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PETITIONER: MITHU, ETC., ETC.,

       Vs.

RESPONDENT: STATE OF PUNJAB ETC. ETC.

DATE OF JUDGMENT07/04/1983

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) FAZALALI, SYED MURTAZA TULZAPURKAR, V.D. REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)

CITATION:  1983 AIR  473            1983 SCR  (2) 690  1983 SCC  (2) 277        1983 SCALE  (1)331  CITATOR INFO :  R          1984 SC  45  (1)  F          1989 SC1335  (25,55)

ACT:      Indian Penal  Code, 1860-s.  303-Constitution of India- Arts. 14  and 21-Mandatory  sentence  of  death  for  murder committed by life-convicts is violative of rights guaranteed under Arts. 14 and 21-s. 303, I.P.C. is unconstitutional and void

HEADNOTE:      Section 303,  I.P.C. provides that whoever, being under sentence of  imprisonment for life, commits murder, shall be punished with death      Counsel for  appeallants/petitioners contended  that s. 303, I.P.C. is unconstitutional not only for the reason that it  is  unreasonable  and  arbitrary  but  also  because  it authorises deprivation  of life  by  an  unjust  and  unfair procedure.  Counsel   for  respondents  on  the  other  hand contended that since the validity of death sentence has been upheld in  Bachan Singh  and since  s. 303 does no more than prescribe death  sentence for  the offence  of  murder,  the ratio of  Bachan 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  be 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 punishment 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

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rational distinction can be made in the matter of sentencing between a  person who  commits murder  after serving out the sentence of  life imprisonment  and  a  person  who  commits 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 preferential 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-D] 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, jealousy,  gain, revenge and  a host  of weaknesses  to which  human flesh is subject, are  common motives  for the generality of murders. Those reasons  can operate  as a  motive force  of the crime whatever may  be the  situation in  which  the  criminal  is placed and whatever may be the environment in which he finds himself. [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 tail, it is difficult to hold that the prescription  of the mandatory sentence of death answers the test  of reasonableness.  The circumstance that a person is undergoing  a sentence  of  life  imprisonment  does  not minimise the  importance of  mitigating  factors  which  are relevant on the question of sentence which should be imposed for the  offence committed  by him  while he  is  under  the sentence of  life imprisonment. Indeed, a crime committed by a convict  within the jail while he is under the sentence of life imprisonment  may, in certain circumstances, demand and deserve greater  consideration, understanding  and  sympathy than the original offence for which he was sentenced to life imprisonment. [703 F-G; 702-H; 703 A-B]      (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 inside or outside  the prison by a person who is under the sentence of life imprisonment. Research studies conducted abroad have indicated that  the frequency  of murders committed by life- convicts while  they are  on parole  is not  so high  as  to justify a harsher treatment being accorded to them when they are found  guilty of  having committed  a  murder  while  on parole, as  compared with  other persons  who are  guilty of murder. There  is no  comparable  statistical  data  in  our country in  regard to the behaviour of life convicts who are released on  parole or bail but there is no reason to assume that the  incidence of  murders committed by such persons is unduly high. Indeed, if there is no scientific investigation on this point in our country, there is no basis for treating such persons differently from others who commit murders.[705 D-H; 706 A-H; 707 A-C]      (v) There  are as many as 51 sections in the Penal Code which provide  for the  sentence  of  life  imprisonment.  A person who  is sentenced  to life  imprisonment for  any  of these offences  incurs the  mandatory penalty of death under s. 303,  if he  commits a  murder  while  he  is  under  the

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sentence of  life imprisonment.  It is 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 legislature 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 imprisonment  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 will have to be sentenced to death  if he  commits a  murder while  he  is  under  the sentence of life 692 imprisonment.  There  is  nothing  in  common  between  such offences previously  committed and the subsequent offence of murder. Indeed, it defies all logic to understand why such a provision was  made and what social purpose can be served by sentencing a  forgerer to  a compulsory  punishment of death for the  mere reason  that he was undergoing the sentence of life imprisonment  for forgery when he committed 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 a 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-C]      (vi) A standardised 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 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  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 the 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 matter of life and death, without regard to the circumstances in which the offence  was committee  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 cases, compel them to shut  their eyes  to mitigating circumstances and inflict upon them  the dubious and unconscionable duty of imposing a pre-ordained sentence of death [704 D-F]      (viii) It  is because  the death sentence has been made mandatory by  s. 303  I.P.C. in regard to a particular class of persons  that,  as  a  necessary  consequence,  they  are deprived of  the opportunity  under s.  235 (2), Cr. P.C. to

