# MlfHU v. PIJNJAli

- **Citation:** [1983] 2 S.C.R. 690
- **Court:** Supreme Court of India
- **Decided:** 1983-04-07
- **Case number:** Criminal Appeal No. 745 of 1980
- **Bench:** V.Y. Chandrachud, S. Murtaza Fazal Ali, V.D. TuLZAPURKAR, 0. Ch!Nnappa Reddy, A. Varadarajan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mlfhu-v-pijnjali-8451
- **Pages:** 24

## Headnote

Indian Penal Code, 1860-s. 303-Constitution of India-Arts. 14 and 21Mandatory sentence of death for murder commilleed by Jife-con~·icts is violative
of rights guaranteed under Arts, 14 and 21-s. 303, l.P.C. is unconstitutional and
void
Section 303, I.P.C. provides that whoever, being under sentence of
imprison1nent for life, commits murder, sha II be punished with death
CounseJ for appeallants/petitioners
contend~d that s. 303, J.P.C. is
unconstitutional not only for the rea~on that it is unreasonable and arbitrary
but also because it authorises deprivation of life by an unju1t and unfair
procedure. Counsel for re pendents on the other hand contended that since
the validity of death sentence has bee-n upheld in Bachan Singh and since s. 303
does no more than prescribe death "Sentence for the offence of n1urder, the
ratio of Bacftan Singh should apply and the question as regards the validity of
s. 303, I.P.C. must be treated as having been concluded by that decision.
Upholding the contention of the appellants/petitioners,
HELD:
Per Chandrachud,
C.J. (Chinnappa Reddy, J Concurring)
Section 303, I.P.C. is unconstitutional and void.
It violates the guarantee of
equality contained in Art. 14 as also the right conferred by Art. 21 that no
perSon shall te deprived of his life or personal liberty except according to
procedure established by law. [712-A; 711-E]
(i) There is no rational justification for making a distinction in the matter
of punishn1ent between persons who commit murders whilst they are under the
sentence of life imprisonment and persons who commit murders whilst they are
not under the sentence of life imprisonment. Further, no r3tional distinction
can be n1ade in the matter of sentencing between a person who commits
murder after serving cut the sentence of life imprisonment and a persori who
co;nmits murder while he is still under that sentence. A person. who stands
unreformed after a long term of incarceration is not, by any logic, entitled to
perferential treatment as compared with a person who is still under the sentence
of life imprisonment. The classification based upon such a distinction proceeds
upon irrelevant considerations and bears no nexus with the object of the
statute, namely, the imposition of a mandatory sentence of death.
[70 C-D; 704 H; 705 B·Dl
...
,
MlfHU V. PIJNJAli
691
(ii) Murders are, by and large, committed for any one or more of a
variety of motives which operate on the mind of the offender, whether he is
under a sentence of life imprisonment or not. Such motives are too numerous
and varied to enumerate but hate, lust, sex, jealou~y. gain, revenge and a host
of weaknesses to which human flesh is subject, are comrr:on n1othes for the
· generality of murders. Those reasons can operate as a motive fc rce of the
crime whatever may be the situation in which tl-.e criminal is placed and
whatever may be the environment in which
1he finds himself. (702 D-F]
(iii) Even limiting oneself to murders committed bY life-convicts within
the four walls of the jail or while they are on parole or on lail, it is difficult to
hold that the prescription of tl-.e 1nandatory sentence of death answers the test
of reasonableness. Thr circumstance that a person is undergoing a ~entence of
life in1prisonment does not minimise the importance of 1nitigating factors which
are relevant on the question of sentt'nce· which s.hou1d be in1pos~d for the
offence committed by him v.hile he is under the sentence of life imprisonment.
Indeed, a crin1e com1nitted by a convict witJ1in the jail while he is under the
sentence of life imprisonment may, in certain circumstances, demand and
deserve greater consideration, understanding and sympathy than the original
offence for which he was sentenced to life imprisonment. {703 F·G; 702·H;
703 A-Bl
(iv) Convicts who are sentenced to long terms of imprisonment like the -
sentence of life imprisonment are subject to extraordinary stresses and strains
and they should not be discriminated agains

## Text

_Characters 0–39,667 of 62,754. This is a partial read: ask again with offset=39667 for what follows._

A
B
D
E
F
G
H
690
MITHU, ETC., ETC.,
STATE OF PUNJAB ETC. ETC.
April 7, 1983.
[V.Y. CHANDRACHUD, C.J., S. MURTAZA FAZAL ALI,
V.D. TuLZAPURKAR, 0. CH!NNAPPA REDDY AND A. VARADARAJAN, JJ.)
