CRITICAL ANALYSIS OF MANDATORY DEATH PENALTY UNDER THE SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1989

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1 South -Asian Journal of Multidisciplinary Studies (SAJMS) ISSN: :SJIF:2.246:Volume 4 Issue CRITICAL ANALYSIS OF MANDATORY DEATH PENALTY UNDER THE SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1989 NirajMeena and Pankaj Meena ** Abstract In Indiadeath penaltyis given to the convicts only in case of heinous crime like murder, rape, waging war against state, abetting the suicide of an unsound person or a child or abetting mutiny by a number of armed forces. Indian Judiciarybelieves in the rehabilitation of the accused and in deterrence which act as the instrument which restricts the criminals from committing the crime in fear of death penalty. The provisions related to mandatory death penalty should be replaced by may be punishable with death penalty or life imprisonment. Till now all the statutes dealing with mandatory death penalty has either been held unconstitutional or it has beenreplaced by may be punishable with death or life imprisonment except for Section 3(2) (i) of SC/ST Prevention Act. Therefore, this research paper deals with the constitutionality of this impugned section. 1. PREFACE: In India death sentence is given for various gravest act done by the convict. This include act against the state (waging war), robbery with murder, abetting mutiny by a number of armed forces and abetting the suicide of an unsound person or a child. It is only given on those cases where the statute provide for it. It is generally given only in rarest of rare cases. The National Crime Records Bureau 1 (NCRB) has no records of execution which has taken place before After 1995 around 3,751 convict were commuted from death penalty to life imprisonment. 2 Whenever death sentence is given to any convicted person special reason has to be given under Section 353(3) 3 of Criminal Procedure Code. NirajMeena, 4th Year (U.G),B.A,L.L.B (Business Laws Hons),National Law University, Jodhpur, E- mail-nlu.niraj@gmail.com ** Pankaj Meena, LL.M (Criminal Law), Indian Law Institute, New Delhi, pankaj.nlu.jdh@gmail.com 1 The National Crime Records Bureau which is an Indian Government agency created in 1986, who is responsible for collecting data and analysing those data Years: 1,303 Death Sentences, 3 Executions, Chaitanya Mallapur&DevanikSaha, July 29, 2015, < (lasted visited on September 04, 2016) 3 Code Of Criminal Procedure, 1973, Section 353(3):Where the judgment or the operative part thereof is read out under clause (b) or clause (c) of sub- section (1), as the case may be, it shall be dated and signed by the Copyright Universal Multidisciplinary Research Institute Pvt Ltd

2 In India there are various statutewhich entail death penalty such asindian Penal Code, 1860, Army Act, 1950, the Air Force Act, 1950 and the Navy Act 1956, The Commission of Sati (Prevention) Act, 1987, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Explosive substance Act, 1908, Arms Act, 1959, Unlawful Activities (Prevention), 1967, Defence of India Act, 1971, The Narcotic Drugs and Psychotropic Substances Act, 1985 etc. Now Prevention of Terrorism Act (POTA) and Terrorist and Disruptive Activities (Prevention) Act (TADA) has been repealed. This research paper deals with mandatory death penalty under Section 3 (2) (i) of SC/ST Prevention Act, whose constitutionality has not been challenged before any court.all theother statutes which deals with the mandatory death penalty is either has been held unconstitutional or amended later on. 2. THE SUPREME COURT RULED ON THE CONSTITUTIONAL VALIDITY OF DEATH PENALTY Article 21 of the constitution of India ensures for Protection of life and personal liberty. It ensures that no person shall be deprived of his life or personal liberty except according to procedure established by law. 4 In Jagmohan Singh v. State of UP, 5 the constitutionality of death penalty under Section 302, IPC for the offence of murder was challenged on the grounds that it extinguished the right to freedom under Article 19(1) (a) to (g). It was also assailed under Articles 14 6 and 21 7 for investing wide and unguided discretion in Judges in choosing life imprisonment or death for the crime of murder. A constitutional bench of the Supreme Court upheld the law presiding officer in open Court, and if it is not written with his own hand, every page of the judgment shall be signed by him. 4 Bachan Singh v. State of Punjab, (1980) 2 SCC 684 Bhagwati J. was of the opinion: The existence of a rational legislative purpose for imposing the sentence of death is a necessary condition of its constitutionality but not a sufficient one. The death penalty for theft would, for example, deter most potential thieves and may have a unique deterrent effect in preventing the commission of the offence; still it would be wholly disproportionate and excessive, for the social effect of the penalty is not decisive of the proportionality to the offence. 5 (1973) 1 SCC 20 The Court observed: The Court declared that the exercise of judicial discretion on well recognised principles depending on the facts of each case. The Supreme Court has favoured death penalty in grave cases where it is a crime against society and the brutality of the crime shocks the conscience of the Court. 6 Constitution of India, Article 14-Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. 7 Constitution of India, Article 21-Protection of life and personal liberty:no person shall be deprived of his life or personal liberty except according to procedure established by law.