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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 and  safeguards which is  bound to  result in  injustice 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 legislature to prescribe the procedure and for the courts to follow it or that it is for the legislature to 693 provide the  punishment and for the courts to impose it. The courts are  not bound  and are  indeed not  free, to apply a fanciful procedure by a blind adherence to the letter of the law or  to impose  a savage  sentence. The  last word on the question of  justice and  fairness does  not rest  with  the legislature. Just  as reasonableness  of restrictions  under cls. (2)  to (6)  of Art. 19 is for the courts to determine, so is  it for  the courts  to decide  whether the  procedure prescribed by  a law  for depriving  a person of his life or liberty is fair, just and reasonable. [698 G-H; 699 C-D]      Maneka Gandhi  v. Union  of India, [1978] 2 S.C.R. 621; Sunil Batra  v. Delhi  Administration, [1979]  1 S.C.R. 392; and Bachan  Singh v.  State of  Punjab, [1980] 2 S.C.C. 684, referred to.      (x) In  Bachan Singh the majority concluded that s.302, I.P.C. is  valid for  three main  reasons: Firstly, that the death sentence  provided for  by s. 302 is an alternative to the sentence  of life  imprisonment; secondly,  that special reasons have  to be stated under s. 354 (3), Cr. P.C. if the normal rule  is departed  from and the death sentence has to be imposed;  and, thirdly,  because the  accused is entitled under s.  235 (2),  Cr. P.C.  to be heard on the question of 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 law for murder is imprisonment for life.  Since there  is a fundamental distinction between the provisions  of s.  302 and  s. 303, I.P.C., the ratio of Bachan Singh  will not  govern the  question as  regards the validity of  s.303: whereas  s. 302, I.P.C. provides for the sentence of  death as  an  alternative  sentence,  the  only sentence which  s. 303  I.P.C. prescribes is the sentence of death; and  since s.  303 I.P.C.  does not  provide  for  an alternative sentence,  ss.354 (3)  and 235(2), Cr. P.C. have no application to cases arising under that section.[700 D-H; 701 A-D]      Bachan Singh  v. State  of Punjab  [1980] 2  S.C.C. 684 explained.      per Chinnappa Reddy, J. (concurring):      Section 303,  I.P.C. is out of tune with the philosophy of our Constitution. It particularly offends Art. 21 and the new jurisprudence  which has  sprung around  since the  Bank Nationalisation case.  Maneka  Gandhi  carried  Art.  21  to nobler rights  and made  it the focal point round which must now revolve  to advantage all claims to rights touching life and liberty. The procedure prescribed by law has to be fair, just and  reasonable, not fanciful, oppressive or arbitrary. Bachan Singh  sustained the  validity of  s.302 because  the sentence of  imprisonment for  life and  not death  was  the normal punishment  for murder, and the sentence of death was an alternative  penalty  to  be  resorted  to  in  the  most exceptional of  cases and the discretion to impose or not to impose the  sentence  of  death  was  given  to  the  Judge. Judicial discretion  was what prevented the outlawing of the

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sentence of death even as an alternative penalty for murder. Judged in the light of Maneka Gandhi and Bachan Singh, it is impossible to  uphold s.  303 as valid. Section 303 excludes judicial  discretion.   So  final,  so  irrevocable  and  so irrestitutable 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. [712 C-H; 713 A-G] 694      Bank Nationalisation  Case,[1970] 3  S.C.R. 530; Maneka Gandhi v.  Union of  India, [1978]  2 S.C.R. 621; and Bachan Singh v. State of Punjab, [1980] 2 S.C.C.684, referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION/ORIGINAL JURISDICTION: Criminal Appeal No. 745 of 1980.      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. 15 of 1979.                             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. 2744 of 1980      From the Judgment and order dated the 28th August, 1980 of the  Punjab &  Haryana High  Court in Criminal Appeal No. 317 of 1980 and Murder Reference No. 4 of 1980.                             AND                Writ Petition No. 1365 of 1982      (Under Article 32 of the Constitution of India)                             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 High Court in Criminal Appeal No. 711-DB of 1981. 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 in Article. 21  of the  Constitution which  provides  that  "No person shall  be deprived  of his  life or  personal liberty except according to procedure established by law."      Section 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  those  sections  life  imprisonment  is  the