Indian Penal Code, 1860-s. 303-Constitution of India-Arts. 14 and 21Mandatory sentence of death for murder commilleed by Jife-con~·icts is violative
of rights guaranteed under Arts, 14 and 21-s. 303, l.P.C. is unconstitutional and
void
Section 303, I.P.C. provides that whoever, being under sentence of
imprison1nent for life, commits murder, sha II be punished with death
CounseJ for appeallants/petitioners
contend~d that s. 303, J.P.C. is
unconstitutional not only for the rea~on that it is unreasonable and arbitrary
but also because it authorises deprivation of life by an unju1t and unfair
procedure. Counsel for re pendents on the other hand contended that since
the validity of death sentence has bee-n upheld in Bachan Singh and since s. 303
does no more than prescribe death "Sentence for the offence of n1urder, the
ratio of Bacftan Singh should apply and the question as regards the validity of
s. 303, I.P.C. must be treated as having been concluded by that decision.
Upholding the contention of the appellants/petitioners,
HELD:
Per Chandrachud,
C.J. (Chinnappa Reddy, J Concurring)
Section 303, I.P.C. is unconstitutional and void.
It violates the guarantee of
equality contained in Art. 14 as also the right conferred by Art. 21 that no
perSon shall te deprived of his life or personal liberty except according to
procedure established by law. [712-A; 711-E]
(i) There is no rational justification for making a distinction in the matter
of punishn1ent between persons who commit murders whilst they are under the
sentence of life imprisonment and persons who commit murders whilst they are
not under the sentence of life imprisonment. Further, no r3tional distinction
can be n1ade in the matter of sentencing between a person who commits
murder after serving cut the sentence of life imprisonment and a persori who
co;nmits murder while he is still under that sentence. A person. who stands
unreformed after a long term of incarceration is not, by any logic, entitled to
perferential treatment as compared with a person who is still under the sentence
of life imprisonment. The classification based upon such a distinction proceeds
upon irrelevant considerations and bears no nexus with the object of the
statute, namely, the imposition of a mandatory sentence of death.
[70 C-D; 704 H; 705 B·Dl
...
,
MlfHU V. PIJNJAli
691
(ii) Murders are, by and large, committed for any one or more of a
variety of motives which operate on the mind of the offender, whether he is
under a sentence of life imprisonment or not. Such motives are too numerous
and varied to enumerate but hate, lust, sex, jealou~y. gain, revenge and a host
of weaknesses to which human flesh is subject, are comrr:on n1othes for the
· generality of murders. Those reasons can operate as a motive fc rce of the
crime whatever may be the situation in which tl-.e criminal is placed and
whatever may be the environment in which
1he finds himself. (702 D-F]
(iii) Even limiting oneself to murders committed bY life-convicts within
the four walls of the jail or while they are on parole or on lail, it is difficult to
hold that the prescription of tl-.e 1nandatory sentence of death answers the test
of reasonableness. Thr circumstance that a person is undergoing a ~entence of
life in1prisonment does not minimise the importance of 1nitigating factors which
are relevant on the question of sentt'nce· which s.hou1d be in1pos~d for the
offence committed by him v.hile he is under the sentence of life imprisonment.
Indeed, a crin1e com1nitted by a convict witJ1in the jail while he is under the
sentence of life imprisonment may, in certain circumstances, demand and
deserve greater consideration, understanding and sympathy than the original
offence for which he was sentenced to life imprisonment. {703 F·G; 702·H;
703 A-Bl
(iv) Convicts who are sentenced to long terms of imprisonment like the -
sentence of life imprisonment are subject to extraordinary stresses and strains
and they should not be discriminated against as compared with others. There
is no justification for prescribing a mandatory sentence of death for the offence
of murder committed :nside or outside the prison by a person who is under
the sentence of life 1mprisonn1ent. Research &tudies conducted- abroad have
indicated that tl'.e frequency of 1nurders co1n1nitted by life-convicts while they
are on parole is not so high as to justify a harsher treatment being accorded
to them \vhen they are found guilty of having committed a murder while on
parole, as compared with other persons who are g0;ilty of murder. There is no
co1nparable statistical data in our country in regard to the behaviour of lifeconvicts who are released on parole or bail but there is·no reason to assume
that the incidence of nlurders con1mitted by such persons is unduly high .. Indeed,
if there is no scientific investigation on this ·point i_n our countrY, thefe is no
basis for treating such persons differently from others who con1mit murders.
[705 D-H; 706 A-H; 707 A-C]
(v) There are as many as 51 sections in the Penal Code \Vhich provide
A
B
c
D
E
F
for the sentence of life imprisonment. A person who is sentenced to ·life
imprisonmr:nt for any of these offences incurs the mandatory penalty of death
under s. 303, if he con1mits a murder while he is under 'the sentence of life
G
imprisonment. It i's impossible to see the rationale of this aspect of s. 303.
