In the landmark case of Mithu v State of Punjab[1] (hereafter, Mithu), the 5-judge bench of the Supreme Court of India struck down Section 303 of the Indian Penal Code, 1860 as being unconstitutional. In this case, the petitioner challenged Section 303 which 'provides for punishment of mandatory death penalty to the person who commits murder while undergoing life imprisonment'.[2] It was held that Section 303 violates equality guaranteed under Article 14 and rights conferred under Article 21.

This case note will focus on questions related to Article 14 which the court dealt with while deciding the case. Firstly, it will give an overview of the judgement and analyse the case. Secondly, it will talk about the impact of Mithu on some subsequent judgements on the mandatory death penalty. Lastly, it will talk about the Law Commission report and Statues on the mandatory death penalty.

Overview Of The Judgement
The case involved challenges to Section 303 which is applicable not only to murder convicts charged for life imprisonment under Section 302[3] but also to convicts under 50 other offences that have life imprisonment as a form of punishment. Section 303 was uniformly applicable to all the 51 offences under IPC which also includes offences like sedition[4] and forgery[5]. The convicts under these offences were subjected to the mandatory death penalty in case they commit a murder while undergoing imprisonment for life.

The court used the 'reasonable classification test' to check whether section 303 is in consonance with Article 14. The questions it delves into were: Whether there is an intelligible basis to differentiate between life convicts and non-life convicts who commit murder? Whether this differentiation warrant making the death penalty mandatory in the first case and optional in the latter? Is there any rational nexus between such classification and the object of law?

It is important here to consider the opinion of the 42nd Law Commission related to Section 303. According to it, this section was enacted keeping in view only one class of cases, wherein a life convict commits a murder of a jail official.[6] The State agrees with this interpretation and argues the case using it. The Court states that in such cases the classification does not have any nexus with the object of the law.

It gives examples where a life-convict inside the prison or outside on parole might kill someone in grave and sudden provocation due to the severity of the situation. In such a case even that life convict will be subjected to the mandatory death penalty due to the application of Section 303.[7] This clearly shows the overinclusive nature of Section 303. The over inclusivity is a ground on which classification may fail the rational nexus test as was acknowledged in the case of Navtej Singh Johar v. Union of India.[8]

The Court further talks about how Section 303 takes away judicial discretion which is an important part of the Indian criminal system.[9] Further, it denies to a person charged under Section 303 the benefit under Section 235 (2) to get heard on the question of sentence and Section 354(3) which imposes an obligation on the Court to state a special reason for giving the death penalty.[10] The Court found the deprivation of these rights and safeguards to be unjust and arbitrary.

Section 303 was also against precedents such as Jagmohan Singh v. State of UP[11] and Bachan Singh vs the State Of Punjab[12] where it was held that the death penalty will be given by a court only after balancing the statutory aggravating and mitigating factors of an offence.[13] In Mithu, the Court acknowledges this proposition and states that the gravity of an offence cannot be determined without looking at the circumstances in which it was committed.

The Court states that it found no reason for making the death penalty mandatory for a life convict committing murder and optional for a non-life convict.[14] Therefore, it rightly holds that since the classification did not have any nexus with the object of the law, the said provision violated Article 14.
  
Impact On Subsequent Judgements
In Mithu, the Court held that a person charged for the offence of murder (including a life convict who commits murder subsequently) will not be tried under Section 302.

The Mithu judgement had an immediate impact on some subsequent cases and the court struck down the conviction of an individual on a mandatory death penalty charge.[15]

In the case of Indian Harm Reduction Network v. The Union of India[16], Section 31 A of the NDPS, Act[17] was challenged before the Bombay High Court on the ground that it was in violation of Articles 14 and 21.The section provided for the mandatory death penalty at the time of second conviction for specified offences in the Act.

The Court acknowledged that Mithu was the only authority present at that time related to the validity of the provision containing the mandatory death penalty. The Court held that the classification sought had a rational nexus with the object of the Act and hence was not violative of Article 14. However, the Court struck down the provision as violative of Article 21 on the basis of developments in Mithu and other cases.

