Blurb: The Bharatiya Nyaya Sanhita’s Section 104 revives the constitutional infirmities of the repealed Section 303 IPC, despite its ostensible reformist intent. By maintaining mandatory sentencing without adequate judicial discretion, the provision contravenes the principles of proportionality and due process. This article critically examines its structural flaws, evaluates its implications through key judicial precedents, and calls for its removal in favor of a more rights-centric approach to criminal justice.
The newly enacted Bhartiya Nyaya Sanhita (BNS) has been brought in by the Parliament in an attempt to decolonize India’s criminal legal framework. Despite this noble intention, the Act contains provisions casting the opposite effect. Characterized mostly by cosmetic changes, at various places, the Act negates the evolution of decades long criminal jurisprudence and case laws. One such instance is the inclusion of Section 104 of the BNS (hereinafter, Section 104), the recast version of the Section 303 of the Indian Penal Code (IPC) (hereinafter, Section 303). Section 303 had been struck down by the Supreme Court (“SC”) in its landmark judgement of Mithu Singh v. State of Punjab and declared to be unconstitutional for violating Articles 14 and 21 of the Constitution. The inclusion of this new Section, despite the SC’s decision on its analogous provision, makes it imperative to interrogate the nature of the section and whether it marks a shift from the reasoning for the invalidation of Section 303.
This post discusses the text of the old (S. 303) and new (S. 104) provisions and highlights the distinction between them. It further relies upon the SC’s reasoning in Mithu Singh and extends the same to the newly enacted provision and argues for its removal on two main grounds. Firstly, it argues that Section 104 runs afoul of the proportionality standard for imposing mandatory sentencing. Secondly, it argues that Section 104 restricts judicial discretion and fails to consider the importance of mitigating factors. Further, the piece resolves the dilemma created by the court in Vikram Singh v. Union of India and calls for reframing the analysis to focus on the curbing of judicial discretion. Importantly, this post does not deal with the broader culpability of convicts and the appropriate response, and instead focuses on the lack of judicial discretion in Section 104 and highlights its failure to incorporate proportionate sentencing. The post calls for the Section’s abolition for being disproportionate and excessive.
NOTING THE DIFFERENCE (AND THE SIMILARITY)
Section 104 provides, “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.”. The provision mirrors the text of the erstwhile Section 303, which provided “Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death.” A close reading of these provisions reveals the only difference among them is that Section 104 provides for the imposition of death sentence or life imprisonment in cases of murder committed by a person serving a sentence of life imprisonment. This is contrasted with the sole option of death sentence available under Section 303. Section 104 thus, provides the additional option of imposing life imprisonment (amounting to the remainder of the person’s natural life). While this is a noteworthy change, as this post argues, it is not significant enough to wipe the stain of unconstitutionality from the face of the provision.
A key similarity between the provisions is the mandatory nature of the penal sanctions provided for in the texts of the provisions. They leave no scope for judicial discretion and provide for mandatory sentences. While Section 104 appears to grant limited discretion by providing the option of life imprisonment, as the following sections show, it still does not permit proportionate case-by-case sentencing. This similarity is crucial for it forms an essential part of the SC’s reasoning in striking down Section 303, and as this post argues, allows the reasoning to be extended to Section 104 as well.
REQUIREMENT OF PROPORTIONALITY
The Doctrine of Proportionality has long been regarded as one of the cornerstones of both constitutional and criminal jurisprudence. On the constitutional side, as held by the SC in Anuradha Bhasin v. Union of India, it provides for restrictions on state infringement of fundamental rights, requiring them to be both balanced and necessary. On the criminal law side, it provides for the requirement of proportionality between the gravity of the offence committed and the punishment imposed. This requirement has been held by the Privy Council in Bowe & Anr. v. The Queen to form a fundamental principle of just sentencing.
However, this distinction itself rests on shaky ground for any law that carries penal sanction ipso facto infringes on fundamental rights. This renders the convergence of these two aspects of proportionality in the realm of criminal sentencing. In effect, the requirement of proportionality can be understood as the constitutional safeguard and judicial discretion as the mechanism through which this safeguard operates. Both sides also find their theoretical underpinning in the requirement of due process as has been affirmed by the court in Maneka Gandhi v. Union of India. The due process requirement stretches across the constitutional and criminal aspects of proportionality and forms the common bedrock. The satisfaction of these requirements demands the exercise of reasoned judicial discretion based on the unique circumstances of every case.
The proportionality requirement was applied by the SC in Bachan Singh v. State of Punjab wherein the court affirmed the constitutional validity of the death penalty but also limited its operational scope to the “rarest of the rare” cases. This reasoning was applied by the court in Mithu Singh wherein the court held discrimination between convicts and non-convicts without any intelligible differentia to be arbitrary. Further affirming the Bachan Singh ruling, the Court held the mandatory imposition of the death penalty to be disproportionate and oppressive. In doing so, the court stressed on the importance of judicial discretion and mitigating factors. This emphasis on judicial discretion forms the core of the Court’s judgement in Mithu Singh, and while the court shied away from advancing this reasoning to mandatory life imprisonment, it remains applicable nevertheless.