There might have been the semblance of some logic to explain, if not to sustain,
such a provision if murder was the only offence for which life imprisonment
was prescribed as a punishment. It could then be argued that the intention of
the legislatufe was to provide for enhanced sentence for the second offence of
murder. But, under the section as it stands, a person who is sentenced to life IJ
impr-isonn1ent for breach of trust or for sedition under s. 124-A or for
counterfeiting a coin under s. 232 or for forgery under s.467 \vill have to be
senter.ced to death if he commits a murder while he is under the sentence of life
A
B
c
F
R
SUPREME {)OUR T REPORTS
(19S3j 2 s.C.R.
imprisonment. There is nothing in common between such offences previously
comrvitted and the subsequent offence of murder. Indeed, ii defies all logic to
understand why such a provision was made and 'vhat social purpose can be
served by sentencing a forgerer to a compulsory punishment of death . for the
mere reason that he was unde1going the sentence of life imprisonment for
for~ery When he con1mitted the offence of murder. The motivation of the two ·
offences is different, the circumstances in which they are committed would be
different and indeed the two offences are basically of~ different genre. To
prescribe a mandatory sentence of death for the second of such offences for the
reason that the offender was under the sentence of life imprisonment for the
first of such offences is ·arbitrary beyond the bounds of all reason. [708 E-H;
709 A-q
'
(vi) A standardised mand'.itory sentence, and that too in the form of a
$entence of death~ fails to take into account the facts and circumstances of each
particular case. It is those facts and circumstances which constitute a safe
guideline fot. determining the question of sentence in each individual case. The
impoSsibility of laying down standards is at the very core of the criminal Jaw as
a.dministered in India which invests the judges with a very wide discretion in the
n1atter of fixing the degree of punishment. The exercise of judicial .discretion
on weU-recognised principles is, in the final analysis, the safest possible
safeguard for the accused. There is no reason why in the case of a person
whOse case falls under s. 303, factors like the age and sex of the offender. the
provocation received by th-! offender and the motive of the crime should be
excluded from consideration on the question of sentence. {707 D-H; 708-A]
Jagmohan Singh v. State of U.P. [1973] 2 S.C.R. 541, referred to.
(vii) Equity and good conscience are the hall-marks of justice. A
provision of law which deprives .the court of the use of its wise and beneficent
discretion in a n1atter of life and death, without regard to the circumstances in
which the offence was con1mitte and, therefore without regard to the gravity
of the offence, cannot but ,be regarded as harsh, unjust and unfair. The
. legislatUre cannot make relevant circumstances irrelevant, deprive the courts
of their legitimate jurisdiction to exercise their discretion not to impose the ·
death sentence in appropriate case:>, compel them to shut their eyes to mitigating
circumstances and inflict upon them the dubious and unconscionable duty of
imposing a pre-ordained ~entence of d~ath
[704 D-F]
(viii) It is because the deatn sentence has beent made mandatory by
s. 303 l.P.C. in regard to a particular class ·of p"ersons ·that, as a necessary
consequence, they a1e deprived of the opportunity under s. 235 (2), Cr. P\C. to
show cause why they should not be sentenced to death and the Court-is relieved
from its obligation under s. 354 (3), Cr. P.C. to state the special reasons for
imposing the sentence of death. The deprivation of these rights a~d safeguards
which is bound to result in injmtice is harsh, arbitrary and unjust.
[708 C-D}
(ix) After the decisions in Maneka Gandhi, Sunil Batra and Bachan
Singh it cannot be contended that it is for the kgislature to prescribe the
· procedure and for the courts to follow it or that it is for the legislature to
.'!".
)
MiTHU W, PVN1AB
·693
.provide the,, punishment and for the. courts to il)J.pose it. Tl;le courts are not
,bound an~-t" are indeed not_ free, to ai)ply ·a fanciful procedure by a blind
adherence to the letter of the law or to impoSe a savage sentence_. The -Jast
word ~n the question of justice and fairne:s. Coes not rest with the leghlature.
- Just- as reasonableness of restriction~. under els. (2) to (6) of Art. 19 is for the·
· courts to detennine, so is it for the courts to decide whether the·prOcedure
prescribed by a law for depriving a person Or his life or liberty is fair, just and
reaionable .. [698 G-H; 699 C-D]
/\faneka Gaiidhi v. Union of India, [1978] 2 S.C.R. 621 ; Suni/ Batra v.
De/hf Administration, [1979] 1 S.C\ R. 392 ; and Bachan Singh v. State of Punjab,
[1980] 2 S.C.C. 684, reforred to.
· (x) In Bachan Singh the majOrity concluded that s.302, 1.P .C. is valid for
three maia 1easons: Fintly, t.hat t.h,e death sentence provi4rd for bys. 302 is an
alternative to the sentence of life imprisonment ; sei::ondly, · that special reasons
have to be stated unqer s .. 354 (3), Cr. P.C. if the. normal. rulo,is deparkd from
and. the death senterce has to be·lmposed ; and,· thirdly; be..::ause the accused is
1 entitled under s. 235 (2), Cr. P.C. to be _h~ard on the qi.Iestion of sentence. The
ratio of Bachan Singh, therefore, iS that, death sentence is constitutional if it
is prescribed as ao ~1teq1ative .s~ntence for _the 9ffence of murder and if the
nortrJal sentence prescribed bylaw for murdei' is imprisonment for life. Since
there is a fundamental 9istinctioa _between t(.e provisiops of. s. 302- ands. 305,
I.P.C., the ratio of Bachan .Singh will'not go\ern the question as regards the
validity of:>.. 303: whereas s. 302, 1.P .. C.provides for the sentence of death as an
alternative £entence, the C'nly sentence which s. 303 l.P.C. prescribes is the
sentence of. death! and dnce s. 303 l.P.C. does not rrovide for an alternative
sentence, ss.354 (3) and 235(2), Cr. P.C. have- no application 'to cases arising
under that •ection.[700 D-H; 101 A-DJ
·
·
Bachan Singh v. State of Punjab [1980] 2 S.C.C. 684 explained ..
per Chinnappa RcdJy, J. (concurring) :
·A.
