Between 1985 and 1990, the deteriorating law and order situation in Punjab was an ever-present source of concern at the centre, becoming the source of various ordinances and statutes. One of these was the Arms (Amendment) Ordinance, passed on 27.05.1988, which sought to curb the use of unlicensed firearms (amongst other things) by raising the possible punishments for such activities. To have maximum deterrent effect, the Ordinance prescribed a mandatory death sentence where the use of unlicensed firearms or ammunition resulted in the death of any other person.
There is only one catch here. In no uncertain terms, the Supreme Court had declared provisions carrying a mandatory death sentence unconstitutional five years prior to this Ordinance. This was not an unreported consent order, but by a reported decision of a Constitution Bench in a batch of petitions including Mithu v. State of Punjab [AIR 1983 SC 473 ("Mithu")]. For me, this makes the Arms (Amendment) Ordinance a unique piece of legislation, and its history worth sharing.
From Ordinance to Act
The Ordinance was promulgated on 27.05.1988, and before it could lapse the government, through the then Minister of State for Home Affairs Mr. P. Chidamabaram, moved a Bill in the Lok Sabha seeking to amend the Arms Act 1959 in line with the Ordinance. Introducing the Bill for discussion on 08.08.1988, [Page 300 onwards] he emphasised the "rising trend of violence and terrorism by extremists and anti-national elements in various parts of the country" as necessitating this Bill which also provided for capital punishment to achieve a "deterrent punishment for various offences".
The provision which sought to introduce capital punishment, Section 27(3) of the Act, was criticised by some members on grounds of removing all elements of causation from criminal law. They argued that the offence created strict liability holding persons responsible for using illegal firearms which result in death, without there being any intention to cause death. In response, while closing the debate on 09.08.1988 [page 542 onwards], Mr. Chidambaram did not engage with this criticism, but justified the amendments as incorporated a measure of proportionality as it brought about a graded scheme where mere use of illegal arms attracted a less severe sentence than cases where such use resulted in death.
Reading the debates, the absence of any reference to Mithu and the legality of a mandatory death sentence is galling. Remember, this was not an unreported order, but a reported judgment, which clearly indicated that Section 27(3) would be unconstitutional but which Parliament in its great wisdom merrily ignored. A reference to Mithu would have also advised Parliament about how the mystical deterrent effect it sought to achieve was a mirage and could not have guided its decision behind introducing the death sentence, let alone a mandatory death sentence. However, this was not to be. The Bill was passed by both Houses and the Arms (Amendment) Act received the President's signature on 01.09.1988 as Act No. 42 of 1988 [Page 439], with Section 27(3) carrying its mandatory death sentence.
From Act to being Struck Down Striking
Around five years after the amendment was brought into force, on 11.04.1993 a CRPF Constable Dalbir Singh, posted at Amritsar, was brought by his Battalion Havaldar Major before the Deputy Commandant to be reprimanded. Dalbir Singh seemingly left the room after being reprimanded, but almost immediately thereafter bullets began raining down on the Deputy Commandant's room from outside. It was stated later that Dalbir Singh had been firing the rounds, and the situation was brought under control only after he was overpowered by two men.
The Havaldar Major died from the bullet injuries he sustained, and a case under Sections 302 of the Penal Code and 27(3) of the Arms Act was lodged against Dalbir Singh. Being convicted by the Trial Court and sentenced to death in 1996, his conviction was overturned by the High Court in its order of July 2005 due to some glaring inconsistencies in the prosecution case. This order was then challenged by the State of Punjab before the Supreme Court, where special leave was granted in 2006 itself but the matter then went into cold storage for a number of years, only to suddenly come back to life in 2010. A different bench was convinced there was no reason to interfere with the acquittal, but it was taken with a submission by the accused that Section 27(3) deserved to be struck down as unconstitutional.
The matter came to be heard regularly thereafter. What exactly was argued is not recorded in the daily orders, but I wonder if counsels also raised the tale of Section 31-A of the Narcotic Drugs and Psychotropic Substances Act 1988, which came on the Statute Book a year later than Section 27(3) of the Arms Act. Section 31-A prescribed a mandatory death sentence for the repeat offenders in some cases, chasing that same mirage of deterrence and, again, clearly contrary to the holding in Mithu. Its scope was narrowed down in 2001, but nevertheless, it retained the clause with a mandatory death sentence. While Dalbir Singh's case was before the Supreme Court, petitions came to be filed before the Bombay High Court challenging Section 31-A of the NDPS Act, which were decided by the Court on 16.06.2011 in Indian Harm Reduction Network [2011 SCC OnLine Com 715]. Section 31-A was read down by the Court as not prescribing a mandatory death term (similar to how the Supreme Court had also read down another clause of the 1989 NDPS amendments, Section 32-A almost a decade prior), but it was not struck down, and in 2014 it came to be amended to statutorily remove for the mandatory nature of the death sentence.
