supra).

66.The Privy Council again had to consider the same

question in Bowe & Anr. vs. The Queen -(2006) 1 WLR

1623. In that case also both he appellants were

convicted for murder and sentenced to death in terms

of the Section 312 of the Penal Code of The Bahamas

and their appeals against conviction did not

succeed.

67.Section 312 of the Code was challenged to the

extent that it provides that persons other than

pregnant women charged for murder under Section 312

of the Code must be punished by death sentence.

68.In that case the Court of Appeal held by a

majority that any challenge to the constitutionality

of the Code providing for mandatory sentence must be

made to the Supreme Court.

4

69.Allowing the appeal, the Privy Council held that

the Court of appeal erred in construing Article 28

of the Constitution as precluding it from

entertaining a challenge to the constitutionality of

a sentencing provision.

70.In paragraph 29 of the judgment, the Privy Council

formulated the principles which are relevant for

consideration in a case of mandatory death sentence.

The said principles are set out below:

(I)It is a fundamental principle of just

sentencing that the punishment imposed on

a convicted defendant should be

proportionate to the gravity of the crime

of which he has been convicted.

(II)The criminal culpability of those

convicted of murder varies very

widely.

(III)Not all those convicted of murder

deserve to die.

(IV)Principles (I), (II) and (III) are

recognised in the law or practice of

all, or almost all, states which impose

the capital penalty for murder.

5

(V)Under an entrenched and codified

Constitution on the Westminster model,

consistently with the rule of law, any

discretionary judgment on the measure

of punishment which a convicted defendant

should suffer must be made by the

judiciary and not by the executive.

71.The Privy Council answered the question in

paragraphs 30, 31, 32, 34 and 35 of the judgment.

72.In para 43 the conclusion of the Board was as

follows:

“The Board will accordingly advise Her

Majesty that section 312 should be

construed as imposing a discretionary and

not a mandatory sentence of death. So

construed, it was continued under the 1973

Constitution. These appeals should be

allowed, the death sentences quashed and

the cases remitted to the Supreme Court for

consideration of the appropriate sentences.

Should the Supreme court, on remission,

consider sentence of death to be merited in

either case, questions will arise on the

lawfulness of implementing such a sentence,

but they are not questions for the Board on

these appeals.”

5

73.In the unreported judgment of the Privy Council in

Bernard Coard and Others vs. The Attorney General

(Criminal Appeal No. 10/2006) the same principle has

been upheld. In that appeal from the Court of Appeal

of Grenada, the Judicial Committee of Privy Council

consisted of Lord Bingham of Cornhill, Lord

Hoffmann, Lord Phillips of Worth Matravers, Lord

Carswell and Lord Brown of Eaton-under-Heywood. The

facts were that in Grenada, a revolutionary outfit

was split into two factions, one of which was led by

the appellant Bernard Coard. In a violent incident

Maurice Bishop, the then Prime Minister of Grenada

and others were executed by Coard’s supporters. Over

that incident, the appellants were mandatorily

sentenced to death for murder. However the Governor

General commuted the death sentence to life

imprisonment, and a pardon was granted on the

condition that the appellants be kept in custody

with hard labour for the remainder of their lives.

The appellant challenged the sentence.

5

74.The Board, while rejecting the other contention by

the appellant, allowed the appeal on the ground that

the mandatory death sentence was unconstitutional.

The Board relied on its previous decision in Regina

(supra). In paragraph 32 of the judgment, the Board

inclined in favour of accepting the principle of

determination of a sentence by the judiciary rather

than accepting the statutory mandate of a death

sentence. The judgment by Lord Hoffmann laid down

the following principles:

“32. Fifthly, and perhaps most important,

is the highly unusual circumstance that,

for obvious reasons, the question of

appellants’ fate is so politically charged

that it is hardly reasonable to expect any

Government of Grenada, even 23 years after

the tragic events of October 1983, to take

an objective view of the matter. In their

Lordships opinion that makes it all the

more important that the determination of

the appropriate sentence for the

appellants, taking into account such

progress as they have made in prison,

should be the subject of a judicial

determination.”