.B
c
E
Section 303, 1.P .C. is out of tun.e 'with the Philosophy of otir Con&titution.
F
It particularly offends Art. 21 and the new jurisprudence,whii:h has sprung
around since the Bank Nationa/.isatiun case. Maneka Gandhi carried Art. 21 to
nobler rights ... and made it the focal point round which must now revolve to
advaotage all claims to
~ights t_qw;hing .Ii(e and liberty. The procedure
prescribed by law has to be fair,ji.tst and reasonable, not fanciful, oppressive
or. arbitrary. _Bachan Singh sustain.ed the yalidity oJ s.302 beCi:\l\_Se the , Sentence
· of ·imprisonment for. life and not death was the normal PunishmeTI.t_ for murder, . 'G
and the sentence of death was an alternatiVe penalty to be tesorted tO in ihe
most exceptiOflal of cases and the diocretion. to impOse or riot tO "irilpo.se the
sentence of death ·was given to th~ Judge. Judicial discretion was what
prevented the· outlawing of the sentence of death even as an alternative i:enalty
~or inu-:der. Judged in ~h.e light of -Maneka Gandhi and Bachan Singh, it is
11~poss1ble to uphold s. 303 as valid. S_ection 303 e;..c1udes judicial discretion. · ff
'So final, so iJrevoCable ·and so irres-titutable iS the Eetlteric'C ·or deat~h that no
Jaw Which provides fQr it \l'ithout i1lvoJverr.~nt Of the ~\licial' mini!' CaA :be · saiq
io be fair, just and reasonable. [712 {:-H; 7.13 A•Gj
694
SUPREME COURT REPORTS
[1983] 2 s.c.R.
Bank Nationalisation Case, [1970] 3 S.C.R. 530; Maneka Gandhi v. Union
A
of_lndia, [1978] 2 S.C.R. 621; and Bachan SinKh v. State of Punjab, [1980]
2.S.C.C. 684, referred to.
CRIMINAL APPELLATE
JURISDICTION/ORIGINAL JURISDICTION :
r-
~J
Criminal Appeal No. 745 of 1980.
B
Appeal by Special leave from the Judgment and Order dated
the 21st December, 1979 of the Punjab & Haryana High Court in
Criminal Appeal No. 1107 of 1979 & Murder Reference No. IS
Of 1979.
c
D
WITH
Writ Petition (CRL) No. 529 of 1980
(Under Article 32 of the Constitution of India)
AND
Writ Petition (CRL) No. 368 of 1981
(Under Article 32 of the Constitution of India)
AND
Special Leave Petition (CRL.) No. 2744of1980
E
From the· Judgment and Order dated the 28th August, 1980 of
F
G
H
the Punjab & Haryana High Court in Criminal Appeal No. 317 of
1980 and Murder Reference No. 4of1980.
AND
Writ Petition No. 1365 of 1982
(Under Article 32 of the Constitution ofindia)
AND
Criminal Appeal No. 303 of 1982
Appeal by Special leave from the Judgment and Order dated
the 29th & 30th April, 1982 of the Bombay High Court in Criminal
Appeal No. 180 of 1982 & Confirmation Case No. 2/82.
AND
Criminal Appeal No. 502 of 1982
Appeal by Special leave from the Judgment and Order dated
the 4th March, 1982 of the Punjab & Haryana Hish Court in,
Criminal Appeal No. 711-0B of 1981.
>-
.
-.......
MITHU P. PUN1A8 (Chandrachud, CJ.)
695 •
The following Judgments were delivered·
CHANDRACHUD,
CJ
The
question
which
arises for
consideration in these proceedings is whether section 303 of the
Indian Penal Code infringes the guarantee contained iri Article 21
of the Constitution which provides that "No person shall be deprived
of his life or personal liberty except according to procedure establi-.
shed by law."
Section 300 of the Penal Code defines 'Murder', while section
302 reads thus :
"302. Punishment for
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 only section in the Penal Code which
prescribes the sentence of life imprisonment. Literally, it is one of
the fifty-one sections of that Code which prescribes that sentence.
The difference between those sections on one hand and section 302
on the other is that whereas, under thos_e sections life imprisonment
is the maximum penalty that can
be imposed, under section
302 life imprisonment is the minimum penalty which has to be
imposed. The only option open to a court which convicts a person
of murder is to impose either the sentence of life imprisonment or
the sentence of death. The normal sentence for murder is life
imprisonment. Section 354(3) of the Code of Crimmal Procedure,
1973 provides : .
