STATE OF PUNJAB v. DALBIR SINGH

process' and the concept of a just, fair and reasonable A law has been read by this Court into the guarantee under Articles 14 and 21 of the Constitution. Therefore, the provision of Section 27(3) of the Act is violative of Article 14 and 21 of the Constitution. [Paras 92, 94] [658-C, F] 8

5.3. Apart from that the said Section 27 (3) is a post Constitutional law and has to obey the injunction of Article 13 which is clear and explicit. In view of the mandate of Article 13 of the Constitution which is an Article within Part-Ill of our Constitution, Section 27(3) having been enacted in clear contravention of Part-Ill C rights, Section 27(3) of the Act is repugnant to Articles 14 and 21 and is void. [Paras 95, 96] (658-G; 659-B)

5.4. Section 27(3) of the Act also deprives the judiciary from discharging its Constitutional duties of o judicial review whereby it has the power of using discretion in the sentencing procedure. This power has been acknowledged in Section 302 IPC and in Bachan Singh case it has been held that the sentencing power has to be exercised in accordance with the statutory E sentencing structure under Section 235(2) and also under Section 354(3) of the Code of Criminal Procedure. [Paras 97, 98) (659-C, D]

5.5. Section 27(3) of the said Act while purporting to impose mandatory death penalty seeks to nullify those F salutary provisions in the Code. This is contrary to the law laid down in Bachan Singh. [Para 99) [659-E]

5.6. In fact the challenge to the constitutional validity of death penalty under Section 302 IPC has been G negatived in Bachan Singh 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 Act runs contrary to those statutory safeguards which give judiciary the discretion in the H 616 SUPREME COURT REPORTS [2012] 4 S.C.R. A matter imposing death penalty. Section 27(3) of the Act is thus ultra vires the concept of judicial review which is one of the basic features of our Constitution. [Para 100] [659-F, G] 8

5.7. The ratio in both Bachan Singh and Mithu has been universally acknowledged in several jurisdictions across the world and has been accepted as correct articulation of Article 21 guarantee. Therefore, the ratio in Mithu and Bachan Singh represents the concept of Jus cogens meaning thereby the peremptory non derogable C norm in international law for protection of life and liberty. That is why it has been provided by the 44th Amendment Act of 1978 of the Constitution, that Article 21 cannot be suspended even during proclamation of emergency under Article 359(vide Article 359(1 )(a) of the Constitution. D Therefore Section 27(3) of the Arms Act is against the fundamental tenets of our Constitutional law as developed by this Court. Section 27(3) of Arms Act, 1959 is ultra vi res the Constitution and is void. [Paras 100, 101, 102, 103 and 104] [659-H; 660-A-D] E