Maru Ram Vs. Union of Lndia & ANR
 INSC 213 (11 November 1980)
CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N.
FAZALALI, SYED MURTAZA KOSHAL, A.D.
CITATION: 1980 AIR 2147 1981 SCR (1)1196 1981
SCC (1) 107
CITATOR INFO :
R 1982 SC1163 (1,2) R 1982 SC1195 (1,2) R
1982 SC1439 (2,3,6) R 1984 SC 739 (5) R 1985 SC 870 (14,20) R 1985 SC1050 (10)
R 1989 SC 653 (7,11,15) RF 1990 SC 336 (7,10,13) E 1990 SC1396 (7) E 1991
SC1792 (1,3,4,6,11,12,13,14,16) R 1991 SC2296 (6,8)
Prison Prisoner Legislation vis-a-vis-Code of
Criminal Procedure Code, 1973 (Act II of 1974)-Section 433A, as Indicated with
effect from 18th December, 1978, prescribing a minimum of 14 years of actual
imprisonment for the two types of lifers, vires of-Pardon Jurisprudence-Effects
of Section 433A on Articles 72 and 161-Whether section 433A l isolates Article
14 being wholly arbitrary and irrational- Whether section 433A lacked
legislative competency under the lists and also contravene Article 20(I) of the
Constitution- Whether the various provisions for remission under the prison the
Prison Act and Rules and other legislation had their full operation not
withstanding section 433A, thanks to the savings provision in section 5 of the
Code of Criminal Procedure Code Constitution of India, 1950, Articles 14,
20(1), 72, 161, 246(1), (2) an(l 254, Entry II List III of the Seventh
Schedule, Code of Criminal Procedure, 1973, sections 5, 432, 433, 433A-Prisons
Act, 1894 (Central Act), section 59 (27) read with General Clauses Act.
Dismissing the writ petitions but partly
allowing, the Court ^
HELD: By Iyer, J. (on behalf of Y. V.
Chandrachud, C.J., P. N. Bhagwati. J. and himself)
1. Section 433A of the Code of Criminal
Procedure Code as introduced With effect from 18-12-1978 is constitutionally
valid. May be, penologically the prolonged terms prescribed by the Section is
supererogative [1248 C-D]
2. Section 433A is supreme over the Remission
Rules and short-sentencing, statutes made by the various States. [1248 D]
3. All remissions and short-sentencing passed
under Articles 72 and 161 of the Constitution are valid but release with follow
in life sentence case only on Government making an order en masse or
individually, in that behalf [124D-E]
4. Section 432 and section 433 of the Code
are not a manifestation of Articles 72 and 161 of the Constitution but a
separate, though similar, power and section 433A, by nullifying wholly or
partially these prior provisions does not violate or detract from the full
operation of the constitutional power to pardon, commute and the like. [1248
5. Section 433A of the Code does not
contravene the provisions of Article 20(1) of the Constitution. [1248G]
6. Imprisonment for life lasts until the last
breath and whatever the length of remissions earned, the prisoner can claim
release only if the remaining sentence is remitted by Government. [1248 G]
Gopal Vinayak Godse v. State of Maharashtra & Ors., [19611 3 S.C.R. 440,
7. Section 433A, in both its limbs (i.e. both
types of life imprisonment specified in it), is prospective in effect. The
mandatory minimum of 14 years actual imprisonment will not operate against
those whose cases were decided by trial court before the 18th December, 1978,
directly or retroactively as explained in the judgment when section 433A came
into force. All 'lifers' whose conviction by the court of first instance was
entered prior to that date-are entitled to consideration by Government for
release on the strength of earned remissions although a release can take place
only it Government makes an order to that effect.
It follows by the same logic, that
short-sentencing legislations if any, will entitle a prisoner to claim release
there under if his conviction by the court of first instance was before section
433A was brought into effect.
[1248 H, 1249 A]
8. The power under Articles 72 and 161 of the
Constitution can be exercised by the Central and the State Governments, not by
the President or Governor on their own.
