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The Supreme Court today issued notice in a plea to strike down the provision concerning the imposition of mandatory death sentence under the Scheduled Castes & The Scheduled Tribes (Prevention of Atrocities)’ Act, 1989 (SC/ST Act).
The petition filed by advocate Rishi Malhotra, who is appearing party-in-person, shines a light on Section 3(2)(i) of the SC/ST Act. This provision stipulates a mandatory death sentence if an innocent member of a Scheduled Caste or a Scheduled Tribe is convicted and is executed on the basis of false and fabricated evidence given by a non-SC/ST person.
Malhotra has contended that the same is unjust, arbitrary, oppressive and unconstitutional. Inter alia, he points out that by imposing a mandatory death sentence thus, the Court’s discretion in the matter of sentencing is taken away. The Court is thereby compelled to impose the death sentence, regardless of mitigating circumstances that may arise in the case. The Court is not made to give reasons for imposing the death sentence, and the accused is not given an opportunity to defend himself against the imposition of a death sentence.
Malhotra submits that the retention of mandatory death sentences would thus render certain provisions under the Code of Criminal Procedure (CrPC), 1973 nugatory.
“… if the mandatory death sentences are allowed to continue in statutes, it would defeat the existence of very important provisions of Code of Criminal Procedure namely 235(2) Cr.P.C. as well as sec.354 (3) Cr.P.C. both of which provides for hearing of an accused on the quantum of sentence as well as giving reasons for imposing sentence by the Court.”
The petition highlights that other laws compelling the imposition of mandatory death sentences have been struck down by Courts in the past for these reasons. In this regard, Malhotra points to the cases of Mithu v. State of Punjab and State of Punjab v. Dalbir Singh.
In Mithu’s case, the mandatory death sentence then imposed for murder by a life convict under Section 303 of the Indian Penal Code was struck down as unconstitutional. Inter alia, the following reasoning adopted in this case is noted in Malhotra’s petition,
“The legislature cannot make relevant circumstances irrelevant, deprive the Courts of their legitimate Jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death. Equity and good conscience are the hallmarks of justice;
In Dalbir’s case, Section 27 (3) of the Arms Act, imposing a mandatory death sentence for causing death by use of prohibited arms, was struck down as unconstitutional. Endorsing the view adopted in this case, Malhotra points out,
“… in Dalbir Singh’s case (supra) this Hon’ble Court categorically noted as indicated herein above that 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. It further held that a law which is not consistent with the notions of fairness while it imposes an irreversible penalty like death penalty is repugnant to the concept of right and reason.
Thus, it was held that sec.27(3) of the Arms Act which deprived the judiciary of discharging its Constitutional duties of judicial review whereby it has the power of using discretion in the sentencing procedure was unconstitutional and was thus, rightly declared void.”
In this backdrop, Malhotra highlights,
“… that as and when an occasion had arisen where the mandatory imposition of death penalty is called in question in different statutes, either this Hon’ble Court by exercising its Constitutional powers of judicial review has struck down those provisions by holding it to be unconstitutional and void or the legislature itself has amended those provisions by removing the ‘mandatory’ imposition of death penalty.“
He goes on to point out that other statutory provisions concerning the imposition of the death penalty confer on the Court the discretion to reason out whether the death penalty is appropriate on a case-to-case basis.
For instance, under Section 194 of the IPC, the penalty for causing the death of a person due to conviction and execution based on providing false/fabricated evidence is imprisonment or death. Similarly, Section 31A of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), 1985 penalises certain serious offences under the Act with death as an alternative to the prescribed term of imprisonment.
In view of these submissions, the petitioner has prayed that Section 3 (2) (i) of the SC/ST Act be struck down as unconstitutional. The petition prays for the Court to,
“...strike down the provision with regard to mandatory death penalty as prescribed under sec.3(2)(i) of the ‘The Scheduled Castes & The Scheduled Tribes (Prevention of Atrocities)’ Act, 1989, the same being ultra vires the Constitution and against the fundamental tenets of our Constitutional laws as developed by this Hon’ble Court.”