5

75.Similar principles were followed in the High Court

of Malawi in the case of Francis Kafantayeni and

Others vs. Attorney General (Constitutional Case

No.12 of 2005 [2007] M.W.H.C.1). Facts therein were

that the accused was convicted of murder and

sentenced to mandatory death penalty. The challenge

to the constitutionality of death penalty was on

four grounds, all based on the Malawi Constitution.

The first ground related to depravation of right to

life under Section 16, the second related to inhuman

and degrading treatment under Section 19, the third

related to right to a fair trial under Section 42

(2) (f) and finally the fourth challenge was that it

violated principles of separation of powers of

State.

76.The Court, after analyzing the relevant provisions

of the Constitution and the Penal Code, and the

leading authority or Reyes (supra), struck down

mandatory death penalty holding that such penalty

was degrading and inhuman, and denied the right to a

5

fair trial. The Court expressed its opinion in the

following words:

“We agree with counsel that the effect of

the mandatory death sentence under section

210 of the Malawi Penal Code for the crime

of murder is to deny the accused as a

convicted person the right to have his or

her sentence reviewed by a higher court

than the court that imposed the sentence;

and we hold that this is a violation of

the right to a fair trial which in our

judgment extends to sentencing.”

77.In the concluding portion of the judgment, the

court, by exercising a degree of caution, observed

as follows:

“Pursuant to Section 5 of the

Constitution, we declare section 210 of

the Penal Code to be invalid to the extent

of the mandatory requirement of the death

sentence for the offence of murder. For

the removal of doubt, we state that our

declaration does not outlaw the death

penalty for the offence of murder, but

only the mandatory requirement of the

death penalty for that offence. The effect

of our decision is to bring judicial

discretion into sentencing for the offence

of murder, so that the offender shall be

liable to be sentenced to death only as

the maximum punishment.”

5

78.The Supreme Court of Uganda, at Mengo, struck a

similar note in the case of Attorney General vs.

Susan Kigula and 417 others (Constitution Appeal

No.03/2006). Out of the various issues urged before

the Court, one of them was, that the laws of Uganda,

which provide for mandatory death sentence were

unconstitutional and that the carrying out of a

death sentence after a long delay is a cruel,

inhuman and degrading treatment. Equally degrading

is the legal mode of carrying out a death sentence

by hanging. The majority of the judges by relying

upon Mithu (supra) and Reyes (supra), James Tyrone

Woodson (supra) held that imposition of mandatory

death sentence for certain offences was

unconstitutional. A most pertinent ruling has been

given in the following words:

“In our view if there is one situation

where the framers of the Constitution

expected an inquiry, it is the one

involving a death penalty. The report of

the Judge is considered so important that

it forms a basis for advising the

President on the exercise of the

prerogative of mercy. Why should it not

have informed the Judge in passing

sentence in the first place.”

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79.Furthermore, the administration of justice was

considered a function of the Judiciary under Article

126 of the Constitution. The entire process of trial

from the arraignment of an accused person to his/her

sentencing was what constitutes administration of

justice. By providing mandatory death penalty

Parliament removed the power to determine sentence

from the Court’s power and that, the Court is to be

inconsistent with Article 126 of the Constitution.

The Court further held:

“We do not agree with learned counsel for

the Attorney General that because

Parliament has the powers to pass laws for

the good governance of Uganda, it can pass

such laws as those providing for a

mandatory death sentence. In any case, the

Laws passed by Parliament must be

consistent with the Constitution as

provided for in article 2 (2) of the

Constitution.”

It also held:

“Furthermore, the Constitution provides

for the separation of powers between the

Executive, the Legislature and the

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Judiciary. Any law passed by Parliament

which has the effect of tying the hands of

the judiciary in executing its function to

administer justice is inconsistent with

the Constitution. We also agree with

Professor Sempebwa, for the respondents,

that the power given to the court under

article 22 (1) does not stop at

confirmation of conviction. The Court has

power to confirm both conviction and

sentence. This implies a power NOT to

confirm, implying that court has been

given discretion in the matter. Any law

that fetters that discretion is

inconsistent with this clear provision of

the Constitution.”