"354(3) When the conviction is for an offence
punishable with death or, in the alternative, with imprisonment for a term of years, the judgment· shall state the
reasons for the sentence awarded, and, in the case of
sentence of death, the special reasons for such sentence."
A
B
.·c
D
E
F
While upholding the validity of the death sentence as a
punishment for murder, a Constitution Bench of this Court ruled in
G
Bachan Singh(') that death sentence can be imposed in a very
exceptional class of cases - "the rarest of rare cases";
The Indian Penal Code was passed in 1860. The framers of
that Code .achieved a measure of success in classifying offences H
(lJ (t9so1 2 sec 684.
B
c
696
sul>inra COURT REPORts
(1983) 2 S.C.R.
according to their subject-matter, defining them with preci~ion a]ld
in prescribing what, in the context of those times, was considered
to be commensurate punishment for those offences. One of the
problems which they had to de!ll with; was as to the punishment
which .should be prescribed 'for the offence of murd.er committed by
. a person who is under a sentence of life imprisonment. They solved
that problem by enacting section 303, which reads thus :
.
"303. Punishment for murder by life convict-Wltoever,
being under sentence of imprisonment for life, commits
murder, shall be punishe<i with death.~'
The reason, or at least one of the reasons, why the, discretion
of the Courr to impose a lesser sentence was taken away and the
· 'sentence of death was made mandatory jn cases which are covered
D : by section 303 seems to have been that if, even the sentence of life
imprisonment was not sufficient to act as a deterrent and the convict
was hardened enough to commit a murder while serving
that
. sentence, the only punishmenr w\lich he deserved was death. The
severity of this legislative judgment accorded with the deterrent and
- retributive theories of puuishment which then held sway. The
E
reformative theory .of puuishment attracted the attention of criminologists later in the day. How sternly the legislature looked at the
offence of murder committed by a life-convict can be gauged by the
fact that in the early history of the Code of Criminal Procedure,
unlike as at present, if a person undergoing the sentence of transF
portation for life was sentenced to transportation for another offence,
the latter sentence was to commence at the expiration of the sentence
of transportation to which he was previously sentenced, unless the
court pirected tliat the subsequent sentence of transportation was
to ruri concurrently with the previous sentence of transportation. It
was in 1955 that section 397 of the Criminal Procedure Code of 1898
G
was replaced by a new sectiim 397 by Amendment Act 26 of 1955.
Under the new sub-section (2\ of section 397 which came into force
· on J~nuary 1, 1956, if a person alr~ady. undergoing a sentence of
imprisonment for life was sentenced on a subsequent conviction to
.imprisonment for. life, the subsequent sel!tence had to run concurrentH . l ly · with the previous sentence .. Section 427(2) of rhe Criminal
Procedure Code of 1973 is to the same effect. The object of referring
to this aspect of the matter is to emphasise that when section 303
of \he Pen,al Code was originally enacted, the
le~is!ature did no\
\
MITJIU•v. PUNJ.(B (Chmtdrachud, CJ.)
consider that even successive sentences of tl'!!nsportation for life were
an adequate punishment for the offence of murder committed by a ·A
person who was under the sentence of life imprisonment.
While enacting section 303 in terms which create an absolute
liability, the framers of the Penal Code ignored several important
aspects of cases which attract the application of t~at section and of 1l
questions which are bound to arise under it. They seem to have had
only one kind of case in their mind and that is, the commission of
murder of a jail officia1 by a life-convict. It may be remembered that
in those days, jail officials were foreigners, mostly Englishmen, and,
alongside other provisions which were specially designed for the
members of the ruling class as, for example, the choice of jurors, · C
section 303 was enacted in order to prevent assaults by the indigenous breed upon the white officers. In its 42nd Report (1971), the
Law Commission oflndia has observed in paragraph 16.17 (page
239), that , "the primary object of making the death sentence mandatory for an offence under this section seems to be to give protectio.n ID
to the prison s~aff". We have no doubt that if a strictly penological
view was taken of the situation dealt with by section 30~, the framers
of the Code.would .have had a second thought on their decision to
make the death sentence mandatory, even without the aid of the
constitutional constraints which operate now.
But before we proceed t0 point out the infirmities from which
section 303 suffers, we must indicate the nature of the argument
which has been advanced on behalf of the petitioners in order to
assail the validity of that sect.ion. The sum and substance ·of the
·argument is that the provision contained in section 303 is who""
unreasonable and arbitrary and thereby, it violates Article 21 of 1J:
'F
Constitution which affords the guarantee that no person shall Qi;
deprived of his life or personal liberty except in accordance with the
procedure established by Law. Since the procedure by which section
303 authorises the deprivation of life is unfair and unjust, the section
is uncoi:stitutionaLfHhavin~ e_xamthined. this argument with care and . 'G
concern, we are o t e opm10n
at 1t must be accepted and section
303 of the Penal Code struck down.
· In Maneka Gandhi v. Union of India,(') it was held by a sevenJudge Bench that a statute. which merely prescribes some kind df ll
procedure for depriving a person of his life or personal liberty cannot
(!) [1978)2 SCR 62\ ..