The advice of the appropriate Government
binds the Head of the State. No separate order for each individual case is
necessary but any general order made must be clear enough to identify the group
of cases and indicate the application of mind to the whole group. [1249-D]
9. Considerations for exercise of power under
Articles 72/161 may be myriad and their occasions protean, and are left to the
appropriate Government, by no consideration nor occasion can be wholly
irrelevant, irrational, discriminatory or mala fide. Only in these rare cases
will the court examine the exercise. [1249 D-E]
10. Although the remission rules or
short-sentencing provisions proprio vigore may not apply as against section
433A. if the Government, Central or State, guides itself by the self-same rules
or schemes in the exercise of its constitutional power. Until fresh rules are
made in keeping with experience gathered, current social conditions and
accepted penological thinking. the present remission and release schemes may
usefully be taken as guidelines under Articles 72/161 and orders for release
passed. Government cannot be faulted, if in some intractably savage
delinquents, section 433A is itself treated as a guideline for exercise of
Articles 72/161. [1249E-G]
11. The U.P. Prisoners' Release on Probation
Act, 1938 enabling limited enlargement under licence will be effective as
legislatively sanctioned imprisonment of a loose and liberal type and such
licensed enlargement will toe reckoned for the purpose of the 14-year duration.
Similar other statutes and rules will enjoy similar efficacy. [1249 G-H]
12. Penal humanitarianism and rehabilitative
desideratum warrant liberal paroles. subject to security safeguards, and other
humanizing strategies for inmates so that the dignity and worth of the human
person are not desecrated by making mass jails anthropoid zoos. Human rights
awareness must infuse institutional reform and search for alternatives. [1250
13. Law in action fulfils itself not by
declaration alone and needs the wings of communication to the target community.
So, the whole judgment well translated in the language of the State, must be
kept prominently in each ward and made available to the inmate, in the jail
14. Section 433A does not forbid parole or
other release within the 14-year span . So to interpret the Section as to
intensify inner tension and taboo intermissions of freedom is to do violence to
language and liberty. [1250 C-D] 1198
15. Parliament has the legislative competency
to enact the provisions in section 433A of Criminal Procedure Code.
[1214F] It is trite law that the Lists in the
Seventh Schedule broadly delineate the rubrics of legislation and must be
interpreted liberally. Article 246(2) gives power to Parliament to make laws
with respect to any of the matters enumerate ed in List III. Entries 1 and 2 in
List 111 (especially Entry 2) are abundantly comprehensive to cover legislation
such as is contained in section 433A, which merely enacts a rider, as it were,
to ss. 432 and 433(a). A legislation on the topic of "Prisons and
Prisoners" cannot be read into section 433A. On the other hand, section
433A sets a lower limit to the execution of punishment provided by the Penal
Code and is appropriately placed in the Chapter on "Execution and Sentences"
in the Procedure Code. Once the irrefutable position that the execution,
remission and commutation of sentences primarily fall, as in the earlier 1898
Code, within the 1973 Procedure Code (Chapter XXIII) is accepted, section 433A
can be rightly assigned to Entry 2 in List III as a cognate provision integral
to remission and commutation, as it sets limits to the power conferred by ss.432
and 433. This limited prescription as a proviso m, the earlier prescription
relates to execution of sentence, not conditions in prison or regulation of
prisoner's life. The distinction between prisons and prisoners on the one hand
and sentences and their execution, remission and commutation on the other, is
fine but real. To bastardize section 433A as outside the legitimacy of Entry 2
in list III is to breach all canons of constitutional interpretation of
legislative list [1214B-F]
15. (i) The power of the State to enact the
laws of remissions and short sentencing under Entry 4 of List 11 is subject to
Articles 246(1) and (2) and so parliamentary legislation prevails over State
legislation. Moreover, Article 254 resolves the conflict in favour of
parliamentary legislation. If a State intends to legislate under Entry 2 of
list III such law can prevail in that State as against a parliamentary
legislation only if Presidential assent has been obtained in terms of Article
