This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nyaya Sanhita Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.
This post analyses the issues with imposing a mandatory minimum of a whole life sentence as punishment for murder and attempt to murder by life convicts.
Cl. 102 and Cl. 107(2) of the BNS provide the punishment for the offence of murder and attempt to murder (if hurt is caused), respectively, committed by prisoners undergoing the sentence of life imprisonment (life-convict). Both sections prescribe death penalty or a whole life sentence as possible punishments. This part discusses issues with the mandatory minimum of a whole life sentence, assuming that it is different from a sentence of imprisonment for life.[1]
I. Background
Cl. 102 seeks to replace s. 303, IPC on punishment for murder by life-convict, which was declared unconstitutional by the Supreme Court in Mithu v. State of Punjab.[2] S. 303 prescribed mandatory death penalty for murder committed by a life-convict. The Court held that mandatory imposition of a death sentence restricts judicial consideration of factors relating to the crime and the criminal in individual cases. Further, it creates an unreasonable classification between convicts serving sentences other than life imprisonment and life-convicts. The section was held to be arbitrary and unreasonable as it disregarded the nature of the previous offence for which the sentence of life imprisonment was imposed while imposing the death penalty for a subsequent offence of murder.
Cl. 107 replaces s. 307 (2) IPC, which currently prescribes a mandatory death sentence for the attempt to murder by a life-convict. It is important to note that despite the ruling in Mithu on s. 303 IPC, this section is still in force.
II. Mandatory minimum of whole life sentence restricts judicial discretion and dismisses reform
Cls. 102 and 107(2) seek to address the issues raised in Mithu by introducing the whole life sentence as an alternative to the death penalty. The introduction of a mandatory minimum of a whole life sentence, restricts judicial discretion to impose a sentence of life imprisonment (with the possibility of remission), depending on individual factors such as the culpability of the convict or their probability of reform.[3] A whole life sentence extinguishes a convict’s hope of being released from prison and their reintegration into society. Therefore, a statutorily mandated whole life sentence is similar to the death penalty, as it renders the consideration of reform and rehabilitation meaningless.[4]
It is pertinent to note that whole life sentences as prescribed under ss. 376DA and 376DB of the IPC are currently under challenge before the Supreme Court.[5]
III. No valid basis for prescribing aggravated punishments for life-convicts
Cls. 102 and 107(2) do not resolve the issues regarding the arbitrary and unreasonable classification of persons serving life imprisonment as highlighted in Mithu, which are as follows:
- No reasonable basis for drawing a distinction between persons who commit murder while serving life imprisonment from those serving fixed term sentences or those who have already undergone such sentences.
- As with the IPC, the BNS proposes life imprisonment as a punishment for a wide range of non-homicidal offences.[6] Therefore, the motive and circumstances of the previous offence for which life imprisonment was prescribed as the punishment, may have no relation to the subsequent offence of murder, for which a mandatory minimum of a whole life sentence can be imposed.
- There was no data to indicate the frequency of murders by life convicts in order to justify the imposition of a mandatory minimum of whole life sentence.
Without resolving these issues as explained in Mithu, the constitutional validity of these clauses would be suspect.
IV. Cl. 107(2) collapses the distinction between the offence of attempt to murder and murder
Cl. 107(2) prescribes the punishment of death or whole life sentence in case of attempt to murder by a life convict, where hurt is caused. This raises serious concerns of arbitrariness as it erases the distinction between the offence of attempt to murder (if hurt is caused) and murder committed by a life-convict, by prescribing the same punishment. Further, the death penalty as a possible punishment for attempt to murder where hurt is caused by life-convicts has no reasonable basis and appears disproportionate. This may lead to a situation where a convict serving life imprisonment for a non-homicidal offence such as forgery, if subsequently convicted for attempt to murder resulting in simple hurt may be sentenced to death.
[1] Refer to note on Cl. 4(b), BNS at pg. 3 which discusses whether the sentence of imprisonment for life is different from imprisonment for the remainder of that person’s natural life.
[2] (1983) 2 SCC 277.
[3] In Union of India v. V. Sriharan (2016) 7 SCC 191, by a 3:2 majority, the Constitution Bench of the Supreme Court held that in offences punishable by death, constitutional courts (i.e. the Supreme Court and High Courts) can restrict the State’s powers of premature release or remission of sentence under the CrPC. Such powers may be exercised to either restrict the consideration of premature release either for a fixed term or for the whole life of the convict. Such power to restrict remission has not been extended to trial courts.
[4] Similar provision of mandatory minimum of whole life sentence has been introduced for the repeat sex offenders under Cl. 70 BNS, and for trafficking of a child below the age of 18 years on more than one occasion under Cl. 141(6) BNS and trafficking of any person by a public servant or police officer under Cl. 141(7) BNS.
[5] Mahendra Vishwanath Kawchale v. Union of India, WP (Crl.) 314 of 2022; Nikhil Shivaji Golait v. State of Maharashtra, WP (Crl.) 184 of 2022.
[6] Refer to Table 1 on offences punishable by imprisonment for life and whole life sentence at pg. 5.