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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 Criminal 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."      While upholding the validity of the death sentence as a punishment for  murder, a  Constitution Bench  of this Court ruled in  Bachan Singh(1) 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 696 according  to   their  subject-matter,  defining  them  with precision and  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 deal with, was  as to  the punishment  which should be prescribed for the offence of murder 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-Whoever,      being under  sentence of imprisonment for life, commits      murder, shall be punished with death."      The reason,  or at  least one  of the  reasons, why the discretion of  the Court  to impose  a lesser  sentence  was taken away  and the  sentence of death was made mandatory in cases which  are covered  by section  303 seems to have been that if,  even the  sentence of  life imprisonment  was  not sufficient to  act  as  a  deterrent  and  the  convict  was hardened enough  to  commit  a  murder  while  serving  that sentence, the  only punishment  which he deserved was death. The severity  of this legislative judgment accorded with the deterrent and  retributive theories of punishment which then held sway.  The reformative  theory of  punishment attracted the attention  of  criminologists  later  in  the  day.  How sternly the  legislature looked  at the  offence  of  murder committed by  a life-convict  can be gauged by the fact that in the  early history  of the  Code of  Criminal  Procedure, unlike as at present, if a person undergoing the sentence of transportation for  life was sentenced to transportation for another offence,  the latter sentence was to commence at the expiration of the sentence of transportation to which he was previously sentenced,  unless the  court directed  that  the subsequent   sentence   of   transportation   was   to   run concurrently with  the previous  sentence of transportation. It was  in 1955  that section  397 of the Criminal Procedure Code of  1898 was replaced by a new section 397 by Amendment Act 26 of 1955. Under the new sub-section (2) of section 397 which came  into force  on January  1,  1956,  if  a  person already undergoing  a sentence  of imprisonment for life was sentenced on  a subsequent  conviction to  imprisonment  for life, the  subsequent sentence  had to run concurrently with the  previous  sentence.  Section  427(2)  of  the  Criminal Procedure Code  of 1973 is to the same effect. The object of referring to  this aspect of the matter is to emphasise that

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when section  303 of  the Penal Code was originally enacted, the legislature did not 697 consider that  even successive  sentences of  transportation for life  were an  adequate punishment  for the  offence  of murder committed  by a  person who was under the sentence of life imprisonment.      While enacting  section 303  in terms  which create  an absolute liability,  the framers  of the  Penal Code ignored several  important   aspects  of  cases  which  attract  the application of that section and of questions which are bound to arise  under it.  They seem  to have had only one kind of case in  their mind and that is, the commission of murder of a jail official by a life-convict. It may be remembered that in  those  days,  jail  officials  were  foreigners,  mostly Englishmen,  and,  alongside  other  provisions  which  were specially designed  for the  members of the ruling class as, for example,  the choice  of jurors, section 303 was enacted in order  to prevent  assaults by  the indigenous breed upon the white  officers. In  its 42nd  Report  (1971),  the  Law Commission of  India has  observed in  paragraph 16.17 (page 239), that  "the primary object of making the death sentence mandatory for  an offence  under this section seems to be to give protection  to the prison staff". We have no doubt that if a  strictly penological  view was  taken of the situation dealt with  by section  303, the  framers of  the Code would have had  a second  thought on  their decision  to make  the death sentence  mandatory,  even  without  the  aid  of  the constitutional constraints which operate now.      But before we proceed to 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 section. The sum  and substance of the argument is that the provision contained  in   section  303   is  wholly  unreasonable  and arbitrary  and  thereby,  it  violates  Article  21  of  the Constitution which  affords the  guarantee  that  no  person shall be  deprived of his life or personal liberty except in accordance with  the procedure established by Law. Since the procedure by which section 303 authorises the deprivation of life is  unfair and unjust, the section is unconstitutional. Having examined  this argument with care and concern, we are of the  opinion that  it must be accepted and section 303 of the Penal Code struck down.      In Maneka Gandhi v. Union of India,(1) it was held by a seven Judge  Bench that  a statute  which merely  prescribes some kind of procedure for depriving a person of his life or personal liberty cannot 698 ever meet  the requirements  of Article  21:  The  procedure prescribed 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. Delhi Administration,(1) while dealing with  the question  as to  whether a person awaiting death sentence  can be kept in solitary confinement, 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(2) and Maneka Gandhi:           "For what is punitively outrageous, scandalizingly      unusual  or   cruel   and   rehabilitatively   counter-      productive, is  unarguably unreasonable  and  arbitrary

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    and is shot down by Articles 14 and 19 and if inflicted      with procedural unfairness, falls foul of Article 21." Desai J. observed in the same case that:           "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      oppressive. Otherwise  it would  be no procedure at all      and  the   requirement  of  Article  21  would  not  be      satisfied. If it is arbitrary, it would be violative of      Article 14."      In  Bachan   Singh  which   upheld  the  constitutional validity of the death penalty, Sarkaria J., speaking for the majority,  said   that  if   Article  21  is  understood  in accordance with  the interpretation  put upon  it in  Maneka Gandhi, it will read to say that:           "No person  shall  be  deprived  of  his  life  or      personal liberty  except according  to fair,  just  and      reasonable procedure  established by  valid law." (page      730)      These decisions  have expanded  the scope of Article 21 in a  significant way  and it  is now too late in the day to contend that  it is  for the  Legislature to  prescribe  the procedure and for the Court to follow it, that it is for the legislature to provide the punishment 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 the courts are not bound, and are indeed not free, to  apply a fanciful procedure by a blind adherence to the letter  of the law or to impose a savage sentence. A law 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 law  were to  provide that  the offence  of theft will  be punishable with the penalty of the cutting of hands, the law will be bad as violating Article 21. A savage sentence is  anathema  to  the  civilized  jurisprudence  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  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  law for depriving a person of  his life or liberty is fair, just and reasonable. The question  which then  arises before  us is  whether  the sentence of  death, prescribed  by section  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 suffer 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  for  the offence of murder, the ratio of Bachan Singh would apply and 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 again. 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

