[This blog has been authored by Akshansh Pandey & Shivang Srivastava. They are Students at Gujarat National Law University, Gandhinagar]

[The authors are the Winners of the 2nd GCRCJS Criminal Law Essay Writing Competition, 2024]

Introduction

On July 1, 2024, India witnessed the largest reform in the criminal justice system, wherein it implemented the Bharatiya Nyaya Sanhita [“BNS”], a legislative codification that deregulated the colonial Indian Penal Code of 1860 [“IPC”]. Such an important landmark marked a change, from the old legal framework to a more modern and elaborate code in line with the requirements of the present-day contemporary society, and emerging needs. The BNS unifies over 500 IPC sections into fewer than 400. It further reforms long-debated legal provisions.

A noteworthy reform here in the BNS is Section 104, prescribing punishment for murder committed by life convicts. This section supersedes Section 303 of the IPC, as held unconstitutional by the Supreme Court of India in the celebrated case of Mithu v. State of Punjab [“Mithu”]. Section 303, IPC had imposed mandatory capital punishment upon life convicts who had committed murder, while either in prison or on parole, without judicial discretion. The Supreme Court of India held that such an absolute mandate was draconian and unjustified inasmuch as it completely ignored the different facts and circumstances of each case, hence violating the constitutional guarantees under Article 14 and Article 21 of the Constitution of India. The Court further pointed out that Section 303 worked a flagrant classification concerning murders by life convicts with those other murderers without any rationale. Its ruling, therefore, balanced legal and ethical principles by underlining judicial discretion and procedural safeguards in terms of the administration of justice.

In this context of the Supreme Court judgment, it became quite necessary to remind the readers of this very same section under the umbrella of Section 104 of the BNS, which also throws a doubt on the section’s necessity and its constitutionality. This article, taking into consideration the background and law concerning Section 303, continues further to discuss the judgment passed by the Supreme Court in the case of Mithu v. State of Punjab and critically portrays the question of whether Section 104’s reinstatement is justifiable. This section will also discuss the more general consequences of these changes in broader Indian criminal justice discourse.

Overview of the Provisions

To critically analyse these said provisions, one must understand these provisions independently,

1. Section 303 Indian Penal Code (1860):

“Whoever being under sentence of imprisonment of life commits murder shall be punished with death.”

1. Section 104 of the Bhartiya Nyaya Sanhita (2023):

“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.”

It is prima facie evident that the provision of section 104 of BNS finds its roots in the skeletons of the corresponding provision of its archaic predecessor.

However, one major instrument of change here is the inclusion of the discretionary power granted to the judicial establishments of the country by the lawmakers. While the IPC’s provisions left no alternative except granting the punishment of death to life convicts who have been proven to have committed murder, BNS grants discretionary power to the Hon’ble Judges of the country to adjudge matters pertaining to S.104 BNS and sentence the convicts to imprisonment for life, or in the most gruesome and heinous case, to adjudge the finality of the capital punishment.

Background of Mithu v State of Punjab

Mithu v. State of Punjab, in 1983, directly challenged Section 303 of the IPC, on grounds of being violative of constitutional provisions, which then ran as a rule without a second: It meted out capital punishment for murderers who killed someone while being under imprisonment for another conviction. Section 303 of the IPC reads:

“Whoever, having been convicted of a crime punishable with imprisonment for life, commits murder commits abetment of such murder, and shall be punished with death.”

The very basic plea of the petitioners was that Section 303 is arbitrary and unfair, a violation of the fundamental rights of the petitioners flowing from Articles 14 and 21 of the Indian Constitution. Article 14 guarantees equality before the law, and Article 21 says that the right to life and personal liberty shall not be deprived except according to procedures established by law which are just, fair, and reasonable.

The main question of concern was whether Section 303 breached these constitutional protections by providing for a mandatory death sentence, irrespective of circumstances. Petitioners argued that the classification of “life convicts guilty of murder” was arbitrary and had no rational nexus to the aim of the law – deterrence. It did not, they argued, comply with the principles of fairness and reasonableness contemplated by Article 21, for it deprived life without reference to mitigating circumstances.

The respondent, however, relied on the Bachan Singh v. State of Punjab [“Bachan Singh”], a precedent that had upheld the constitutionality of the death penalty only in “the rarest of rare” cases. It was contended by the defence that Section 303 merely applied this principle to life convicts as a deterrent.

The Supreme Court came out with a judgment which declared Section 303 unconstitutional. The court further reasoned that the mandatory imposition of the death penalty was violative of the procedure contemplated by Articles 14 and 21. The mandatory imposition of a sentence, it said, is an unjust legal order; judicial discretion should have been provided, and individual circumstances ought to have been taken into consideration. It characterised such an automatic sentence, as provided for under Section 303, as arbitrary, oppressive, and violative of constitutional safeguards, declaring it to be void. All cases of murder by a life convict would henceforth be governed by Section 302, under which discretion is left with the Courts.

