Abstract
Section 303 of the Indian Penal Code was enacted to provide for imposing the death sentence on a person who committed murder while serving a life sentence. However, in the case of Mithu v. State of Punjab, it was struck down by the Supreme Court as violative of the fundamental rights to equality and right to life under the Constitution of India. Of late, a similar provision found a place again as Section 104 of the Bhartiya Nyaya Sanhita and raises several questions on its constitutionality. This paper deals with the legal and human rights scenario of Section 104 and goes on to explore if it respects the sense of justice and equality upheld by the Indian legal system. The paper will attempt to understand whether the reinstated provision can withstand constitutional scrutiny by turning to past court decisions and the broader context of human rights. Furthermore, it will explore the intent behind such a legislative move and its possible impact on society. The present work represents an endeavor to explain the challenges and controversies associated with Section 104 in as lucid a manner as possible and to precisely explain its place within the modern legal and human rights landscape of India. Enacted in 1860, the Indian Penal Code has remained the mother statute for criminal law in India, amalgamating an entire framework of offenses along with their applied punishments.
Keywords– Death Penalty, Human Rights, Punishment, Equality, Constitution, Criminal Justice System
Introduction
Indian Penal Code had a provision for Section 303 that made the death penalty mandatory in cases where a life-term convict commits murder. This section was struck down by the Supreme Court in the judgment of Mithu v. State of Punjab, 1983, on the ground that it violated the constitutional principles relating to equality and the right to life. The Court held that the mandatory death penalty did not provide any scope for judicial discretion; the sentencing was in violation of the right to a fair trial and the doctrine of individualized sentencing. The Court held that the mandatory death penalty did not provide any scope for judicial discretion; the sentencing was in violation of the right to a fair trial and the doctrine of individualized sentencing. Whereas in the recent legislative development, Section 303 has been reinstated in the amended form of Section 104 of the Bhartiya Nyaya Sanhita. This certainly has generated massive controversy and legal debate on whether it will pass muster under constitutional mandates and human rights standards. According to the new provision, the same is aimed at incorporating suggestions made by the Supreme Court; however, analytically speaking, these corrections may not be enough to override constitutional challenges.
This paper is an attempt at an in-depth constitutional analysis of Section 104 under the BNS. It would relate the historical backdrop and judicial reasonings behind declarations of invalidity of the original Section 303, examination of changes brought in by the new provision specifically, and analysis of their conformity with constitutional principles. The basic untenanted rights that are subjected to scrutiny under this background are: Article 14 of the Indian Constitution—Equality Before Law—and Article 21 of the Indian Constitution—Protection of Life and Personal Liberty. Comparison with legal perspectives will also be included in the paper in order to reconsider the proportionality and the necessity behind imposing such a strict measure within the Indian legal system. It is in this regard that the paper tends to contribute to the discourse pertaining to criminal justice reform in India concerning the maintenance of law and order, vis-à-vis upholding constitutional rights.
Research Methodology
The methodology adopted for the research answered to a descriptive approach to the critical analysis to be undertaken pertaining to the proposed reinstatement of Section 303 IPC as Section 104 BNS with respect to constitutional implications, historical context, legislative intent, and comparative legal perspectives. In the backdrop of this, the present study attempts to delve deep into the possible impact, challenges, and constitutional validity of Section 104 BNS within the Indian legal framework with the aid of a comprehensive research design that includes a detailed literature review, legal analysis, comparative study, and constitutional scrutiny.
Review of Literature
Smith gives historical background of when mandatory sentencing laws were introduced and evolved in India with particular emphasis to section 303 IPC. He says that the provision stemmed from the colonial desire to regulate them so as to achieve order within penitentiaries witnessed by avert/imprisonment of violent crimes perpetrated by life-term convicts.
Jones thoroughly scrutinizes the recent international tendencies towards elimination of the legal measures of compulsory sentencing with regard to their influence on judicial choice and liberte. He compares current practices Internationally and analyzes Section 303 Indian IPC and possibilities of Section 104 BNS’s revival.
The report of the Royal Commission tends to – and rightly so – dispel the myth relating to the dangerousness of the life-term convict and reveals that majority of such prisoners does not re-offend especially when they are not placed under high-pressure situations on par with abnormal circumstances. The research outcomes also support rehabilitation measures instead of a compulsory death penalty for the life-term prisoners.