3 affirming judicial discretion in sentencing.the Supreme Court also laid down that the death sentence ought not to be given except in the rarest of rare cases THE HON BLE SUPREME COURT S VIEW ON MANDATORY DEATH PENALTY A. Mandatory Death Penalty Under Section 303 Indian Penal Code(hereinafter referred to as IPC): In Mithuv. State of Punjab 9, The question for consideration in these proceedings is whether section 303 of the IPC 1860 infringes the guarantee contained in article 21 of the Constitution. A provision of law which deprives the court of the use of its wise and beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore, without regard to the gravity of the offence, cannot but be regarded as harsh, unjust and unfair. 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. The mandatory sentence of death prescribed by section 303 with no discretion left to the court to have regard to the circumstances which led to the commission of the crime is a relic of ancient history. It is because the death sentence has been made mandatory by section 303 in regard to a particular class of persons that, as a necessary consequence, they are deprived of the opportunity under section 235 (2) of the Cr PC 1973 to show cause why they should not be sentenced to death and the court is relieved from its obligation under section 354 (3) of the Code to state the special reasons for imposing the sentence of death. The deprivation of these rights and safeguards which is bound to result in injustice is harsh, arbitrary and unjust. There are as many as 51 sections of the IPC which provide for the sentence of life imprisonment. A person who is sentenced to life imprisonment for any of these offences incurs the mandatory penalty of death under section 303, if he commits a murder while he is 8 Supranote5 The Court upheld the constitutionality of capital punishment under Section 302, IPC as it was an alternative to the sentence of life imprisonment and could be invoked only after according special reasons Under Section 354(3) CrPC and hearing the accused on the sentence under Section 235(2) CrPC. 9 (1983) 2 SCC 277

4 under die sentence of life imprisonment. It is impossible to see the rationale of this aspect of section 303 IPC. Since there is a fundamental distinction between Ss. 302 and 303 of the I.P.C., the ratio of Bachan Singh 10 does not govern the question as regards the validity of S.303. While S. 302 provides for the death sentence as an alternative, S. 303 prescribes a mandatory death sentence. There is no rational basis for classifying a person who commits murder while under life imprisonment as distinguished from others who commit murders while not under life imprisonment, for the purpose of making death sentence mandatory in the former case and optional in the latter case, The classification is, based on irrelevant considerations and bears no nexus with the object of the statute, namely, imposition of a mandatory death sentence. 11 B. Mandatory Death Penalty undersection 31-A of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act): In IndianHarm Reduction Network v. Union of India, 12 the legality of Section 31-A 13 of NDPS Actwas challenged. Instead of declaring Section 31-A as unconstitutional, and void ab initio, Court assumed the expression "shall be punishable with death" as "may be punishable with death" in relation to offences covered under Section 31-A of Act. By reading it as may be punishable with death then the Court will have discretion to impose punishment specified in Section 31 of Act for offences covered by Section 31-A of Act. But, in appropriate cases, the Court can award death penalty for offences covered by Section 31- A, upon recording reasons.subsequently there was amendment in the NDPS (Amendment) Act, According to the NDPS (Amendment) Act, 2014 section 31-A of the Act, in subsection (1), for the words shall be punishable with death, the words and figures shall be punished with punishment which shall not be less than the punishment specified in section 31 or with death was substituted. C. Mandatory Death Penalty under Section 27 (3) of the Arms Act, 1959 held unconstitutional: 10 Supra note 4 11 M.P Jain, Indian Constitutional Law, 7 th Ed., Lexis Nexis, at Page BomCR(Cri) Section 31A- Narcotic Drugs and Psychotropic Substances Act, 1985, Death penalty for certain offences after previous conviction: (1)Notwithstanding anything contained in section 31, if any person who has been convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, any of the offences punishable under section 19; (2)where any person is convicted by a competent court of criminal jurisdiction outside India under any law corresponding to the provisions of [section 19, section 24 or section 27 A and for offences involving commercial quantity of any narcotic drug or psychotropic substance], such person, in respect of such conviction, shall be dealt with for the purposes of sub-section (1) as if he had been convicted by a court in India.