What is recorded, however, is that during the course of arguments the Union Government made a request for the Court to not decide the issue as it was actively reconsidering the legality of Section 27(3). It was even mentioned before the Court that the Home Minister—none other than the progenitor of the clause, Mr. P. Chidambaram—had sought to introduce the Arms (Amendment) Bill 2011, amending Section 27(3) with retrospective effect to remove the mandatory nature of the death sentence. This concession was not accepted by the Court, citing its oath to enforce the Constitution, and in State of Punjab v. Dalbir Singh [(2012) 3 SCC 346, decided on 01.02.2012] it struck down Section 27(3) of the Arms Act.
It was not only because of what Mithu had held four decades years ago, or that the global consensus around mandatory death sentence clauses had shifted over time, but also because of the unnervingly broad nature of the clause as well. Vindicating the stand of those who opposed the amendment, the Court held that prescribing a death sentence where 'use' of prohibited arms 'results' in death had cast the net far too broadly, and went contrary to Article 21 of the Constitution.
From Unconstitutionality to Revival
Section 27 was not removed from the Statute Book after Dalbir Singh. Despite the judgment, the Arms (Amendment) Bill continued to be considered, going first before a Standing Committee which in its report of March 2012 suggested sending the matter to the Law Commission (which did not author any report). It was only in 2019 (by a different government) that, much like Section 31-A of the NDPS Act, Section 27 of the Arms Act came to be amended to bring the provision at par with other clauses and a choice was given to courts to impose either life imprisonment or the death sentence.
History repeated itself, though, as again Parliament proceeded with its agenda [page 204 onwards] merrily ignoring what the Court had held in Dalbir Singh, like it had done before with Mithu. Section 27(3) had not been declared unconstitutional merely because it prescribed a mandatory death sentence, but also because of the over-broad and vague language of the clause itself. Yet, no changes were made to adopt these concerns and narrowly tailor the statute. This time around, even those opposing the Bill stayed mute on this issue.
No challenge appears to have been made to the validity of the amended clause yet. But surely, the findings of the Court in Dalbir Singh that Section 27(3) is too vague for criminalising the 'use' of firearms to 'result' in death, as this framing carries within it many scenarios where innocent persons may be wrongly prosecuted, will carry some heft before a court.
Conclusion — No Lessons Learnt?
Parliament acted with impunity in 1988 while first amending Section 27(3) of the Arms Act, which was not some anodyne issue but in respect of prescribing a mandatory death sentence. If the State of Punjab would have chosen not to challenge Dalbir Singh's acquittal in 2006, a patently unconstitutional law would have continued to prosecute who knows how many more people. Fortuity, in how the case came to be and then how a bench took interest in the plea of unconstitutionality, rather than deliberate course correction, brought down the amended Section 27(3) in 2012. Only for it to return in 2019 with cosmetic changes, once again in defiance of a judicial decision. It seems no lessons were learnt.
The story of Section 27(3) is much like that sordid tale of Section 66-A of the Information Technology Act living a glorious afterlife after being struck down by the Supreme Court in Shreya Singhal [(2015) 5 SCC 1]. But in some respects it is even worse. Section 66-A continues to be used despite being struck down, while the amended Section 27(3) was unconstitutional since its very inception. The issue of securing compliance is not only a fight between the different branches of government, but one which occurs intra branch as well. No clearer example can be found than the continuing saga of courts not complying with the guidelines set out by a Constitution Bench in Bachan Singh [AIR 1980 SC 898] and Machhi Singh [AIR 1983 SC 957] to consider mitigating circumstances while imposing a death sentence. As recently as on 20.05.2022, a Three Justices' Bench of the Supreme Court expressed its anguish at this state of affairs, passing fresh guidelines to ensure compliance with its own decisions.
To think of the numerous persons who spent time on death row due to a charge under Section 27(3) or due to improper compliance with Bachan Singh is a grim prospect, but it is necessary, and must bring us to have important conversations regarding accountability for such grave errors by the state. Sure, we should work towards removing opportunities for such lapses, but such instances of wilful blindness (or deliberate malice) cannot be excused with a shrug of the shoulders. After all, can there be a graver insult to the right to life than being prosecuted and punished by an avowedly unconstitutional process?
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