John Ralph also assesses and critiques the proposed Section 104 BNS in the light of the Supreme Court’s judgment in Mithu v. State of Punjab and holds that although there is a judicial discretion available to the new provision but the constitutional concern is not unleashed. From the article, what is being advocated for is the middle ground which will be in compliance with international human rights instruments and protecting basic rights.
What is Section 303 of IPC?
“Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death.”
Explanation: Section 303 of the Code prescribed death penalty for murder committed by a person during the course of a life sentence. The words used in the provision did not permit judges to consider any mitigating factor or the individual circumstances of the case, thereby making the death penalty mandatory in such cases. The rationale behind this provision was that it shall operate as an effective deterrent to prevent life-term convicts from indulging in heinous crimes.
Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death or with imprisonment for life and such imprisonment shall mean the remainder of that person’s natural life.
What is Section 104 of BNS?
“Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death or with imprisonment for life, which shall mean the remainder of that person’s natural life.”
Explanation: Section 104 of Bhartiya Nyaya Sanhita, in effect, re-enacts Section 303 but with modifications aimed to remedy the constitutional infirmities pointed out by the Supreme Court. Unlike Section 303, Section 104 incorporates the ameliorating factor provision, vesting courts with powers to consider mitigating circumstances before awarding the death penalty. Courts, under this section, confer on judges the discretion while considering facts of each case to sully rank upon exercising appropriate discretion. As in Section 303, the basic philosophy behind Section 104 is to deter life-term convicts from further committing serious crimes, while attempting at meting out just and proportionate punishment.
Case Law- Mithu v. State of Punjab (1983)
Mithu v. State of Punjab (1983) 2 SCC 277 is a prominent judgment of a five-judge Constitutional Bench of the Supreme Court of India effective from 1983. This was a constitutional challenge to the retributive penal Section 303 of the Indian Penal Code which proscribed the only sentence for a life convict convicted of murder of any kind as being the death sentence.
Background:
The case emanated when two life-term convicts, Mithu, and another, were sentenced to death under Section 303 IPC for the offence of murder of a fellow inmate. The Punjab & Haryana High Court confirmed the judgment on appeal.
Relevant Constitutional Provisions
Article 14 – Right to Equality before Law
Article 19 – Right to Freedom
Article 21 – Right to Life and Personal Liberty
This marked the first case in which the Supreme Court declared any provision of criminal law unconstitutional. It set the precedent that the right to life under Article 21 was a fundamental right, with implications that the arbitrary deprivation of life by the State is not admissible. The court declared that Section 303 did infringe the Articles 14, 19, 21.
Arguments Against Section 303:
The section of law being put to question now by the petitioners was Section 303, which required that prisoners serving a life sentence must be given the death penalty if the rape murder is done inside the jails. The main arguments presented were:
- Articles 14, 19 and 21: Section 303 arbitrarily denied a distinct class of prisoners the equality before law, the right to life and personal liberty, and the right to freedom of speech and expression.
- Lack of Judicial Discretion: The death sentence being compulsory had scope for judicial discretion in sentencing an individual. It even barred the court from considering any extenuating circumstances or facts of the case which may call for a less severe punishment
- Unfair presumption: It presumed that all convicts serving life term for murder do heinous, premeditated acts that need to be punished through capital punishment and it was, therefore unfair on this group of prisoners.
The petitioners submitted that Section 303 fundamentally ran against constitutional guarantees and the emerging ‘rarest of rare’ doctrine that underlines judicious discretion in sentencing capital punishment.
Judgment of the Supreme Court:
The Supreme Court tested the constitutional validity of Section 303 and held that it was violative of the guarantee of equality contained in Article 14 and 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”.
Reasoning:
It observed the clause was evidently designed at first to deter life convicts from assaulting prison staff but ended either way using words that far widened its application. It brought out the fact that motives in committing murder would range from hate, lust, sex, envy, gain or revenge, none of which need has any bearing with the fact that one is a life convict. With about 51 sections in the IPC that involve imprisonment for life, the court held it absurd to lose life for committing murder when the convict is already serving a life sentence for some other unconnected offence, including forgery, breach of trust, or the making of a false coin.
The arbitrariness of imposing the mandatory death penalty for a second conviction was noted by the court, just because, for instance, the offender was under the sentence of imprisonment for life for the first crime, whatever the reasons or the circumstances which led to the commission of the two crimes. Section 303 was thus held to “be arbitrary beyond the bounds of all reason” and struck down as invalid.