254(2). In the present case, section 433A must hold its sway over any State
legislation even regarding "prisons and prisoners", if its provisions
are repugnant to the Central law. [1214G, 1215 B- C] 15 (ii). Remission schemes
do not upset sentences, but merely provide re wards and remissions for in
prison good conduct and the like If the sentence is life imprisonment
remissions, as such cannot help. If the sentence is for a fixed term,
remissions may help, but section 433A does not come in the way. Thus
incompatibility between section 433A and remission provisions exists. [1215
16. The fasciculus of clauses (ss. 432, 433
and 433A), read as a package, makes it clear that while the Code does confer
wide powers of remission and commutation or sentences, it emphatically intends
to carve out an extreme category from the broad generosity of such executive
The non obtained clause, in terms, excludes
section 432 and the whole mandate cf the rest of the Section necessarily
subjects the operation of section 433(a) to a serious restriction. This embargo
directs that commutation in such cases shall not reduce the actual duration of
imprisonment below 14 years. Section 431 does declare emphatically an
imperative intent to keep imprisoned for at least 14 years those who fall
within the sinister categories spelt out in the operative part of section 433A.
[1216 B-C] 1199 It is elementary that a non obstante tail should not wag a statutory
dog. A non obstante Clause cannot whittle down the wide import of the principal
part. The enacting part is Clear and the non obstante clause cannot cut down
its scope.[1217 A-B] Aswini Kumar Ghose and Another v.Aravinda loose &
Another,  S.C.R. 1., followed.
To read down section 433A to give overriding
effect to the Remission Rules of the State would render the purposeful exercise
a ludicrous futility. If "Laws suffer from the disease of Language",
courts must cure the patient. not kill him., "Notwithstanding the
"notwithstanding.. " in section 433A, the Remission Rules and like
provisions stand excluded so far as "lifers" punished for capital
offences are concerned. [1217D-E]
17. Sentencing is a judicial function but the
execution of the sentence. after the courts pronouncement, is ordinarily a
matter for the Executive under the Procedure Code, going by Entry 2 in List 111
of the Seventh Schedule.
Once a sentence has been imposed, the only
way to terminate it before the stipulated term is by action under ss. 432/433
of the Code or Articles 72/161. And if the latter power under the Constitution
is not invoked, the only source of salvation is the play of power under ss. 432
and 433(a) so far as a 'lifer' is concerned. No release by reduction or
remission of sentence is possible under the corpus juris as it stands, in any
other way. The legislative power of the state under Entry 4 of List 11, even if
it be stretched to snapping point, an deal only with Prisons and Prisoners,
never with truncation of judicial sentences. Remissions by way of reward or
otherwise cannot cut down the sentence as such and cannot grant final exit
passport for the prisoner except by Government action under section 432(1). The
topic of Prisons and Prisoners does not cover release by way of reduction of
the sentence itself. That belongs to Criminal Procedure in Entry 2 c f List 111
although when the sentence is for a fixed term and remission plus the period
undergone equal that term the prisoner may win his freedom. Any amount of
remission to result in manumission requires action under section 432(1), read
with the Remission Rules. That is why Parliament, tracing the single source of
remission of sentence to Section 43', blocked it by the non obstante clause. No
remission, however long. can set the prisoner free at the instance of the
State, before the judicial sentence has run out, save by action under r the
constitutional power or under section 432. So read, section 433A achieves what
it wants-arrest the release of certain classes of "lifers" before a
certain period, by blocking of section 432. [1217 G-H, 1218 A-E] Sentencing is
a judicial function and whatever may be done in the matter of executing that
sentence in the shape of remitting. commuting or otherwise abbreviating, the
Executive cannot alter the sentence itself. Remission cannot detract from the
quantum or quality of sentence or its direct and side-effects except to the
extent of entitling the prisoner to premature freedom if the deduction
following upon the remission has that arithmetic effect. The nature of a life
sentence is incarceration until death, judicial sentence of imprisonment for
life cannot be in jeopardy merely because of long accumulation of remissions.
