In the landmark case of Mithu v State of Punjab
 (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'. 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 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 and forgery. 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. 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. 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
The Court further talks about how Section 303 takes away judicial discretion
which is an important part of the Indian criminal system. 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. The
Court found the deprivation of these rights and safeguards to be unjust and
Section 303 was also against precedents such as Jagmohan Singh v. State of UP
 and Bachan
Singh vs the State Of Punjab
 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. 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. Therefore, it rightly holds that since the classification did not
have any nexus with the object of the law, the said provision violated Article
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
In the case of Indian Harm Reduction Network v. The Union of India
31 A of the NDPS, Act 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
, Section 27
(3) of the Arms, Act 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 as violative of the Constitution in 1983, we
still have certain statutes like the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and recently introduced Anti- Maritime
Piracy Bill, 2019 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. 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. Although no major development has taken place regarding it, we still
see considerable changes. The parliament did amend Section 31 A of NDPS,
Act and Section 27 (3) of Arms, Act 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.
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.
- Mithu v State of Punjab, (1983) 2 SCC 277
- Indian Penal Code 1860, S 303
- Indian Penal Code 1860, Punishment for murder (judges have choice under
this section between death penalty and imprisonment for life)
- Indian Penal Code 1860, S 124 A
- Indian Penal Code 1860, S 467
- Indian Law Commission Report, (Law Com Report No. 42, 1971) [ para
16.17, p. 239]
- Mithu (n 1) 
- Navtej Singh Johar v. Union of India, AIR 2018 SC 4321
- Mithu (n 1) [ 292, 293]
- The Code of Criminal Procedure, 1973, S 235 (2) and 354 (3)
- Jagmohan Singh v. State of UP, (1973) 1 SCC 20
- Bachan Singh vs State Of Punjab, (1980) 2 SCC 684
- Aparna Chandra, 'Limitation Analysis by the Indian Supreme Court'
 Cambridge University Press, 526 < doi:10.1017/9781108596268.009>
accessed 12 May 2021
- Mithu (n 1) [293, 294]
- Amnesty International India and People's Union for Civil Liberties,
'Lethal Lottery: The Death Penalty in India' , 93
- Indian Harm Reduction Network v. The Union of India, 2011 SCC OnLine Bom
- Narcotic Drugs and Psychotropic Substances Act, 1985, S 31 A
- State Of Punjab v. Dalbir Singh, 2012 SCC OnLine SC 107
- Arms Act, 1959, S 27(3)
- Indian Penal Code, 1860, S 303
- Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989, S 3(2) (i)
- Anti- Maritime Piracy Bill, 2019, S 3 (ii) [as introduced in Lok Sabha]
- Mithu (n 1) 
- Indian Law Commission Report, (Law Com Report No. 262, 2015) [ para
7.2.4, p. 217]
- 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"]
- 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"]