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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 hand, the decisions rendered by the court have to be understood in the light of the legal provisions which  came up  for consideration  therein and in the light of the facts, if facts were involved. The majority did not lay down any abstract proposition in Bachan Singh 700 that "Death  sentence is  constitutional", that  is to  say, that "It  is permissible  under the  Constitution to provide for the  sentence of death". To be exact, the question which arose for  the consideration  of the  Court was not whether, under the Constitution, it is permissible to provide for the sentence of  death. The precise question which arose in that case was  whether  section  302  of  the  Penal  Code  which provides for  the sentence  of  death  as  one  of  the  two alternative sentences  is valid.  It may  be  recalled  that section 302  provides  for  the  sentence  of  death  as  an alternative  sentence  which  may  be  imposed.  The  normal sentence for  murder is  life imprisonment; and if the death sentence has  to be  imposed, the  Court is  under  a  legal obligation under  section 354(3)  of the  Criminal Procedure Code  to   state  the  special  reasons  for  imposing  that sentence. That  explains why,  in Bachan Singh, Sarkaria J., who  spoke   for  the   majority,  underscored   the   words "alternative" and  "may" in  paragraph 19  of the  judgment, whilst observing  that the Penal Code prescribes death 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  Code 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; and, 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  Court has  an 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  hear  the  accused  on  the  question  of sentence. If  the law 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 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  law  for murder is imprisonment for life, 701      It will  be clear from this discussion that since there is a  fundamental  distinction  between  the  provisions  of section 302  and section 303 of the Penal Code, the ratio of Bachan Singh  will not  govern the  question as  regards the validity  of  section  303.  This  latter  question  is  res

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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 Procedure applies in terms to  those cases only wherein "the conviction is for an offence punishable  with death  or, in the alternative, with imprisonment for  life or imprisonment for a term of years". Since section  303  does  not  provide  for  an  alternative sentence, section 354(3) has no application to cases arising under that  section. Thirdly,  section 235(2) of the 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 aforesaid  discussion, that  question  narrows itself to  a consideration  of certain  specific issues. The first and  foremost issue  which arises specifically for our consideration is whether there is any intelligible basis for giving differential  treatment to an accused who commits the offence  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 ? In other words, is there a  valid basis  for  classifying  persons  who  commit murders  whilst   they  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  impugned statute  ? These questions stem principally from  the position  that section  303 makes  the sentence of  death mandatory.  That position  raises certain side 702 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,  it does  not require  the  Court  to  state  the reasons why the supreme penalty of law is called for ? Is it not  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 would  like to examine is whether there is any valid basis for classifying persons who commit murders  whilst they  are under  the sentence of life imprisonment as  distinguished from those who commit murders whilst they are not under the sentence of life imprisonment, for the purpose of making the sentence of death mandatory in the case of the former class and optional in the case of the latter  class.   We  are   unable  to   see   any   rational justification for  making a  distinction, in  the matter  of punishment, between  these two classes of offenders. Murders

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can be  motiveless in  the sense  that, in a given case, the motive which  operates on  the mind  of the  offender is not known or  is difficult  to  discover.  But,  by  and  large, murders are  committed for  any one  or more of a variety of motives which  operate on  the mind of the offender, whether he is  under a  sentence of  life imprisonment  or not. Such motives are  too numerous  and varied to enumerate but hate, lust, sex,  jealousy, gain, revenge and a host of weaknesses to which  human flesh  is subject are common motives for the generality of murders. Those reasons can operate as a motive force of  the crime  whatever may  be the situation in which the criminal  is placed  and whatever may be the environment in which  he finds  himself. But, as we have stated earlier, the framers  of the  Penal Code  had only  one case in mind, namely, the  murder of jail officials by life-convicts. Even if we  confine ourselves to that class of cases, the test or reasonableness of classification will break down inevitably. 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 deal  with cases of murders committed by life-convicts  within   the  precincts   of  the  jail.  The circumstance that a 703 person is  undergoing a  sentence of  life imprisonment does not minimise  the importance of mitigating factors which are relevant on the question of sentence which should be imposed for the  offence committed  by him  while he  is  under  the sentence of  life imprisonment. Indeed, a crime committed by a convict  within the jail while he is under the sentence of life imprisonment  may, in certain circumstances, demand and deserve greater  consideration, understanding  and  sympathy than the original offence for which he was sentenced to life imprisonment. This  can be illustrated with the help of many instances but  one or  two of  those may  suffice.  A  life- convict may  be driven  to retaliate  against his systematic harassment by a warder, who habitually tortures, starves and humiliates him.  If the  act results  in the  death  of  the warder, the  crime may  amount to murder because none of the exceptions mentioned  in section 300 may apply. The question is whether  it is  reasonable to provide that a life-convict who  has   committed  the   offence  of   murder  in   these circumstances must  necessarily be sentenced to death and an opportunity denied  to him to explain why the death sentence should not  be imposed  upon him. And, how is it relevant on the question  of the prescription of a mandatory sentence of death that the murder was committed by a life-convict ? Then again, to  take another  instance,  there  are  hundreds  of inmates in  central jails.  A life-convict  may be  provoked gravely but  not  suddenly,  or  suddenly  but  not  gravely enough, by  an insinuation  made against his wife’s chastity by another  inmate of  the jail. If he commits the murder of the insinuator,  the only sentence which can be imposed upon him under section 303 is the sentence of death. The question is, whether  it is  reasonable to  deprive  such  a  person, because he was under a sentence of life imprisonment when he committed the  offence of  murder, from  an  opportunity  to satisfy the  court that  he acted  under the  pressure of  a grave insult  to  his  wife  and  should  not  therefore  be sentenced to  death.  We  are  of  the  opinion  that,  even limiting  oneself  to  murders  committed  by  life-convicts within the  four walls of jail, it is difficult to hold that the prescription  of the mandatory sentence of death answers