Release would follow only upon an order under section 401 of the Criminal
Procedure Code, 1898 (corresponding to s. 432 of the 1973 Coded by the
appropriate Government or on a clemency order in exercise of power under
Article 72 or 161 of the Constitution. [1218 F-&, 1219H. 1220A, E-F] Sarat
Chandra Rabha and Ors. v. Khagendranath Nath & Ors.  2 S.C.R. 133;
Gopal VinayaK Godse v. State of Maharashtra & Ors.  3 S.C.R. 440,
18. Section 433A escapes the Exclusion of
section 5 of the Code of Criminal Procedure. A thing is specific if it is
explicit. It need not be "express". What is precise, exact, definite
and explicit, is specific. Sometimes, what is specific may also be special but
yet they are distinct in semantics. From this angle the Criminal Procedure Code
is a general Code. The remission rules are special laws but section 433A is a
specific, explicit, definite provision dealing with a particular situation or
narrow class of cases. as distinguished from the general run of cases covered
by section 432 Crl. P.C. Section 433A picks out of a mass of imprisonment cases
a specific class of life imprisonment cases and subjects it explicitly to a
particularised treatment. Therefore, section 433A applies in preference to any
special or local law because section 5 expressly, declares that specific
provisions, if any, to the contrary will prevail over any special or local law.
[1225 G-H, 1226 A-C] Hakim Khuda Yar v. Emperor A.I.R. 1940 Lah. ]29; Baldeo
Bikram Sardar & Ors. v. Emperor A.I.R.
1941 Bom. 146, dissented from.
In Re Net Book Agreement 1957  3 All
E.R. QBD 751, quoted with approval.
19. It is trite law that civilised criminal
jurisprudence interdicts retroactive impost of heavier suffering by a later
law. Ordinarily, a criminal legislation must be so interpreted as to speak
futuristically. While there is no vested right for any convict who has received
a judicial sentence to contend that the penalty should be softened and that the
law which compels the penalty to be carried out hl full cannot apply to him, it
is the function of the court to adopt a liberal construction when dealing with
a criminal statute in the ordinary course if things.
This humanely inspired canon, not applicable
to certain terribly antisocial categories may legitimately be applied to s.
433A. (The sound rationale is that expectations of convicted citizens of
regaining freedom on existing legal practices should not be frustrated by
subsequent legislation or practice unless the language is beyond doubt).
Liberality in ascertaining the sense may ordinarily err on the side of liberty
where the quantum of deprivation of freedom is in issue. In short, the benefit
of doubt, other things being equal, must go to the citizen in penal statute.
[1236 A-D] The plain meaning of ' is" and "has been" is
"is" and "has been' only and, therefore, these expressions refer
lo "after this Section comes into force". "Is" and
"has" are not words which are weighed in the scale of grammar nicely
enough in this Section and, therefore, over-stress on the present tense and the
present-perfect tense may not be a clear indicator. The general rule bearing on
ordinary penal statutes in their construction must govern this. case. [1236 F,
G, H, 1237 A] Boucher Pierre Andre v. Supdt. Central Jail, Tihar.
 I S.C.R. 192 at 1 95, followed.
20. When a person is convicted in appeal, it
follows that the appellate court has exercised its power in the place of the
original court and the guilt, conviction and sentence must be substituted for
and shall have retroactive effect from the date of judgment of the trial court.
