IMPORTANT POINTS
1. Mandatory death penalty has been found to be constitutionally invalid in various jurisdictions where there is an independent judiciary and the rights of the citizens are protected in a Constitution.
2. A law which is not consistent with notions of fairness while it imposes an irreversible penalty like death penalty is repugnant to the concept of right and reason.
3. By imposing mandatory death penalty, Section 27(3) of the Act runs contrary to those statutory safeguards which give judiciary the discretion in the matter imposing death penalty. Section 27(3) of the Act is thus ultra vires the concept of judicial review which is one of the basic features of our Constitution.

54. Accordingly, death penalty was set aside by the majority and the matter was remitted for further proceeding. Here also Chief Justice Burger, Justice Blackmum, Justice White and Justice Rehnquist gave strong dissents, opining that the statute was constitutionally valid.

55. Again similar question came up before the U.S. Supreme Court in George Summer vs. Raymond Wallace Shuman,12 483 US 66 = 97 L Ed 2d 56. This case came from Nevada which mandated death penalty for murder committed by a person while serving a life sentence without the possibility of parole. The statutory provision considered in this case is somewhat akin to Section 303 of Indian Penal Code. Justice Blackmum delivering the majority opinion held that Nevada statute was unconstitutional being violative of Eighth and Fourteenth Amendments. The learned Judge held:-

“......This Court has recognized time and again that the level of criminal responsibility of a person convicted of murder may vary according to the extent of that individual’s participation in the crime. See, e.g., Tison v Arizona, 481 US 137, 95 L Ed 2d 127,107 S Ct 1676 (1987); Enmund Florida, 458 US 782, 73 L Ed 2d 1140, 102 S Ct 3368 (1982). Just as the level of an offender’s involvement in a routine crime varies, so too can the level of involvement of an inmate in a violent prison incident. An inmate’s participation may be sufficient to support a murder conviction, but in some cases it may not be sufficient to render death an appropriate sentence, even though it is a life-term inmate or an inmate serving a particular number of years who is involved.

......The circumstances surrounding any past offense may vary widely as well. Without consideration of the nature of the predicate life-term offense and the circumstances surrounding the commission of that offense, the label “life-term inmate” reveals little about the inmate’s record or character. Even if the offense was first- degree murder, whether the defendant was the primary force in that incident, or a no triggerman like Shuman, may be relevant to both his criminal record and his character. Yet under the mandatory statute, all predicate life-term offenses are given the same weight - a weight that is deemed to outweigh any possible combination of mitigating circumstances.”

56. The Court insisted on a guided discretion on the statute by holding:-

“...state interests can be satisfied fully through the use of a guided-discretion statute that ensures adherence to constitutional mandate of heightened reliability in death-penalty determinations through individualized sentencing procedures. Having reached unanimity on the constitutional significance of individualized sentencing in capital cases, we decline to depart from that mandate in this case today. We agree with the courts below that the statute under which respondent Shuman was sentenced to death did not comport with the Eighth and Fourteenth Amendments.”

57. This judgment was also dissented by Justice White, Chief Justice Rehnquist and Justice Scalia.

58. In this connection if we look at some of the judgments delivered by the Privy Council we would find the same principle has been followed in Reyes vs. The Queen,13 (2002) 2 AC 235 = (2002) UKPC 11. In Reyes (supra) the appellant was convicted and sentenced to death under the laws of Belize he committed the murder by shooting. The Privy Council granted leave to the accused to raise two issues on constitutional points - (i) mandatory death penalty infringes both the protection against subjection to inhuman or degrading punishment or other treatment in violation of rights under Section 7 of the Constitution of Belize and also in violation of the right to life protected under Sections 3 and 4 of the said Constitution. The second issue was on the constitutionality of hanging. Section 4(1) and Section 7 of the Constitution of Belize are as follows:-

“4(1). A person shall not be deprived of his life intentionally save in execution of the sentence of a co