Issue at hand

The issue at hand is the question that, if the decision of a 5-Judge Bench of the Apex Court, of striking down section 303 IPC has been an established law for more than 40 years, why have the lawmakers of the country revived it from its grave without due diligence of the said case, and was it in accordance with the constitutional values to do so?

Analysis

In the light of the Mithu case, the lawmakers modified section 104 BNS so as to provide alternatives as opposed to the archaic section 303 IPC, and it does so by allotting the option to sentence to imprisonment for life[1]. Such an improvement over its predecessor definitely deserves its laurels for getting over the issue of additional deterrence to a life convict while simultaneously abiding by the guidelines as laid by the Apex Court in the case of Bachan Singh.

However, while prime facie the legislature preserves judicial discretion, in a much more real sense, the punishment for imprisonment for life much like death penalty completely overrides and essentially takes away any hope for the convict’s reform, rehabilitation and re-integration into society which strays away from the reformative theory of justice that has been followed in the Indian legal atmosphere.

Another aspect that must be brought to attention is the discrepancies that have been ignored by the lawmakers, as given in the Mithucase. It reflects on the unreasonableness of the classification between those who are life convicts on the account of murder and those who are life convicts for crimes for which the punishment is of an aggravated form. This particular issue was one of the cornerstones of the Apex Court’s decision that the issue of unconstitutionality arose because in BNS (then IPC), various provisions, even offences of non-homicidal or economic nature, are punishable with life imprisonment.[2]

Therefore, it essentially erases that distinction. An illustration can be drawn for the arbitrariness herein that a person drawn into life imprisonment for an economic offence be held on worse footing with respect to S.104 BNS than another person sentenced to 10 years under the offence of murder or culpable homicide.

In the case of Sunil Batra vs. Delhi Administration, which dealt with the question of whether a person awaiting death sentence can be kept in solitary confinement or not,the court held

“That the constitution doesn’t follow the ‘due process’ mechanism as outlined in the American Constitution. The Indian Constitution follows the principle that whatever is an outrageous punishment, is unusual in a scandalising nature, is absolutely cruel and pays no consideration to the rehabilitation of an offender, is considered unreasonable and arbitrary and therefore is violative of Articles 14 and 21 of the Indian Constitution.”

In this precedence, the fact is clear that Section 104 BNS does not pay heed to the reformative nature of the Indian Jurisprudence.

Additionally, in the case of Rajendra Prasad vs. State of Uttar Pradesh, the Apex Court held that “the death penalty must only be imposed in cases where the individual is proved to be such a gruesome and horrific threat to the security of society and people who are a part of society that the only measure of deterrence and retribution is capital punishment.”

What must also be considered is the principle laid behind Section 303 IPC:

“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.”

The condition precedent to giving birth to the section in the first place does not exist anymore, and must be held null and void, as independent India does not have to suffer classism from the colonial Englishmen and their hatred.

As discussed above, the legislative intention behind the provision was to prevent the killing of jail officials, but what must be taken into consideration is that adverse situations in jail make a convict more prone to commit murder and impair the mind of the convict. Hence, rather than being punished so aggressively, it has to be considered as a mitigating factor under the given circumstances. However, none of these aspects have been incorporated in section 104 of BNS.

Conclusion

In conclusion, even though Section 104 of the BNS reflects a major improvement over its archaic predecessor, Section 303 of the IPC, by granting judicial discretion, the questions pertaining to fairness and reformative justice still persist. The retention of punishment of life imprisonment without the possibility of rehabilitation and the arbitrary classification of convicts and their crimes contradict the principles established by the Supreme Court in Mithu v. State of Punjab. Moreover, the societal context that urged the incorporation of Section 303 no longer exists, making its reincarnation under Section 104 questionable. Therefore, it is of utmost importance that the emphasis should shift from deterrence to reform, thereby aligning with the progressive ideals of modern Indian jurisprudence. Thus, it is necessary to re-evaluate Section 104’s place in the criminal justice system, ensuring that it respects both constitutional values and simultaneously the need for a rehabilitative approach.

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[1] In the recent case of Shatrughna Baban Meshram vs. State of Maharashtra (2021) 1 SCC 596, a three-judge bench of the Supreme Court, confirmed that a sentence of imprisonment for life together with a statutory prescription that it “shall mean [imprisonment for] the remainder of that person’s life” will certainly restrain the executive from exercising its powers of remission and commutation of sentences. Similarly, in the case of Swamy Shraddananda (2) vs. State of Karnataka (2008) 13 SCC 767.

[2]Indian Penal Code 1980, s. 75, 124A, 128, 130, 222, 225, 232, 238, 255, 313, 314, 409, 412, 413, 467, 472, 474, 475, 477, 489-A, 489-B and 489-D AND Bhartiya Nyaya Sanhita 2024, s. 13, 89, 90, 152, 156, 158, 178, 179, 181, 260, 263(e), 316(5), 317(3), 338, 339, 341, 342 and 343