80.In a still more recent decision in the case of

Godfrey Ngotho Mutiso vs. Republic (Criminal Appeal

No.17/2008), the Kenyan Court of Appeal pronounced

its judgment in a criminal appeal arising from the

judgment of the High Court of Kenya. The three-judge

Bench delivering the verdict, considered the matter

as an issue of singular historical moment in the

country in dealing with the offence of murder and

penalty of death.

81.The Court formulated the following proposition:

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“In its judgment, the Court of Appeal

clarified the various issues,

particularly, the fact that the appellant

did not challenge the conviction for the

offence of murder nor the

constitutionality of the death penalty

itself. The Court then framed the issue

for determination and listed out the

various authorities relied upon by the

counsel. The submissions made by the

counsel for the appellants were summarized

by the Court as follows:

“The imposition of the mandatory

death penalty for particular offences

is neither authorized nor prohibited

in the Constitution. As the

Constitution is silent, it is for the

courts to give a valid constitutional

interpretation on the mandatory nature

of sentence.

Mandatory death sentence is

antithetical to fundamental human

rights and there is no constitutional

justification for it. A convicted

person ought to be given an

opportunity to show why the death

sentence should not be passed against

him.

The imposition of a mandatory

death sentence is arbitrary because

the offence of murder covers a broad

spectrum. Making the sentence

mandatory would therefore be an

affront to the human rights of the

accused.

Section 204 of the Penal Code is

unconstitutional and ought to be

declared a nullity. Alternatively the

word “shall” ought to be construed as

“may”.

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There is a denial to (sic of) a

fair hearing when no opportunity is

given to an accused person to offer

mitigating circumstances before

sentence, which is the normal

procedure in all other trials for non-

capital offences. Sentencing was part

of the trial and mitigation was an

element of fair trial.

Sentencing is a matter of law and

part of the administration of justice

which is the preserve of the

Judiciary. Parliament should therefore

only prescribe the maximum sentence

and leave the courts to administer

justice by sentencing the offenders

according to the gravity and

circumstances of the case.”

82. By formulating the aforesaid propositions, the

Court held that Section 204 of the Penal Code which

provided for mandatory death penalty was

unconstitutional.

83.However, a discordant note was struck by the Privy

Council in one of its old judgments in the case of

Ong Ah Chuan vs. Public Prosecutor and Another ,

(1981) A.C. 648. The judgment was rendered by Lord

Diplock, in a Bench consisting of Lord Diplock, Lord

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Keith of Kinkel, Lord Scarman and Lord Roskill. The

Board heard the appeal from the Court of Criminal

Appeal from Singapore, against a conviction for the

offence of drug trafficking of heroine in Singapore.

As the amount of heroine was more than 15 grams in

each case, a sentence of death was imposed on each

of the defendants. Even though, before the Court of

Appeal, the constitutionality of the provisions of

the Drug Act was not challenged, leave was sought

before the Board on those issues. Especially the

constitutional issue was that the provision in

Section 29 in Schedule II for mandatory death

penalty for trafficking in controlled drugs, in

excess of the prescribed quantities, was

unconstitutional.

84.The Board permitted the questions to be raised.

Ultimately, the Board came to the following

findings:

“The social object of the Drugs Act is to

prevent the growth of drug addition in

Singapore by stamping out the illicit drug

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trade and, in particular, the trade in

those most dangerously addictive drugs,

heroin and morphine. The social evil

caused by trafficking which the Drugs Act

seeks to prevent is broadly proportional

to the quantity of addictive drugs brought

on to the illicit market. There is nothing

unreasonable in the legislature’s holding

the view that an illicit dealer on the

wholesale scale who operates near the apex

of the distributive pyramid requires a

stronger deterrent to his transactions and

deserves more condign punishment than do

dealers on a smaller scale who operate

nearer the base of the pyramid. It is for

the legislature to determine in the light

of information that is available to it

about the structure of the illicit drug

trade in Singapore, and the way in which

it is carried on, where the appropriate

quantitative boundary lies between these

two classes of dealers. No plausible

reason has been advanced for suggesting

that fixing a boundary at transactions

which involve 15 grams of heroin or more

is so low as to be purely arbitrary.