Similarly, in the case of State Of Punjab v. Dalbir Singh[18], Section 27 (3) of the Arms, Act[19] was challenged as violative of Articles 14 and 21. The Court accepts the claim and cites Mithu as a landmark authority on this position which has also been used in other jurisdictions worldwide.

Legislative Development & Law Commission Reports
Though Mithu acts as an authority that struck down the mandatory death penalty under Section 303, IPC[20] as violative of the Constitution in 1983, we still have certain statutes like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989[21] and recently introduced Anti- Maritime Piracy Bill, 2019[22] which provides for the mandatory death penalty.

The Court in Mithu states that:
A savage sentence is an anathema to civilized jurisprudence of Article 21.

It also talks about how the deterrent or retributive theory which was prevalent earlier has been superseded by reformative theory.[23] Even the Law Commission in 262nd Report acknowledged this line of thought and recommended abolition of the death penalty for all crimes except terrorism-related offences and waging war.[24] Although no major development has taken place regarding it, we still see considerable changes. The parliament did amend Section 31 A of NDPS, Act[25] and Section 27 (3) of Arms, Act[26] which were struck down by courts as stated in this paper earlier. The amendments changed the mandatory death penalty provisions in respective acts and made it optional.

Conclusion
The Mithu judgement rightly acknowledges how an overinclusive law can have a detrimental impact on a group that the law does not intend to govern. It has contributed greatly to the debate around the mandatory death penalty and influenced subsequent judgements of courts in India and other jurisdictions. However, Section 303 is still a part of IPC.

Even some other statutes provide for the mandatory death penalty which also includes the recently introduced Anti-Maritime Piracy Bill, 2019. The provision of the mandatory death penalty in these statutes is in direct contravention of the Supreme Court's ruling in Mithu and Bachan Singh.

End-Notes:

1. Mithu v State of Punjab, (1983) 2 SCC 277
2. Indian Penal Code 1860, S 303
3. Indian Penal Code 1860, Punishment for murder (judges have choice under this section between death penalty and imprisonment for life)
4. Indian Penal Code 1860, S 124 A
5. Indian Penal Code 1860, S 467
6. Indian Law Commission Report, (Law Com Report No. 42, 1971) [ para 16.17, p. 239]
7. Mithu (n 1) [289]
8. Navtej Singh Johar v. Union of India, AIR 2018 SC 4321
9. Mithu (n 1) [ 292, 293]
10. The Code of Criminal Procedure, 1973, S 235 (2) and 354 (3)
11. Jagmohan Singh v. State of UP, (1973) 1 SCC 20
12. Bachan Singh vs State Of Punjab, (1980) 2 SCC 684
13. Aparna Chandra, 'Limitation Analysis by the Indian Supreme Court' [2020] Cambridge University Press, 526 < doi:10.1017/9781108596268.009> accessed 12 May 2021
14. Mithu (n 1) [293, 294]
15. Amnesty International India and People's Union for Civil Liberties, 'Lethal Lottery: The Death Penalty in India' [2008], 93
16. Indian Harm Reduction Network v. The Union of India, 2011 SCC OnLine Bom 715
17. Narcotic Drugs and Psychotropic Substances Act, 1985, S 31 A
18. State Of Punjab v. Dalbir Singh, 2012 SCC OnLine SC 107
19. Arms Act, 1959, S 27(3)
20. Indian Penal Code, 1860, S 303
21. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S 3(2) (i)
22. Anti- Maritime Piracy Bill, 2019, S 3 (ii) [as introduced in Lok Sabha]
23. Mithu (n 1) [284]
24. Indian Law Commission Report, (Law Com Report No. 262, 2015) [ para 7.2.4, p. 217]
25. The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2014, S 31 A [phrase "shall be punishable with death" was replaced with "shall be punished with punishment which shall not be less than the punishment specified in section 31 or with death"]
26. The Arms (Amendment) Act, 2019, S 27 (3) [phrase "shall be punishable with death" has been substituted with "shall be punishable with imprisonment for life, or death and shall also be liable to fine"]