<i98
SUPRllME COURT REPORTS
[1983] 2 s.c.R.
ever meet the requirements of Article 21 : · The procedure prescribed
. A by law has to be fair, just and reasonable, not fanciful, oppressive
or arbitrary. Bhagwati J. observed in that case that "Principally,
the· concept of reasonableness must be projected in the procedure
contemplated by Article 21, having regard to the impact of Article
14 on that article". In Sunil Batra v. Deihi Administratkm,(1) while
. B dealing with the question as to whi:fither a person awaiting death
sentence can be kept in solitary con nement, Krishna Iyer J, said
that though our Constitution did not have a "due process" clause as
in the American Constitution, the same consequence ensued after
the decisions in the Bank Nationalisation case(') and Maneka Gandhi
C
"For what is punitively outrageous, scandalizingly
unusual or cruel and rehabilitatively counter-productive,
is unarguably unreasonable and arbitrary and is shot
down by Articles 14 and 19 and if inflicted with procedur·
al unfairness, falls foul of Article 21."
• J> Desai J. observed in the same case that :
E
"The word 'Law' in the expression 'procedure
established by law' in Article 21 has been interpreted
to mean in Maneka Gandhi's case that the law must be
right, just and fair, and not arbitrary, fanciful or oppres·
sive. Otherwise it would be no procedure at all and the
requirement of Article 21 would not be satisfied. If it i•
arbitrary, it would be violative of Article 14."
In Bachan Singh which upheld the constitutional validity of the
.F death penalty, Sarkaria J., speaking for the majority, said that if
Article 21 is understood in accordance with the interpretation put
upon it in Maneka Gandhi, it will read to say that :
"No person shall be deprived of his life or personal
liberty except according to fair, just and reasonable
,G
procedure established by valid law." (page 730)
These decisions have expanded the scope of Article 21 in a
significant way and it is now too late in the day to contend that it
is for the Legislature to prescribe the procedure ·and for the Court
.:JI ,to follow it, that it is for the legislature to provide the punishment
(I) [1979] I SCR 392.
\2) [1970] 3 SCR 530,
-·
MITHU v. PUNJAB ( Chandrachud, CJ.)
699
and for the courts to impose it. Two instances, undoubtedly extreme,
may be taken by way of illustration for the purpose of showing how A
the courts are not bound, and are indeed not free, to apply a fanciful
procedure by a blind adherence to the letter of the Jaw or to impose
a savage sentence; A Jaw providing that an accused shall not be
allowed to lead evidence in self-defence will be hit by Articles 14
and 21. Similarly, if a Jaw were to provide that the offence of theti B
will be punishable with the penalty of the cutting of hands, the Jaw
will be bad as violating Article 21. A savage sentence is anathema
to the civilized jtffisprudence of Article 21. These are, of course,
extreme illustrations and we need have no fear that our legislatures
will ever pass such laws. But these examples serve to illustrate that
the last word on the question of justice and fairness does not rest C
with the legislature. Just as reasonableness of restrictions under
clauses (2) to (6) of Article 19 is for the courts to determine, so is
it for the courts to decide whether the procedure prescribed by a Jaw
for depriving a person of his life or liberty is fair, just and reason~
able. The question which then arises before us is whether the D
sentence of death, prescribed by s~tion 303 of the Penal Code for
the offence of murder committed by a person who is under a sentence
of life imprisonment, is arbitrary and oppressive so as to be violative
of the fundamental right conferred by Article 21.
Counsel for the respondents rely upon the decision in Bachan
Singh in support of their submission that the provision contained
in section 303 does not ~uffer from any constitutional infirmity. They
contend that the validity of death sentence was upheld in that case
and since, section 303 does no more than prescribe death sentence
E
for the offence of murder, the ratio of Bachan Singh would apply and F
the question as regards the .validity of that section must be treated
as concluded by that decision. These questions, it is said, should
not be allowed to raise their head over and over agajn. This argument
suffers from a two-fold defect. In the first place, it betrays a certain
amount of misunderstanding of what was decided in Bachan Singh
and secondly, it overlooks the essential distinction between the
provisions of section 302 and section 303. Academicians and text-
.book writers have the freedom. to discuss legal problems in the
abstract because, they do not have to decide any particular case. On
the other band, the decisions rendered by the court have to be under•
stood in the light of the legal provisions which came 'up for consideration therein and in the light of the facts, if facts were involved. The
111ajo~ity did not lay down any abstract proposition in Bachan Sin~h
--
-----!~·.,,.,,,.._
G
H
A
'SlJP)Uli,fl! 00Uicr REPORTS
[1983] 2 s.c.R.