The Court also held:

“Wherever a criminal law provides for a

mandatory sentence for an offence there is

a possibility that there may be

considerable variation in moral

blameworthiness, despite the similarity in

legal guilt of offenders upon whom the

same mandatory sentence must be passed. In

the case of murder, a crime that is often

committed in the heat of passion, the

likelihood of this is very real; it is

perhaps more theoretical than real in the

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case of large scale trafficking in drugs,

a crime of which the motive is cold

calculated with equal punitive treatment

for similar legal guilt.” (Page 674 of the

report)

85.In their Lordships’ view there is nothing

unconstitutional in the provision for a mandatory

death penalty for trafficking in significant

quantities of heroin and morphine. Their Lordships

held that the quantity that attracts death penalty

is so high as to rule out the notion that it is the

kind of crime that might be committed by a good

hearted Samaritan out of the kindness of his heart

as was suggested in the course of argument. But if

by any chance it were to happen, the prerogative of

mercy is available to mitigate the rigidity of the

law which the long established constitutional way of

doing is the same in Singapore as in England. (674

of the report)

86.However the aforesaid opinion of Lord Diplock, was

subsequently noticed by the Privy Council in Bowe

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(supra) at page 1644, wherein the decision in Ong Ah

Chuan (supra) was explained inter alia, on the

ground that the Constitution of Singapore does not

have a comparable provision like the Eighth

Amendment of the American Constitution relating to

cruel and unusual punishment.

87.It is clear from the discussion hereinabove that

mandatory death penalty has been found to be

constitutionally invalid in various jurisdictions

where there is an independent judiciary and the

rights of the citizens are protected in a

Constitution.

88.It has already been noted hereinabove that in our

Constitution the concept of ‘due process’ was

incorporated in view of the judgment of this Court

in Maneka Gandhi (supra). The principles of Eighth

Amendment have also been incorporated in our laws.

This has been acknowledged by the Constitution Bench

of this Court in Sunil Batra (supra). In para 52 at

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page 518 of the report, Justice Krishna Iyer

speaking for the Bench held as follows:

“52. True, our Constitution has no ‘due

process’ clause or the VIII Amendment;

but, in this branch of law, after Cooper

and Maneka Gandhi the consequence is the

same. For what is punitively outrageous,

scandalizingly unusual or cruel and

rehabilitatively counter-productive, is

unarguably unreasonable and arbitrary and

is shot down by Articles 14 and 19 and if

inflicted with procedural unfairness,

falls foul of Article 21.”

89.Almost on identical principles mandatory death

penalty provided under Section 303 of the Indian

Penal Code has been held ultra vires by the

Constitution Bench of this Court in Mithu (supra).

Apart from that it appears that in Section 27(3) of

the Act the provision of mandatory death penalty is

more unreasonable inasmuch it provides whoever uses

any prohibited arms or prohibited ammunition or acts

in contravention of Section 7 and if such use or act

results in the death of any other person then that

person guilty of such use or acting in contravention

of Section 7 shall be punishable with death. The

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word ‘use’ has not been defined in the Act.

Therefore, the word ‘use’ has to be viewed in its

common meaning. In view of such very wide meaning of

the word ‘use’ even an unintentional or an

accidental use resulting in death of any other

person shall subject the person so using to a death

penalty. Both the words ‘use’ and ‘result’ are very

wide. Such a law is neither just, reasonable nor is

it fair and falls out of the ‘due process’ test.

90.A law which is not consistent with notions of

fairness while it imposes an irreversible penalty

like death penalty is repugnant to the concept of

right and reason.