Critical Analysis of re-introducing the Section 303 of IPC as Section 104 of BNS
Section 303 was introduced in the IPC based on historical concerns over the conduct of life sentence prisoners and mainly by the prison administrations as well, where disputes and violence were viewed to be the main challenges. This provided for the death sentence to life-term convicts who committed murder while in prison, based on the perception of prison authorities and society’s belief that they have become a greater threat to them. However, leaving aside the historical justification, Section 303 ran into several constitutional hurdles over the years. In what may be called its momentous judgment in Mithu v. State of Punjab (1983), the Supreme Court of India struck down Section 303 as unconstitutional. It held that the provision contravened the fundamental rights guaranteed under Articles 14 and 21 of the Constitution relating to the Right to Equality and the Right to Life and Personal Liberty, respectively. It labeled the provision arbitrary and unjust, mandating the death penalty without allowing for judicial discretion or mitigating factors.
It is acestly encapsulated in the findings of such comparative legal analysis conducted in the UK by the Royal Commission in 1949, which belirt that the danger from lifeterm convicts is largely perceived on surmises rather than empirical evidence. As has been shown by these studies, quite frequently, murder cases committed by lifeterm convicts in jail were situational, unrelated to any generalized propensity for violence. These are those very findings that underpinned the need for nuanced legal provisions upholding principles of proportionality and individual justice. It is in answer to the past criticisms that a provision like Section 303 has been suggested to be revived under the Bhartiya Nyaya Sanhita as Section 104. Critical analysis of Section 104 discloses various flaws and omissions. Whereas Section 104 differs from its predecessor by offering the alternative option of life imprisonment to the mandatory death penalty, it also does not give adequate place to considerations for mitigating circumstances or judicial discretion at the stage of sentencing.
Moreover, Section 104 applies quite indiscriminately to any person undergoing a life sentence, without any distinction as to the nature of the offense or specific circumstances of the case. All of this nonspecific terminology is very likely to have an effect that will result in disproportionate sentencing, further defeating principles of justice and equity in the legal framework. Moreover, this provision does not address persons who are already convicted and sentenced to death but not executed, thus there are questions of consistency and fairness in sentencing provisions. Though history under Section 303 somewhat enlightens its original legislative intent, tiener the practice and subsequent case law definitely look for the reform of criminal justice in a balanced and thoughtful way. While the proposed Section 104 under the Bhartiya Nyaya Sanhita seeks to take cognizance of past criticism of Section 303, it needs careful revision to bring it in line with constitutional principles, human rights standards, and dispensation of equal justice to all coming before courts of India.
Human Rights and International Comparisons
Internationally, the trend has been toward restricting judicial discretion, reducing mandatory sentencing, and preserving individual justice. Comparative studies are important since they explain how other legal systems approach mandatory sentencing of life-term convicts. For example, in the United Kingdom the code has been changed concerning mandatory death penalty for murder and substituted with a differential mode of punishment which enables courts to consider certain aspects of the crime and the criminal (Royal Commission on Capital Punishment, 1949). This shift is in sync with other commonalities such as judicial discretion and spend for rehabilitation with other countries as stipulated in the human rights consortium (International Commission of Jurists, 2010).
In the USA, mandatory sentencing of offenders and especially the death sentence has been a subject of controversy and change. Some of the most sensationalised judgements include Furman vs Georgia in 1972 and Gregg vs Georgia in the following year of 1976; the controversy over mandatory sentencing is still an on-going debate as to its constitutionality or effectiveness in deterring crime according to Bohm (2003). These cases exemplify why it is necessary to guarantee that the legislation on sentencing complies with the constitutionally protected rights, as well as contains provisions concerning the judiciary’s discretion.
The contrary view is represented by Section 104 of the BNS, representing the punitive approach that keeps mandatory elements in sentencing. Such an approach is in contravention with the developing norms of human rights focusing on protection of human dignity, rehabilitation, and the potential for redemption even in offenders against whom draconian punishment is meted out. The fact that these factors, among others, are not fully factored into legislative reforms such as Section 104 raises concerns over the veracity of India’s commitment to international human rights standards and the progressiveness in refining its legal framework.