that "Death sentence is constitutional", that is to say, that "It is
permissible under the Constitution to provide for the sentence qf
·death". To be exact, the question which arose for the consideration
·of the Court was not whether, under the Constitution, it is permissible to provide for the sentence of death. The precise question
which arose in that case was whether section 302 of the Penal Code
B ·which provides for the sentence of death as one of the two alternative ·
sentences is valid It may be recalled that section 302 provides for
the sentence of death as an alternative sentence which may be
imposed. The normal sentence for murder is life imprisonment; and
if the death sentence has to be imposed, the Court is under a legal
obligation under section' 354(3) of the Criminal Procedure Code to
state the special reasons for imposing that sentence. That explains
why, in Bachan Singh, Sarkaria J., who spoke for the majority,
un<lerscored the words "alternative" and "may" in paragraph 19 of
tl1e ju<lgment, whilst observing that the Penal Code prescribes death
E
·as an alternative punishment to which the offender may be sentenced
in cases relating to· seven kinds of offences. The majority concluded
that section 302 of the Penal Cod! is valid for three main reasons :
Firstly; that the death sentence provided for by section 302 is an
alternative to the sentence of life imprisonment, secondly, that special
reasons have to be stated if the normal rule is departed from and the
death sentence has to be imposed ; an~, thirdly, because the accused
is entitled, under section 235(2) of the Code of Criminal Procedure,
·to be heard on the question of sentence. The last of these three
reasons becomes relevant, only because of the first of these reasons.
In other words, it is because the Col!rt has au option to impose
either of the two alternative sentences, subject to the rule that the
normal punishment for murder is life imprisonment, that it is
important to !;tear the accused on. the question of sentence. If the
.Jaw provides a mandatory sentence of death as section 303 of the
Penal Code does, neither section 235(2) nor section 354(3) of the
Code of Criminal Procedure can possibly come into play. If the .
Court has no option save to impose the sentence of death, it is
G
meaningless 'to hear the accused on the question of sentence and it
becomes superfluous to state the reasons for imposing the sentence
·of death. The blatant reason for imposing the sentence of death in
such a case is that the law compels the court to impose that sentence.
The. ratio of Bachan Singh, therefore, is that, death sentence is
.. constitutional if it is prescribed as an alternative sentence for the
offence of murder and if the normal sentence prescribed by Jaw for
111urder is i~prisonment for life, ·
·ff
!
MJTHU v.'PUNJAB (Chandrachud, CJ.)
1M
. It will be clear from this discussion that since there is a
fundamental distinction between the provisions of section 302 and
s~ction 303 of the Penal Code, the ratio of Bachan Singh will not.
g(!)vern the question as regards the validity of section 303. This latter
question is res integra. Stated briefly, the distinction between the
two sections is that whereas, section 302 provides for the sentence
of death as alternative sentence, the only sentence which section 303
prescribes is the sentence of death. The Court has no option under
section 303 to impose any other sentence, no. matter what is the.
motivation of the crime and the circumstances in which it was
committed. Secondly, section 354(3) of the Code of Criminal Proce- ,
· dure applies in terms to those cases only wherein "the conviction is
for an offence punishable with death or, in the alternative, with
imprisonment for life or imprisonment for a term of years". Since
section 303 does not provide for an alternative sentence, section
354(3) has no application to cases .arising undqr that section. Thirdly,
section 235(2) of the Code of Criminal Procedure which confers a
right upon the accused to be heard on the .question of sentence,
becomes, a meaningless ritual in cases arising under section 303. If
the Court itself has no option to' pass any sentence except the
sentence of death, it is an idle formality to ask the accused as to
what he has· to say on the question of sentence.
The question which we had posed for our consideration at the
beginning of this judgment was somewhat broad. In the light of the
afforesaid discussion, that question narrows itself to a consideration
of certain.specific issues. The first and foremost 'issue which arises
specifically for our consideration is whether there is any infelligible
basis for giving differential treatment to an accused who commits the
offence of murder whilst under a sentence of life imprisonment.
Can he be put in a special .class or category as compared with others
who are found guilty of murder and be subjected to hostile treatment
by making it obligatory upon the court to sentence him to death ?
D
E
F
In other words, is there a valid basis for classifying persons who . G
commit murders whilst ihey are under the sentence of life imprisonment, separately from those who commit murders whilst they are ·
not under the sentence of life imprisonment, for the purpose of
making the sentence of death obligatoy in the case of the former
and optional in the case of the latter ? Is there any nexus between
such discrimination and the object of the impngned statute ? These H
questions stem principally from the position that seciion 303 makes
the sentence of death mandatory. That position raises certain side
•.
SUPREME COVRT REPORTS
(1983) 2 S.C.R.
A issues which are equally important. Is a law which provides for the
sentence of death for the offence of murder, without affording to the
accused an opportunity to show cause why that sentence should not
be imposed, just and fair ? Secondly, is such a law just and fair if,
in the very nature of things, >t does not require the Court to state
the reasons why the supreme penalty of law is called for? Is it not
B arbitrary to provide that whatever may be the circumstances in
which the offence of murder was committed, the sentence of death
shall be imposed upon the accused ?