The appellate conviction must relate back to the date of the trial court's
verdict and substitute it. In this view, even if the appellate court reverses
an earlier acquittal rendered before section 433A came into force but allows the
appeal and convicts the accused after section 433A came into force, such
persons will also be entitled to the benefit of the remission system prevailing
prior to section 433A on the basis 1201 which has been explained. An appeal is
a continuation of an appellate judgment as a replacement of the original
21. The President is symbolic, the Central
Government is the reality even as the Governor is the formal head and sole
repository of the executive power but is incapable of acting except on, and
according to, the advice of his council of ministers. The upshot is that the
State Government, whether the Governor. likes it or not, can advise and not
under Article 161, the Governor being bound by that advice. The action of
commutation and release can thus be pursuant to a governmental decision and the
order may issue even withhold the Governor's approval although, under the Rules
of Business and as a matter of constitutional courtesy, it is obligation that
the signature of the Governor should authorise the pardon, commutation or
release. The position is substantially the same regarding the President. It is
not open either to the President or the Governor to take independent decision
or direct release or refuse release of any one of their own choice. It is
fundamental to the Westminster system that the Cabinet rules and the Queen
reigns. The President and the Governor, be they ever so high in textual
terminology, are but functional euphemisms promptly acting on and only on the
advice of the Council of Ministers save in a narrow area of power. So, even
without reference to Article 367(1) and ss. 3(8)(b) and 3(60)(b) of the General
Clauses Act, 1897, that in the matter of exercise of the powers under Articles
72 and 161, the two highest dignitaries in our constitutional scheme act and
must act not on their own judgment but in accordance with the aid and advice of
the ministers. Article 74, after the 42nd Amendment silences speculation and
obligates compliance. The Governor vis a vis his Cabinet is no higher than the
President save and narrow area which does not include Article 161. The
constitutional conclusion is that the Governor is but a shorthand expression
for the State Government and the President is an abbreviation for the Central
Government. [1239 C-H, 1240A-B] Shamsher Singh & Anr, v. State of Punjab,
 1 S.C.R. 814, applied.
22. Victimology, a burgeoning branch of
humane criminal justice, must find fulfillment, not through barbarity but by.
compulsory recoupment by the wrong-doer of the damage inflicted, not by giving
more pain to the offender but by lessening the loss of the forlorn. The State
itself may have its strategy of alleviating hardships of victims as part of
Article 41. So the mandatory minimum in section 433A cannot be linked up with
the distress of the dependants [1251 B-C] Observations:
1. Parliamentary taciturnity does not
preclude forensic examination about legislative competency. Nor does it relieve
the Supreme Court as sentinel on the qui vive, from defending fundamental
rights against legislative aggression, if any flagrant excess were clearly made
out. [1211 F-G]
2. Courts cannot abdicate constitutional
obligations even if Parliament be pachydermic and politicians indifferent, with
great respect, ordinarily they are not.
indeed, Judges must go further, on account of
their accountability to the Constitution and the country and clarify that where
constitutional liberties are imperilled judges cannot be non-aligned. But where
counterfeit constitutional I claims are pressed with forensic fervour courts do
not readily oblige by consenting to be stampeded.
Justice is made of sterner stuff, though its
core is like "the gentle rain from heaven" being interlaced with
11213 F-Hl 1202 Per Fazal Ali, J.
1. Section 433A of the Code is
constitutionally valid Section 433A is actually a social piece of legislation
which by one stroke seeks to prevent dangerous criminals from repeating
offences and on the other protects the society from harm and distress caused to
innocent persons. [1256 B]
2. The dominant purpose and the avowed object
of the legislature in introducing section 433A in the Code of Criminal
Procedure unmistakably seems to be to secure a deterrent punishment for heinous
offences committed in a dastardly, brutal or cruel fashion or offences
committed against the defence or security of the country. [1251E-F] Section
433A has advisedly been enacted to apply to a very small sphere and includes
within its ambit only offences under sections 121, 132. 302., 303., 396 etc.,
of the Indian Penal Code, that is to say, only those offence, where death or
life imprisonment are the penalties but instead of death life imprisonment is
given or where a sentence of death is commuted to that of life imprisonment.