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the test of reasonableness.      The other  class of  cases in  which,  the  offence  of murder is  committed by a life-convict while he is on parole or on  bail may  now be  taken up for consideration. A life- convict who  is released  on parole  or on bail may discover that taking  undue advantage of his absence, a neighbour has established illicit intimacy with his wife. If he finds them in an amorous position and shoots the seducer on 704 the spot,  he may  stand a  fair chance of escaping from the charge of  murder, since  the provocation  is both grave and sudden. But  if, on  seeing his wife in the act of adultery, he leaves  the house,  goes to a shop, procures a weapon and returns to  kill her  paramour, there  would be  evidence of what is  called mens  rea, the intention to kill. And since, he was not acting on the spur of the moment and went away to fetch a  weapon with  murder in his mind, he would be guilty of murder.  It is a travesty of justice not only to sentence such a  person to death but to tell him that he shall not be heard why he should not be sentenced to death. And, in these circumstances, how  does the fact that the accused was under a sentence  of  life  imprisonment  when  he  committed  the murder, justify the law that he must be sentenced to death ? In ordinary  life we  will not  say it  about law, it is not reasonable to  add insult to injury. But, apart from that, a provision of  law which deprives the court of the use of its wise and  beneficent discretion  in a  matter  of  life  and death, without  regard to  the circumstances  in  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  hall-marks of  justice. The  mandatory sentence  of death prescribed  by section 303, with no discretion left to the court  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.      We are  also unable to appreciate how, in the matter of sentencing, any  rational distinction  can be made between a person who 705 commits a  murder after  serving out  the sentence  of  life imprisonment and  a person  who commits a murder while he is still under  that sentence.  A person  who has been in jail, say for  14 years,  and commits  the offence of murder after coming out of the jail upon serving out that sentence is not entitled to  any greater  consideration than a person who is

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still serving the sentence of life imprisonment for the mere reason that  the former  has served out his sentence and the latter is  still under  the sentence  imposed upon  him. 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. A  person who  stands unreformed after a long term  of incarceration is not, by any logic entitled to preferential treatment  as compared  with a  person  who  is still under  the sentence  of life  imprisonment. We  do not suggest  that   the  latter   is  entitled  to  preferential treatment over  the former. Both have to be treated alike in the  matter  of  prescription  of  punishment  and  whatever safeguards and  benefits are available to the former must be made available to the latter.      We have  already adverted  to the  stresses and strains which operate on convicts who are sentenced to long terms of imprisonment like  the sentence  of life  imprisonment. Many scholars have  conducted research  into this matter. It will serve our purpose to draw attention to the following passage from a book called "The Penalty of Death" by Thorsten Sellin (1)           "Anyone who has studied prisons and especially the      maximum-security  institutions,   which  are  the  most      likely abodes  of murderers  serving sentences  of life      imprisonment or  long terms of years, realizes that the      society of  captives within  their walls  is subject to      extraordinary strains  and  pressures,  which  most  of      those in  the outside  world experience  in  attenuated      forms,  if   at  all.   The  prison   is  an  unnatural      institution. In  an area of limited size, surrounded by      secure walls,  it houses  from a  few score  to several      thousand  inmates   and  their   custodians.  In   this      unisexual  agglomeration   of  people,  separated  from      family and  friends, prisoners  are  constantly  thrown      into association with one another and subject to a host      of regulations  that limit  their freedom of action and      are 706      imposed partly  by the prison authorities and partly by      the inmate  code. It  is not  astonishing that  in this      artificial environment  altercations occur, bred by the      clash of  personalities and  the conflict  of interests      that lead  to fights  in free  society, especially when      one considers  that most of the maximum-security prison      inmates are  fairly young  and have  been raised in the      poorer quarters of our cities, where resort to physical      violence in  the  settlement  of  disputes  is  common.      Indeed, what  surprises the  student of prison violence      is the relative rarity of assaultive events, everything      considered." (p. 105)      This is some good reason why convicts who are under the sentence of  life imprisonment  should not  be discriminated against as  compared with  others, including  those who have served out  their  long  terms  of  imprisonment.  There  is another passage  in the  same book which shows with the help of statistics  that the  frequency of  murders committed  by life-convicts while  they are on parole is not so high as to justify a harsher treatment being accorded to them when they are found  guilty of  having committed  a  murder  while  on parole, as  compared with  other persons  who are  guilty of murder. The author says :           "In  the   United  States,  convicts  whose  death      sentences have been commuted or who have been sentenced      to  life  imprisonment  for  murder  may  regain  their

