The Supreme Court last week ruled as unconstitutional the mandatory imposition of the death penalty under the Arms Act in view of the absence of judicial review. The verdict is a reiteration of current jurisprudence that for criminal offences, life imprisonment is the rule and death sentence the exception. The impugned section 27 (3) of the Arms Act stipulates capital punishment for offences that may result in the loss of life. Accordingly, even where death was a consequence of accidental or unintended use of arms, the ultimate sentence was the only penalty available under this provision — a clear violation of the Constitutional rights to equality and life, as the court observed. Moreover, the prescription of the death penalty as mandatory was a contravention of the principle of judicial review. In addition, the provision also violates Article 13(2) of the Constitution, which bars Parliament from enacting laws that may abridge fundamental rights. The provision quashed by the ruling was incorporated through a 1988 ordinance that enhanced penalties for Arms Act offences in the backdrop of the Punjab militancy. Though the threat posed by terrorism today is no less dire, the Court's message is that there must be responsibility and restraint in framing laws.
The judgment is also a vindication of the position of human rights groups the world over that the rule of law and application of due process in trials should not be circumvented even in relation to the most heinous crimes. Significantly, Parliament has already introduced a retrospective amendment to harmonise the relevant provision of the Arms Act with Section 302 of the Indian Penal Code. Evidently, this correction will not preclude a sentence of death from being handed down for offences under this law. But in the absence of complete abolition, even the scope to challenge and prevent death sentences from being carried out is not an insignificant gain. That is precisely the burden of the current case globally for the establishment of a moratorium on executions in countries where the death penalty still remains. India should adopt this course since in any case the Supreme Court resorts to this punishment only in the rarest of rare cases and also because the approach has exposed successive governments to the charge of arbitrariness and inconsistency in its application. Indeed, the arbitrariness question will be tested when the court considers this month the final appeal of two men on death row — Mahendra Nath Dass and Devendar Pal Singh Bhullar — both of whom have fittingly cited lengthy, unexplained delays in the disposal of their mercy petitions as grounds for commutation of their sentence to life.
