Thursday, February 2, 2012

Supreme Court strikes down Arms Act provision for mandatory death penalty

Bench says it runs counter to constitutional law and ultra vires Constitution
The Supreme Court on Wednesday declared unconstitutional Section 27 (3) of the Arms Act, which provides for mandatory death sentence to an accused charged with an offence under this provision.

Section 27(3) says: “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.”

A Bench of Justices A.K. Ganguly and J.S. Khehar said: “A law which is not consistent with [the] notions of fairness while it imposes an irreversible penalty like death is repugnant to the concept of right and reason.”

Writing the judgment, Justice Ganguly said the scope of Section 27(3) was very wide in that anything done in contravention of Section 7 and with the use of prohibited arms and ammunition resulting in death would attract the death penalty. “Even if an act done in contravention of Section 7, namely, acquisition or possession or manufacture or sale of prohibited arms results in the death of any person, the person in contravention of Section 7 shall be punished with death.”

Dealing with the question arising out of a judgment by the Punjab and Haryana High Court, the Bench said: “In fact, the challenge to the constitutional validity of [the] death penalty under Section 302 of the Indian Penal Code has been negatived in the ‘Bachan Singh case' in view of the sentencing structure in Sections 235 (2) and 354 (3) of the Criminal Procedure Code. By imposing mandatory death penalty, Section 27 (3) of the Arms Act runs contrary to those statutory safeguards which give [the] judiciary the discretion in the matter imposing [the] death penalty. Section 27(3) of the Arms Act is thus ultra vires the concept of judicial review, which is one of the basic features of our Constitution.”

The Bench said: “This is thus a very drastic provision for many reasons. Apart from the fact that this imposes a mandatory death penalty, the Section is so widely worded to the extent that if, as a result of any accidental or unintentional use or any accident arising out of any act in contravention of Section 7, death results, the only punishment, which has to be mandatorily imposed on the person in contravention, is death. Therefore, the provision of Section 27(3) of the Act is violative of Articles 14 and 21 of the Constitution.”

The Bench said: “Apart from that, Section 27 (3) is a post-constitutional law and has to obey the injunction of Article 13 which is clear and explicit. Article 13 (2) says ‘The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. In view of the mandate of Article 13 of the Constitution, Section 27(3) having been enacted in clear contravention of fundamental rights, Section 27(3) of the Act is repugnant to Articles 14 and 21 and is void. Section 27(3) of the Act also… [prevents] the judiciary from discharging its constitutional duties of judicial review, whereby it has the power of using discretion in the sentencing procedure.”

The Bench held that this provision was against the fundamental tenets of the constitutional law and ultra vires the Constitution.

The Hindu - 2.2.2012

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