The first question which we wou'd like to examine is whether
there is any valid basis for classifying persons who commit murders
c whilst they are under the sentence of life imprisonment as distinguished from those who commit murders whilst they are not under the
sentence of life imprisonment, for the purpose of making the sentence
of death mandatory in the case of the former class and optional in
the case of the latter class. We are unable to see any rational
D justification for making a distinction, in the matter of pJinishment,
between these two classes of offenders. Murders. can be motiveless
in the sense that .. in a given case, the motive which operates on the
mind of the offender is not known or is difficult to discover. But,
by and large, murders are . committed for any one or more of a
E
variety of motives which operate on the mind of the offender,
whether he is under a sentence of life imprisonment or not. Such
motives are too numerous and varied to enumerate but hate, lust,
sex, jealousy. gain, revenge and a host of weaknesses to which
human flesh is subject are common motives for the generality of
murders. Those reasons can operate as a motive force of ·the crime
F whatever may be the situation in which the criminal is plai:ed and
whatever may be the environment in which he finds himself. But,
as we have stated earlier, the framers of the PenF ~ Code had only
one case in mind, namely, the murder of jail officials by life-convicts.
Even if we confine ourselves to that class of cases, -the test or
G
H
reasonableness of classification will break down inevitably. From
that point of view, it will be. better to consider under different heads
cases in which murders are committed by life-convicts within the
jail precincts and murders which are committed by life-convicts
outside the jail, while they are on parole or bail.
We will first de~] with cases of murders committed by lifeconvicts within the precincts of the jail. The circumstance that a
MltHU ~. PUNJAB (Chandrachud, CJ.)
P.erson is undergoing a sentence of .Jife imprisonment does not mini•
mise the importance of mitigating factors which are relevant on the A
question of sentence which should be imposed for the offence:
committed by him while he is under the sentence of life imprison:-
ment. Indeed, a crime committed by a. convict within the jail while
he is under the sentence of life imprisonment may, in certain
circumstances, demand and deserve greater consideration, under· B ·
standing and sympathy than the original offence ·for which he was
sentenced to life imprisonment. This can be illustrated with the help
of ma~y instances but.one or two of those. may suffice. A life-convict
may be driven to retaliate against his systematic harassment by a
warder, who habitually tortures, starves and humiliates him. If the
act results in the death of the warder, the crime may amount to C'
murder because none of the exceptions mentioned in sect.ion 300
may apply. The question is whether it is reasonable to provide that
a life-convict who has committed the offence of murder in these
circumstances must necessarily be sentenced to · death and an
opportunity denied to him to explain why the death sentence should D
not be imposed upon him. And, how is it relevant on the question
of the prescription ofa mandatory sentence cif death that the murder
was committed by a life-convict ? Then again, to take another
instance, there are hundreds of inmates in cen1;ral jails. A life-convict
may be provoked gravely but' not suddenly, or suddenly but not
gravely enough, by an insinuation made against his wife's chastity E
by another inmate of the jail. If he commits the murder of the
insinuator, the only sentence which can be imposed upon him under
section 303 is the sentence of death. The question is, whether it is
reasonable to deprive such a person, because he was under a' sentence
of life imprisonment when he committed the offence of murder, from
an opportunity to satisfy the court that he acted under the pressure F
of a grave insult to his wife and should not therefore be sentenced
to death. We are of the opinion that, even limiting oneself to
murders committed by life-convicts within the four walls of jail, it
is difficult to hold that the prescription of the mandatory sentence
of death answers the test of reasonableness.
G·
The other class of cases in which, the offence of murder is
committed by a life-convict while he is on parole or on bail may now
be taken up for consideration. A life-convict who is released on If
parole or on bail may discover that taking undue advantage of his
absence, a neighbour has established illicit intimacy with his wife.
If he finds them in an amorous position and shoots the seducer 011
c
E,
E
H
S\JFRBMll COllRT R.BPORTS
iI983i 2 s.c.&.
the· sp0t, he may stand.a fair chance of escaping from the charge
ofmurder,.since the provocation is both grave and sudde'l· But if, on
*ling his wife in the act of adultery, he leaves the house, goes to a
shiop, procures a weapon and returns to kill her paramour, there
would be evidence of what is called mens rea, the intention to kill.
And since, he was not acting on the spur of the moment' and went
away to fetch a weapon with murder in his mind, he would be guilty
of murder. It is a travesty of justice not· only to sentence such a
person to death but to tell him that he shall not be heard why he
sh<lllld not be sentenced to death. And, in these circumstances, how
does the fact that the accused was under a senlence of life imprison·
ment ·when he committed the murder, justify the law that he must
be senllenced to death ? In ordinary life. we will not say it about law,
it is not reasonable to add insult to injury. But, apart from that, a
provision of law which deprives the court of the use of its wise and
beneficent discretion in a matter of life and death, without regard to ·
the circumstances in which the offence was com•nittcd and, ,therefore,
wiihout regard to the gravity of the offence, cannot but be regarded
as harsh, unjust and unfair. It has to be remembered that the measure
0f punishment for an offence is not afforded by the label which that
offence bears, as for example 'Theft', 'Breach of Trust' or "Murder'.
Tbe gravity of the offence furnishes the guideline for punirhment
aad one cannot determine how grave the offence is without, having
vegard to the.circumstances in.which it was committed, its motivation
and its repercussions.