Judgment

CHANDRACHUD, CJI. (for himself and on behalf of MURTAZA FAZAL ALI, TULZAPURKAR AND VARADARAJAN, JJ.) :- The question which arises for consideration in these proceedings is whether Section 303 of the Indian Penal Code, infringes the guarantee contained in Art. 21 of the Constitution which provides that "No person shall be deprived of his life or personal liberty except according to procedure established by law".

2. Section 300 of the Penal Code defines Murder, while Sec. 302 prescribes the punishment for murder. Section 302 reads thus:

"302. Punishment for murder - whoever commits murder shall be punished with death, or imprisonment few life, and shall also be liable to fine."

Section 302 is not the only section in the Penal Code which prescribes the sentence of life imprisonment. Literally, it is one of the fifty-one sections of that Code which prescribes that sentence. The difference between those sections on one hand and Section 302 on the other is that whereas, under those sections life imprisonment is the maximum penalty that can be imposed, under Section 302 life imprisonment is the minimum penalty which has to be imposed. The only option open to a Court which convicts a person of murder is to impose either the sentence of life imprisonment or the sentence of death. The normal sentence for murder is life imprisonment. Section 354(3) of the Code of Criminal procedure. 4913 provides :

"354 (3). When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded. and, in the case of sentence of death, the special reasons for such sentence." While upholding the validity of the death sentence as a punishment for murder, a Constitution Bench of this Court ruled in Bachan Singh, (1980) 2 SCC 684 : (AIR 1980 SC 898), that death sentence can be imposed in a very exceptional class of cases -"the rarest of rare cases".

3. The Indian Penal Code was passed in 1960. The framers of that Code achieved a measure of success in classifying offences according to their subject-matter, defining them with precision and in prescribing what. in the context of those times was considered to be commensurate punishment for those offences. One of the problems which they had to deal with was as to the punishment which should be prescribed for the offence of murder committed by a person who is under a sentence of life imprisonment. They solved that problem by enacting Section 303, which reads thus :

"303. Punishment for murder by life convict. Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death."

The reason, or at least one of the reasons why the discretion of the Court to impose a lesser sentence was taken away and the sentence of death was made mandatory in cases which are covered by Section 303 seem to have been that if, even the sentence of life imprisonment was not sufficient to act as a deterrent and the convict was hardened enough to commit a murder while serving that sentence, the only punishment which he deserved was death. The severity of this legislative judgment accorded with the deterrent and retributive theories of punishment which then held sway. The reformative theory of punishment attracted the attention of criminologists later in the day. How sternly the legislature looked at the offence of murder committed by a life convict can be gauged by the fact that in the early history of the Code of Criminal Procedure, unlike as at present, if a person undergoing the sentence to transportation for life was sentenced to transportation for another offence, the latter sentence was to commence at the expiration of the sentence of transportation to which he was previously sentenced, unless the Court directed that the subsequent sentence of transportation was to run concurrently with the previous sentence of transportation. It was in 1955 that Section 397 of the