The proportionality standard was recently invoked by the court while dealing with a provision similar to Section 104 in Vikram Singh v. Union of India, wherein it was held that punishments must be proportionate to the nature and gravity of the offence and affirmed that courts can interfere if the punishment is disproportionate. The court noted the outrageously disproportionate standard on the question of judicial intervention and stressed on the availability of the alternate sentence of life imprisonment available under Section 364A IPC. It accordingly distinguished the case from Mithu Singh, where death penalty was the sole option. The court then relies upon this distinction to hold the provision constitutional. By doing so, the court failed by restricting itself to the more formally outrageously disproportionate standard of proportionality as opposed to the more nuanced judicial discretion model.
The court’s reasoning in Vikram Singh emphasised on the difference among the provisions, i.e., the additional option of life imprisonment. In doing so, it overlooks the essential similarity between them, i.e., they both impose mandatory sentences and curb judicial discretion in sentencing. The imposition of mandatory sentence emerges as a diametrically opposed concept to the guarantee of due process for it fails the test of proportionality by not taking into account both aggravating and mitigating factors. Remedying this lack of judicial discretion in sentencing is the next step in effectuating the due process guarantee central to our rights-based framework.
CURBING JUDICIAL DISCRETION
The issue of judicial discretion in sentencing, especially the lack of authoritative guidelines on the matter, has long been an issue of debate and discussion. Section 354(3) of the Criminal Procedure Code (Section 393 of the BNSS) provides the court with this discretion and casts an obligation to record reasons for the sentence awarded. This discretion cannot be arbitrary, has to be based on cogent reasons in writing and flows from the unique facts and circumstances of each case. The importance of judicial discretion in sentencing was stressed by the SC with a special focus on the accounting of mitigating factors.
While this exclusion of judicial discretion is complete in the case of Section 303, in the case of Section 104, it is just a step short of complete. Section 104 provides the court with the discretion to choose between the extreme options of death sentence and life imprisonment for the remainder of the person’s natural life. Given the holding of the court in Bachan Singh, this translates to a near mandatory imposition of life imprisonment. This makes it imperative to focus on the lack of judicial discretion in the provisions, i.e., the commonality between them. The exclusion of judicial discretion effectively imposes a straightjacket sentence and refuses to take into account any mitigating or aggravating factors or peculiar circumstances in the case.
REFRAMING THE ANALYSIS – BRINGING IT BACK TO PROPORTIONALITY
The imposition of the straightjacket sentence can be overcome only by reframing the focus on the requirement of judicial discretion in sentencing. The Patna HC in Confederation of Indian Alcoholic v. State of Bihar has done just this. The court struck down provisions of the Bihar Excise Act on account of it being disproportionate and restricting judicial discretion. The impugned Act provided for mandatory minimum punishment of 10 years for possessing alcohol and 5 years for consuming it in a public place. The decision takes particular note of the mandatory nature of these sentences, curbing judicial discretion and the resultant lack of proportionality.
This ruling has been issued in the case of a statute which does not prescribe the death penalty, effectively lowering the threshold requirement for the doctrine of proportionality to operate. This shift represents the evolution in fundamental rights jurisprudence since the decision in Mithu Singh was delivered and a positive step in the creation of a right centric framework. This case is perhaps the first incident wherein penal clauses have been set aside by the court under the doctrine of proportionality despite no involvement of a death penalty clause. The decision not only provides for holding mandatory sentences to be disproportionate but also mandatory minimum sentences and further extends the logic of the doctrine of proportionality.
It is also important to highlight that the doctrine of proportionality calls for taking into account the gravity of the offence committed and not just the sentence imposed. The text of Section 104 provides for it to be applicable on people serving a sentence of life imprisonment and makes no reference as to the subject matter of the offence. This means that all offences which carry life imprisonment (58 offences under BNS) shall make the person liable to be included under the ambit of Section 104. This again runs afoul of the principle of proportionality by treating economic offenders, hardened criminals and others within the same frame without any regard to the nature or gravity of the offence.
THE WAY AHEAD
The new provision, despite providing the option of life imprisonment, retains the essential flaw of the old – the mandatory imposition of a straightjacket sentence. The retention of this essential flaw leaves the new provision vulnerable to be assailed by the reasoning adopted by the court in Mithu Singh and accordingly this post calls for its abolition. This article presents that satisfying the requirement of proportionality is only possible through reasoned judicial discretion and accordingly argues for reframing the analysis. In doing so, the article presents the essential nexus between proportionality, due process and judicial discretion. The Patna HC’s decision marks the step towards a more expansive and rights centric understanding of proportionality. This rests on the bedrock guarantee of due process and is made possible by focusing on judicial discretion and individual facts of the case. In conclusion, Section 104 resembles old wine in a new bottle as it remains tethered to the same constitutional infirmities, warranting its reconsideration and removal.
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