Section 303 Of IPC: Judgement In Mithu V. State Of Punjab And The Newly Added S. 104 Of BNS

As we all know, Section 303 of the Indian Penal Code, which mandates the death sentence for a person who commits murder while undergoing imprisonment for life was struck down by the Supreme Court in Mithu v. State of Punjab (1983) since it violated Article 14 and 21 of the Constitution of India.

In the new penal code, The Bharatiya Nyaya Sanhita 2023 (BNS), the old Section 303 is replaced with Section 104 as: "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."

On a first reading, it seems that the Parliament has considered Mithu and corrected the issue by giving an alternate option of life sentence instead of the mandatory death sentence in Section 303 of IPC.

Curiously enough, I suspect that the legislators have not read Mithu while re-enacting the new Section 104! Reasonable classification and right to equality and equal treatment were not the only considerations in Mithu.

Section 303 of IPC and Section 104 of BNS speak about a person who is undergoing a sentence of life imprisonment. It does not mean that the prisoner is serving a term of life for committing another homicide! There were 51 sections in IPC at the time of Mithu that carried a sentence of imprisonment for life, which included economic offences like criminal breach of trust by government servants, etc. Such persons cannot come within the purview of a hardened criminal who deserves a mandatory death sentence.

In BNS 2023, the death sentence is maintained in 13 situations, life imprisonment in 48 situations and life imprisonment for the remainder of the person's natural life in 10 situations.

The Law Commission also had the occasion to consider this aspect in which one of the considerations was to maintain the mandatory death sentence for a person who is undergoing a life sentence for committing another murder. But somehow, it did not come into the statute.

The legislative initiative for deleting Section 303 from IPC:

In the Bill that was introduced in Rajya Sabha in December 1972, the suggestion was to delete Section 303 from IPC. The Bill was referred to the Joint Committee of the Rajya Sabha and the Lok Sabha. After holding 97 sittings and taking into account various recommendations, they suggested keeping Section 303 under Section 302 by adding a sub-section. This could serve the purpose of keeping the mandatory death for a lifer, who is already undergoing it for another homicide. The Committee also recommended that the discretion should be with the court on whether to give death or not.

The Committee thus suggested a new clause 125 in the Bill, for omitting Section 303 of IPC. The Report of the Joint Committee was presented to the Rajya Sabha on January 29, 1976. But it was defeated at the time of voting. In the next election, there was a change of Government and the Bill never came up for consideration. It was in 1983 that the Supreme Court struck it down.

The reasons for incorporating Section 303 in IPC:

Hardened criminals undergoing life sentences used to have regular fights with the jailors who were mostly Englishmen. Death of jailors also occurred in prisons and it was the reason for the legislation. There was also a popular belief that 'lifers' are sort of dangerous persons. But studies have proved otherwise.

In the UK, when they wanted to consider the cases in which death penalty is to be awarded, a Royal Commission was constituted in 1949. They made an elaborate study with thousands of prisoners. In their report, the Commission said in Para 517, "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."

This was another reason to exclude the criterion for prescribing a mandatory death punishment for a Lifer.

Now the proposed Section 104 of BNS reproduced Section 303 IPC, without considering all these aspects and just by giving an alternate option of a life sentence apart from the mandatory death sentence. It has not been considered that a lifer, who is not sentenced to that term for a lesser offence than homicide, need not be given a death sentence. The life imprisonment ought to have been subject specific like Homicide or serious crimes like Kidnapping for ransom, dacoity or offence against the State, etc.

There is another folly in the Section. It only speaks about a person undergoing a life sentence. But what about a person who is a death row convict? He has already been convicted of murder but has not been granted a sentence of life imprisonment and hence is not undergoing life imprisonment!

As discussed above, the legislative intent was to prevent the killing of jailors. Hostile situations in prisons including torture from co-prisoners and prison authorities make a convict more prone to committing murders in jail, rather than the same person committing a murder while on parole. Continuous torture and incarceration in prison will also impair the minds of the convicts, making them more prone to commit heinous crimes. Hence, it should be considered as a mitigating circumstance, to avoid a death sentence rather than an aggravating circumstance to award a death sentence or a life imprisonment for the reminder of that person's natural life (as presently incorporated in Section 104 BNS). None of these aspects have been considered in the BNS.

The Sections ought to have been redrafted by:

(1) Considering the gravity of the offence in which a convict is already undergoing life sentence as an aggravating circumstance. This would have satisfied the test laid down in Bachan Singh v. State of Punjab (1980).

(2) Considering the situation and the victim of the case at hand, like whether he did it on parole or whether the victim was a jailor or any other law enforcing authority, etc.

(3) Extending the provision to persons who are sentenced to death and are awaiting execution.

Author is a practicing Lawyer in Kerala  High Court

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