5 In State of Punjab v. Dalbir Singh 14, the validity of provision Sections 5 15, 7 16 and 27(3) 17 of Arms Act, 1959 was challenged.the Supreme Court said that Section 27(3) of Arms Act is very widely worded. Section 7 of the said Act prohibits acquisition or possession, or manufacture or sale of prohibited arms or prohibited ammunitions. Section 27 (3) says that whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death.the reason behind this is that if someone by accidental or unintentional does the above act then it might result into mandatory death penalty. The court referred to the case of Mithuv. State of Punjab 18 and came to the conclusion that this provision deprives the court of its discretion, and it disregard the circumstance in which the act was committed. The action of the court can be regarded as harsh, unjust and unfair. Therefore, the provision of Section 27 (3) of the Act was held to be violative of Article 14 and 21 of the Constitution. After this judgment an amendment was proposed in section 27 (3) through THE ARMS (AMENDMENT) BILL, 2011, but this bill got lapsed. 19 There was no amendment made to this act. The proposed amendment was, in section 27, in sub-section (3), for the words shall be punishable with death, the words shall be punishable with death or imprisonment for life and shall also be liable to fine shall be substituted MANDATORY DEATH SENTENCE UNDER SECTION 3 (2) (I) OF THE SCHEDULED CASTES AND THE SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1989 (HEREINAFTER REFERRED TO AS SC/ST PREVENTION ACT) 14 AIR2012SC The Arms Act, 1959, Section 5-Licence for manufacture, sale, etc., of arms and ammunition, [(1)] No person shall a) use, manufacture sell, transfer, convert, repair, test or prove, or b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof. 16 The Arms Act, 1959, Section 7-Prohibition of acquisition or possession, or of manufacture or sale, of prohibited arms or prohibited ammunition, a) acquire, have in his possession or carry; or b) use, manufacture sell, transfer, convert, repair, test or prove; or c) Expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof; any prohibited arms or prohibited ammunition unless he has been specially authorised by the Central Government in this behalf. 17 The Arsm Act, 1959, Section 27 (3)- Punishment for using arms, etc.,: (1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. 18 Supranote 9 19 The Arms (Amendment) Bill, (lasted visited on Ocotober 04, 2016) 20 Ibid

6 In India there arefew statutes which deals with mandatory death penalty out of which some were amended later on and some were held unconstitutional by the Hon ble Supreme Court of India. Firstly, Section 303, IPC has been held unconstitutional but no amendment has been made to it. Secondly, Section 31A of NDPS Act has not been held unconstitutional but instead of reading the said provision as "shall be punishable with death" will be read as "may be punishable with death". Subsequently the NDPS (Amendment) Act, 2014 was passed with the above changes.thirdly, is Section 27(3) of the Arms Act which provides for mandatory death penalty. The Apex Court held that the said provision is violative of Article 14 and 21 of the Constitution of India. An amendment was proposed in Section 27 (3) to replace the words shall be punishable with death with shall be punishable with death or imprisonment for life and shall also be liable to fine, however the bill got lapsed and so there was no amendment made to it.andlastly is the Section 3 (2) (i) 21 of SC/ST Prevention Act, whose constitutionality has not been challenged before any court. Section 3 (2) (i) of The SC/ST Prevention Act, 1989 which says if an innocent member of a Scheduled Caste or a Scheduled Tribe be convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death. Here important thing is to be notedis that any personwho does not belong to Scheduled Castes or Scheduled Tribes who gives or fabricates such false evidence and because of such false evidence any member of Scheduled Castes or Scheduled Tribesconvicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death. 22 In order to attract Section 3(2) (i) following things are necessary: 1. The accused person should not belong to Scheduled Castes or Scheduled Tribes community. 2. He should give or fabricate false evidence against any member of Scheduled Castes or Scheduled Tribes. 21 The Scheduled Castes and The Scheduled Tribes (Prevention Of Atrocities) Act, 1989, Section 3 (2) (i): Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is capital by the law for the time being in force shall be punished with imprisonment for life and with fine; and if an innocent member of a Scheduled Caste or a Scheduled Tribe be convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death; 22 Section 3 (2) (i) of The Scheduled Castes And The Scheduled Tribes (Prevention Of Atrocities) Act, 1989