91.In Dr. Bonham case - (1610) 8 Co Rep 114a : 77ER

646, Lord Coke explained this concept several

centuries ago. The classical formulation by Lord

Coke is:-

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“It appears in our books, that in many

cases, the common law will control acts of

Parliament, and sometimes adjudge them to be

utterly void: for when an act of Parliament

is against common right and reason, or

repugnant, or impossible to be performed,

the common law will control it and adjudge

such act to be void.”

92.The principle of ‘due process’ is an emanation from

the Magna Carta doctrine. This was accepted in

American jurisprudence [See Munn vs. Illinois, 24 L

Ed. 77 : 94 US 113, 142 (1876)].

93.Again this was acknowledged in Planned Parenthood of

Southeastern Pennsylvania vs. Casey, 120 L ED 2d

674, wherein the American Supreme Court observed as

follows:

“The guarantees of due process, though

having their roots in Magna Carta’s ‘per

legem terrae’ and considered as procedural

safeguards ‘against executive usurpation

and tyranny,’ have in this country ‘become

bulwarks also against arbitrary

legislation’.”

94.All these concepts of ‘due process’ and the

concept of a just, fair and reasonable law has been

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read by this Court into the guarantee under Articles

14 and 21 of the Constitution. Therefore, the

provision of Section 27(3) of the Act is violative

of Article 14 and 21 of the Constitution.

95.Apart from that the said Section 27 (3) is a post

Constitutional law and has to obey the injunction of

Article 13 which is clear and explicit. Article

13(2) is as follows:

“13(2) The State shall not make any law

which takes away or abridges the rights

conferred by this Part and any law made in

contravention of this clause shall, to the

extent of the contravention, be void.”

96.In view of the aforesaid mandate of Article 13 of

the Constitution which is an Article within Part-III

of our Constitution, Section 27(3) having been

enacted in clear contravention of Part-III rights,

Section 27(3) of the Act is repugnant to Articles 14

and 21 and is void.

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97.Section 27(3) of the Act also deprives the

judiciary from discharging its Constitutional duties

of judicial review whereby it has the power of using

discretion in the sentencing procedure.

98.This power has been acknowledged in Section 302 of

the Indian Penal Code and in Bachan Singh (supra)

case it has been held that the sentencing power has

to be exercised in accordance with the statutory

sentencing structure under Section 235(2) and also

under Section 354(3) of the Code of Criminal

Procedure.

99.Section 27(3) of the said Act while purporting to

impose mandatory death penalty seeks to nullify

those salutary provisions in the Code. This is

contrary to the law laid down in Bachan Singh

(supra).

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100.In fact the challenge to the constitutional

validity of death penalty under Section 302 of

Indian Penal Code has been negatived in Bachan Singh

(supra) in view of the sentencing structure in

Sections 235(2) and 354 (3) of the Criminal

Procedure Code. By imposing mandatory death

penalty, Section 27(3) of the Act runs contrary to

those statutory safeguards which give judiciary the

discretion in the matter imposing death penalty.

Section 27(3) of the Act is thus ultra vires the

concept of judicial review which is one of the basic

features of our Constitution.

101.It has also been discussed hereinabove that the

ratio in both Bachan Singh (supra) and Mithu (supra)

has been universally acknowledged in several

jurisdictions across the world and has been accepted

as correct articulation of Article 21 guarantee.

Therefore, the ratio in Mithu (supra) and Bachan

Singh (supra) represents the concept of Jus cogens

meaning thereby the peremptory non derogable norm in

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international law for protection of life and

liberty.

102.That is why it has been provided by the 44th

Amendment Act of 1978 of the Constitution, that

Article 21 cannot be suspended even during

proclamation of emergency under Article 359(vide

Article 359(1)(a) of the Constitution.

103.This Court therefore holds that Section 27(3) of

the Arms Act is against the fundamental tenets of

our Constitutional law as developed by this Court.

104.This Court declares that Section 27(3) of Arms

Act, 1959 is ultra vires the Constitution and is

declared void. The appeal is thus dismissed on

merits and the High Court judgment acquitting the

respondent is affirmed.

.......................J.

(ASOK KUMAR GANGULY)

.......................J.

New Delhi (JAGDISH SINGH KHEHAR)

February 1, 2012

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