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    freedom by being paroled after spending a decade or two      in prison.  Some  are  deprived  of  this  opportunity,      because they  die a  natural or  violent death while in      the institution.  Some may  be serving  time in  states      that have  laws  baring  the  release  of  first-degree      murderers or  lifers, but  even there  the exercise  of      executive clemency may remove the barrier in individual      cases. There  is no  need to  discuss here  the various      aspects  of  the  parole  process  when  murderers  are      involved because  we are  concerned only  with how such      parolees behave  once they have been set free. Do they,      indeed, abuse  their freedom  and are  they  especially      likely to  prove a  menace to the lives of their fellow      citizens ?  It is  fear of  that menace that makes some      people favor  capital punishment  as a  sure  means  of      preventing a  murderer from  killing  again  after  his      return to  freedom in  the community.  As we shall see,      paroled murderers  do sometimes repeat their crime, but      a look at some facts 707      will show  that among  parolees who  commit  homicides,      they rank very low." (P. 113)      According to  the statistics  tabulated at  page 115 of the book,  out of  6835 life-convicts  who were  released on parole, 310 were returned to prison for new crimes committed by them  while  on  parole.  Out  of  these  310  twenty-one parolees were returned to the prison on the charge of wilful homicide,  that   is,  murder.   There  is   no   comparable statistical data  in our  country in regard to the behaviour of life-convicts  who are  released on  parole or  bail  but there is  no reason  to assume that the incidence of murders committed by  such persons  is unduly high. Indeed, if there is no scientific investigation on this point in our country, there is no basis for treating such persons differently from others who commit murders.      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.......(1)". As observed by Palekar  J.,  who  spoke  for  a  Constitution  Bench  in Jagmohan Singh v. State of U.P. (2) :           "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 final analysis,      the safest  possible safeguard  for the accused." (Page      559)      The  self-confidence   which  is   manifested  in   the legislative prescription of a computerised sentence of death is not  supported by scientific data. There appears to be no reason why in the case of a 708 person whose  case falls under section 303, factors like the age and sex of the offender, the provocation received by the offender and the motive of the crime should be excluded from

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consideration  on   the  question   of  sentence.  The  task performed by  the legislature  while enacting section 303 is beyond even  the present  human ability  which  has  greater scientific  and   sophisticated  resources   available   for compiling data, than those which were available in 1860 when section 303 was enacted as part of the Indian Penal Code.      It  is   because  the  death  sentence  has  been  made mandatory by  section 303 in regard to a particular class of persons that,  as a necessary consequence, they are deprived of the  opportunity under  section 235(2)  of  the  Criminal Procedure  Code  to  show  cause  why  they  should  not  be sentenced to  death and  the  Court  is  relieved  from  its obligation under  section 354(3)  of that  Code to state the special reasons  for imposing  the sentence  of  death.  The deprivation of these rights and safeguards which is bound to result in injustice is harsh, arbitrary and unjust.      We have  stated at  the beginning of this judgment that there are  as many  as 51  sections of  the Penal Code which provide  for   the  sentence  of  life  imprisonment.  Those sections are  : Sections  121, 121-A,  122, 124-A, 125, 128, 130, 131,  132, 194,  222, 225, 232, 238, 255, 302, 304 part I, 305,  307, 311, 313, 314, 326, 328, 363-A, 364, 371, 376, 388, 389,  394, 395, 396, 400, 409, 412, 413, 436, 438, 449, 459, 460,  467, 472,  474, 475, 477, 489-A, 489-B, 489-D and section 511  (attempt to  commit  offences  punishable  with imprisonment for  life). A  person who  is sentenced to life imprisonment for  any of these offences incurs the mandatory penalty of  death under  section 303  if he commits a murder while he  is under  the sentence of life imprisonment. It is impossible to  see the  rationale of  this aspect of section 303. There  might have  been the  semblance of some logic to explain, if  not to  sustain, such a provision if murder was the only  offence for which life imprisonment was prescribed as a  punishment. It could then be argued that the intention of the  legislature 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 imprisonment for breach of trust (though, such a sentence is rarely imposed), or for  sedition under section 124-A or for counterfeiting a coin under section 232 or for forgery under section 467 will have to  be sentenced  to death if he commits a murder while he is  under the  sentence of  life imprisonment.  There  is nothing in common between such offences previously committed and the subsequent 709 offence of murder. Indeed, it defies all logic to understand why such a provision was made and what social purpose can be served by  sentencing a  forgerer to a compulsory punishment of death  for the  mere reason  that he  was undergoing  the sentence of  life imprisonment for forgery when he committed 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 a  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.  Assuming that  section 235(2)  of the  Criminal Procedure Code were applicable to the case and the Court was under an  obligation to  hear the accused on the question of sentence, it  would have  to put  some such  question to the accused :           "You were  sentenced to  life imprisonment for the      offence of  forgery. You  have committed a murder while      you were  under that sentence of life imprisonment. Why