7 3. Because of such false evidence any member of SC/ST is convicted and executed. 4. The person who gives or fabricates such false evidence, shall be punished with death. In future even if such case come before any court then the court will not have any discretion as per this provision other than giving death penalty to the convicted person.the SC/ST Prevention Actis very stringent and the main purpose of this act is to protect the weaker section of our society. Eventhough such false evidence has been provided before the Court and execution of the SC/ST member is possible then also it is very difficult for a court to award death penalty because Indian Judiciary believes in the rehabilitation of the accused and not in the direct execution of the accused except in the rarest of rare case. Section 194, Indian penal code, 1860 is parimateria to section 3(2) (i) of SC/ST Prevention Act. But Section 194, IPC gives discretion to the Court to choose between death penalty and imprisonment, whereas, Section 3(2) (i) of SC/ST Prevention Act does not give any discretion to the Court but to give only mandatory death penalty. Fabricating false evidence with intent to procure conviction of capital offence- Sections and , IPC deal with aggravated forms of giving or fabricating false evidence wherein the intention in giving or fabricating false evidence is to procure. 1. The conviction of a person of capital offence (section 194 will be applicable), or 2. The conviction of an offence punishable with imprisonment for life or imprisonment of seven years or more (section 195 will be applicable). To constitute an offence under section 194 the accused must give a false evidence intending thereby to cause a person to be convicted of a capital offence for which the death 23 The Indian Penal Code, Section 194, Giving or fabricating false evidence with intent to procure conviction of capital offence: Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which is capital by the laws for the time being in force in India shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; If innocent person be thereby convicted and executed and if an innocent person be convicted and executed in consequence of such false evidence, the person who gives such false evidence shall be punished either with death or the punishment hereinbefore described. 24 The Indian Penal Code, Section 195, Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment: Whoever gives or fabricates false evidence intend ing thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which by the law for the time being in force in India is not capital, but punishable with imprisonment for life, or impris onment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished. Illustration: A gives false evidence before a Court of Justice, intending thereby to cause Z to be convicted of a dacoity. The punishment of dacoity is imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, with or without fine. A, therefore, is liable to imprisonment for life or imprison ment, with or without fine.

8 sentence is provided. A person who brings before a court a witness whom he has tortured to tell a false story concerning a murder case before it, commits an offence under this section. 25 In the first part of the section, wherein the accused in giving or fabricating a false evidence intended thereby to cause or knew that it was likely to cause the person in question to be convicted of a capital offence, he is liable to punishment that may extend to imprisonment of a term of ten years and fine. 26 According to the second part of the section, if an innocent person is convicted and executed in consequence of such false evidence, the accused shall be punished either with death or with imprisonment for life, or imprisonment up to 10 years and fine as prescribed under the first clause. 27 The offence under section 194, IPC and Section 3(2) (i) of SC/ST Prevention Act is non-cognizable, non-compoundable and triable by the Court of Session CONCLUSION Even after such strong amendments made to the SC/ST Prevention (Amendment)Act in 2015, no changes were made towards the mandatory death penalty because there is no interpretation on part of the Court. It infringes the guarantee contained in Article 21 of the Constitution. In future ifthe Constitutionality of this section is challenged then the court will follow the reasoning given in the Mithu v. State of Punjab, 29 accordingly the court will also held thissectionunconstitutional or it will propose to amend this particular section. The Court can evenassumed the expression "shall be punishable with death" as "may be punishable with death" as it was already done in IndianHarm Reduction Network v. Union of India Emperor v. Sur NathBhaduri, 1927 ILR 50 ALL K.D. Gaur, Textbook on Indian Penal Code, 5 th Ed., Universal Law Publishing, Lexis Nexis., at Page Ibid 28 Ibid at Supra note 9 30 Supra note 12