Recommendations for Reform
Several reforms can, however, be considered to address the shortcomings of Section 104 and align it with constitutional principles and international human rights standards:
- Increased judicial discretion: Review Section 104 and grant a wider ambit of discretion to the judges while sentencing an offender to permit consideration of mitigating circumstances, circumstances of the offense, and the individual history of the convict.
- Context-Specific Sentencing: Make provisions for sentencing as per the specific nature of the offence and conditions under which it was committed—not purely based on the previous life sentence of the convict.
- Human Rights Impact Assessments: Conduct thorough assessments, through legislative reforms Section 104, in terms of the effects of such measures on human rights, so they genuinely meet the protection and respect for dignity and human rights of all persons concerned.
- International engagement: The process of consultation with international human rights bodies and experts in the relevant field would greatly help to tap into best practices globally in the area of criminal justice reform, particularly in respect to mandatory sentencing and life imprisonment.
Conclusion
The journey of the mandatory death penalties for life-term convicts from Section 303 of the Indian Penal Code to Section 104 of the Bhartiya Nyaya Sanhita has been a mile-marker in the legal landscape of the country. What was historical in origin, embedded within colonial concerns for prison discipline, has shown its potential to stand effectively against the fiercest of judicial attacks, as in the case of Mithu v. State of Punjab, AIR 1983 SC 473. The judgment in Mithu once and for all closed the saga of mandatory death penalties being violative of the fundamental rights guaranteed to every citizen under Articles 14, 19, and 21 of the Constitution of India, laying emphasis on equality, freedom, and the right to life. What this clearly indicates is that legislation has been continuing in its effort to harmonize deterrence with constitutional safeguards by reintroducing a similar provision under Section 104 of the BNS. Still, criticism prevails that the provision has shown a lack of consideration towards the peculiar circumstances of life-term prisoners and the psychic effects of their confinement. According to scholars and other legal experts, the British judges call for a more nuanced approach that would be scratched with judicial discretion coupled with individual flows of sentences in terms of its harshness with respect to the offense committed and the peculiar facts of each case.
Comparative studies have shown that the whole framework of mandatory death penalties is perceived differently from one country to another; as such, contexts call for reforms oriented towards changing standards of justice and human rights. Reform recommendations emphasize holistic assessment of mitigating factors, psychic effects of incarceration, and proportionality in sentencing. In other words, while Section 104 of the BNS is a step in the direction of reform, fairness, justice, and humane dignity should entitle and strengthen legislative and judicial efforts in times to come. Pending the establishment of a sturdy legal framework that seeks to protect constitutional
principles and international standards, criminal justice policies will prove highly efficacious in deterring crime without sacrificing basic rights and rehabilitation within the prison system.
References:
Amnesty International. (2021). Criminal Justice Reform: Principles and Practices. Retrieved from https://www.amnesty.org.
Bohm, R. M. (2003). DeathQuest: An Introduction to the Theory and Practice of Capital Punishment in the United States. Anderson Publishing.
Government of India. (2023). Legislative Debates and Committee Reports on Bhartiya Nyaya Sanhita. Retrieved from https://www.indialaw.gov.
Human Rights Watch. (2018). Judicial Discretion and Mandatory Sentencing. Retrieved from https://www.hrw.org.
International Commission of Jurists. (2010). Judicial Independence and the Rule of Law. Retrieved from https://www.icj.org.
Jones, A. (2005). “Revisiting Mandatory Sentencing Laws.” Journal of Criminal Law and Criminology, 95(2), 456-478.
Kumar, S. (2019). The Death Penalty in India: A Critical Analysis of Supreme Court Judgments. Delhi Law House.
Mithu v. State of Punjab, (1983) 2 SCC 277.
Royal Commission on Capital Punishment. (1949). Report of the Royal Commission on Capital Punishment. Retrieved from https://www.parliament.uk.
Ralph, J. (2024). “Section 303 Of IPC: Judgement In Mithu V. State Of Punjab And The Newly Added S. 104 Of BNS”. Retrieved from https://www.livelaw.in/articles/section-104-bharatiya-nyaya-sanhita-and-supreme-court-judgment-mithu-vs-state-of-punjab-mandatory-death-sentence-252494
Smith, J. (1998). Evolution of Mandatory Sentencing Laws in India. New Delhi: Legal Publishers.
Submitted by: Avni Dubey