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    should you not be sentenced to death ?"      The question  carries its own refutation. It highlights how  arbitrary  and  irrational  it  is  to  provide  for  a mandatory sentence of death in such circumstances.      In its  Thirty-Fifth  Report  on  ’Capital  Punishment’ published in 1967, the Law Commission of India considered in paragraphs 587  to 591  the question of prescribing a lesser sentence for  the offences under sections 302 and 303 of the Penal Code. It observed in paragraph 587 that :           "For the  offence under  section 303, Indian Penal      Code, the  sentence of  death is  mandatory. The reason      for this is that in the case of an offence committed by      a person  who is already under sentence of imprisonment      for life,  the lesser sentence of imprisonment for life      would be  a formality.  It has, however, been suggested      that even for this offence the sentence of death should      not be mandatory. We have considered the arguments that      can be  advanced in support of the suggested change. It      is true that, ordinarily speaking, leaving the court no      discretion in  the matter  of sentence  is an  approach      which is not in conformity with modern trends." 710      After dealing with the question whether the sentence of death ought  not  to  be  mandatory  and  after  considering whether section  303 should  be amended  so as  to limit its application to  cases in  which a  person sentenced  to life imprisonment for  the offence  of  murder  commits  again  a murder while  he is under the sentence of life imprisonment, the Law  Commission concluded in paragraph 591 of its Report that "It  is not necessary to make any change". It felt that :           "Acute cases  of hardship,  where the  extenuating      circumstances are  overwhelming in their intensity, can      be dealt  with under  section  401,  Code  of  Criminal      Procedure, 1898. and that seems to be sufficient".      In its  Forty-second Report  on the  Indian Penal Code, published in  June 1971, the Law Commission considered again the question  of amending section 303. It found it anomalous that a  person whose  sentence of  imprisonment for life was remitted unconditionally by the Government could be held not to be  under the  sentence of  life imprisonment,  but if  a person was released conditionally, he could still be held to be under  that sentence. It therefore suggested that section 303 should  be amended  so as to restrict its application to life convicts who are actually in prison. The Commission did not, however,  recommend any  change since,  section 303 was "very  rarely  applied".  It  felt  that  if  there  was  an exceptionally hard  case, it  could be  easily dealt with by the President  or the  Governor  under  the  prerogative  of mercy.      On December 11, 1972 a Bill was introduced in the Rajya Sabha to  amend  the  Penal  Code,  one  of  the  amendments suggested being  that section  303 of  the  Code  should  be deleted. On  a motion  made by the then Minister of State in the Ministry  of Home  Affairs, the Bill was referred to the Joint Committee  of the  Rajya Sabha  and the Lok Sabha: The Committee held 97 sittings and made various recommendations, one of  which was  that the  punishment for murder which was prescribed separately  by sections  302 and 303 of the Penal Code should  be brought  under one  section of the Code. The Committee  further   recommended  that   it  should  not  be obligatory to  impose the  sentence of death on a person who commits  a   murder  while   under  the   sentence  of  life imprisonment and  the question  whether, in such a case, the sentence of  death or  the  sentence  of  life  imprisonment

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should be  awarded should  be left  to the discretion of the Court. The Committee accordingly suggested the addition of a new Clause  125 in  the Bill for omitting section 303 of the Penal 711 Code. The Report of the Joint Committee was presented to the Rajya sabha  on January  29, 1976 whereupon The Indian Penal Code (Amendment) Bill, XLII-B of 1972, was tabled before the Rajya Sabha.  But,  what  was  proposed  by  Parliament  was disposed of by the ballot-box. A mid-term parliamentary poll was held  while the  Bill was pending and there was a change of Government.  The Bill  lapsed and that was that. It is to be deeply  regretted that  the attention  of an  over-worked Parliament  has   not  yet  been  drawn  to  urgent  reforms suggested in  the Penal  Code Amendment Bill XLII-B of 1972. In all  probability, the  amendment suggested  by Clause 125 (New) for  the deletion  of section  303 of  the Penal  Code would have  passed muster  without any  opposition. The only snag in  the passing  of the  Bill has  been that it was not revived and  put to vote. Section 303 was destined to die at the hands  of the  court. Our only regret is that during the last six  years since 1977, some obscure forger sentenced to life imprisonment, who may have committed murder while under the sentence  of life  imprisonment, may have been sentenced to the  mandatory sentence  of death, unwept and unasked why he should not be hanged by the neck until he is dead.      On a  consideration of  the various circumstances which we have  mentioned in  this judgment,  we are of the opinion that section  303 of  Penal Code  violates the  guarantee of equality contained in Article 14 as also the right conferred by Article  21 of  the Constitution  that no person shall be deprived of his life or personal liberty except according to procedure established  by law.  The section  was  originally conceived to  discourage assaults  by life-convicts  on  the prison staff,  but the  Legislature chose language which far exceeded its  intention. The section also assumes that life- convicts are  a dangerous breed of humanity as a class. That assumption is  not supported  by  any  scientific  data.  As observed by  the Royal  Commission in its Report on ’Capital Punishment’ (1)  "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. Sate of  M.P., (2)  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 712 operation". We  strike down  section 303  of 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.      The various  cases in  this batch  of Appeals  and writ petitions may  now be  placed before  a Division  Bench  for disposal on merits in the light of these judgments.      CHINNAPPA REDDY,  J. Section 303, Indian Penal Code, is an anachronism.  It is  out of  tune with  the march  of the times. It  is out  of tune  with the  rising tide  of  human consciousness. It  is out  of tune with the philosophy of an enlightened Constitution  like ours. It particularly offends Art. 21 and the new jurisprudence which has sprung around it

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ever since  the Banks Nationalisation case freed it from the confines of  Gopalan. After  the Banks Nationalisation case, no article  of the  Constitution guaranteeing  a Fundamental Right was  to lead  an isolated existence. Added nourishment was to  be sought  and added  vigour was  to be  achieved by companionship. Beg,  CJ,.  said  it  beautifully  in  Maneka Gandhi:           "Articles  dealing   with  different   fundamental      rights contained in Part III of the Constitution do not      represent entirely  separate streams of rights which do      not mingle  at many  points. They  are all  parts of an      integrated scheme  in the  Constitution.  Their  waters      must mix to constitute that grand flow of unimpeded and      impartial Justice  (social,  economic  and  political),      Freedom (not only of thought, expression, belief, faith      and  worship,   but  also   of  association,  movement,      vocation or  occupation as  well as  of acquisition and      possession of  reasonable property),  of  Equality  (of      status and  of  opportunity,  which  imply  absence  of      unreasonable   or    unfair   discrimination    between      individuals, groups  and classes),  and  of  Fraternity      (assuring dignity  of the  individual, and the unity of      the  nation),   which  our   Constitution   visualises.      Isolation of  various aspects  of  human  freedom,  for      purposes of  their protection, is neither realistic nor      beneficial but  would defeat  the very  objects of such      protection."      Maneka Gandhi carried Art. 21 to nobler rights and made it the focal point round which must now revolve to advantage all 713 claims to  rights touching  life and  liberty. If  Art..  21 declared, "No  person shall  be  deprived  of  his  life  or liberty except  according to  procedure established by law," the Court declared, without frill or flourish, in simple and absolute terms:           "The procedure  prescribed by  law has to be fair,      just  and   reasonable,  not  fanciful,  oppressive  or      arbitrary", (Chandrachud, J, as he then was).      The question  whether Sec.  302 which  provides  for  a sentence  of   death   as   an   alternative   penalty   was constitutionally valid  was raised  in Bachan  Singh. Bachan Singh  sustained  the  validity  of  Sec.  302  because  the sentence of  imprisonment for  life and  not death  was  the normal punishment  for murder, and the sentence of death was an alternative  penalty  to  be  resorted  to  in  the  most exceptional of  cases and the discretion to impose or not to impose the  sentence of  death was  given to  the Judge. The ruthless rigour  of  the  sentence  of  death,  even  as  an alternative penalty,  was thought to be tempered by the wide discretion given  to the Judge. Judicial discretion was what prevented the  outlawing of the sentence of death even as an alternative penalty  for murder. Even so the Court took care to declare  that it  could only be imposed in the ’rarest of rare’ cases.      Judged in  the light  shed by  Maneka Gandhi and Bachan Singh, it  is impossible  to uphold  Sec. 303 as valid. Sec. 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 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. Sec. 303  is such  a law  and it  must go the way of all bad

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laws. I  agree with  my Lord  Chief Justice  that Sec.  303, Indian Penal Code, must be struck down as unconstitutional. H.L.C. 714