Section 433A when it confines its application
only to these categories of offences which are heinous and amount to a callous
outrage on humanity, has taken care of the fact that a sentence out of proportion
of the crime is extremely repugnant to the social sentiments of a civilized
[1252 D-E, 1253 H, 1254 A-B]
3. The deterrent punishment prevents
occurrence of offences by-(i) making it impossible or difficult for an offender
to break the law again,(ii) by deterring not only the offenders but also others
from committing offences, and (iii) punishment or for that matter a punishment
in the form of a long-term imprisonment may be a means to changing a person's
character or personality so that out of some motivation or reasons of a
personal or general nature, the offender might obey the law. [1254G-H, 1255A]
The Parliament in its wisdom chose to act in order to prevent criminals
committing heinous crimes from being released through easy remissions or
substituted form of punishments without undergoing at least a minimum period of
imprisonment of fourteen years which may in fact act as a sufficient deterrent
which may prevent criminals from committing offences. [1256 E-F]
4. No doubt, the reformative form of
punishment on principle, is in fact the prime need of the hour, but before it
can succeed people must be properly educated and realise the futility of
committing crimes. [1255 E-F] In the present distressed and disturbed
atmosphere if deterrent punishment is not resorted to, there will be complete
chaos in the entire country and criminals will be let loose endangering the
lives of thousands of innocent people of our country. In spite of all the
resources at its commands, it will be difficult for the State to protect or
guarantee the life and liberty of all the citizens, if criminals are let loose
and deterrent punishment is either abolished or mitigated. Secondly, while
reformation of the criminal is only one side of the picture, rehabilitation of
the victims and granting relief from the tortures and suffering which are
caused to them as a result of the offences committed by the criminals is a
factor which seems to have been completely overlooked while defending the cause
of the criminals for abolishing deterrent sentences [1256H, 1257 A-B]
5. A person who has deprived another person
completely of his liberty forever and has endangered the liberty of his family
has no right to ask the court to uphold his liberty. Liberty is not a one-sided
concepts nor does Article 21 of the Constitution contemplate such a concept.
If a person commits 1203 a criminal offence
and punishment has been given to him by a procedure established by law which is
free and fair and where the accused has been fully heard, no question of
violation of Article 21 arises when the question of punishment is being
considered. Even so, the provisions of the Code of Criminal Procedure of 1973
do provide an opportunity to the offender, after his guilt is proved to show
circumstances under which an appropriate sentence could be imposed on him.
These guarantees sufficiently comply with the provisions of Article 21. Thus,
while considering the problem of penology courts should not overlook the plight
of victimology and the sufferings of the people who die, suffer or are maimed
at the hands of criminals. [1257C-E]
6. In cases where section 433A applies, no
question of reduction of sentence arises at all unless the President of India
or the Governor choose to exercise their wide powers under Article 72 or
Article 161 of the Constitution which also have to be exercised according to
sound legal principles. Any reduction or modification in the deterrent
punishment would far from reforming the criminal be counter- productive. [1257
7. Parliament by enacting section 433A has
rejected the reformative character of punishment in respect of offences
contemplated by it, for the time being in view of the prevailing conditions in
our country. It is well settled that the legislature understands the needs and
requirements of its people much better than the courts because the Parliament
consists of the elected representatives of the people and if the Parliament
decides to enact a legislation for the benefit of the people, such a
legislation must be meaningfully construed and given effect to so as to
subserve the purpose for which it is meant. [1257 G-H, 1258 A-B]
8. There is no real inconsistency between
section 433A and Articles ?2 and 161 of the Constitution of India.
[1258E] Doubtless, the President of India
under Article 72 and the State Government under Article 161 have absolute and
unfettered powers to grant pardon, reprieves, remissions, etc. This power can
neither be altered, modified or interfered with by any statutory provision.
But, the fact remains that higher the power, the more cautious would be its
exercise. This is particularly so because the present enactment has been passed
by the Parliament on being sponsored by the Central Government itself. It is,
therefore, manifest that while exercising the powers under the aforesaid
Articles of the Constitution neither the President, who acts on the advice of
the Council of Ministers. nor the State Government is likely to overlook the
object, spirit and philosophy of section 433A so as to create a conflict
between the legislative intent and the executive power. It cannot be doubted as
a proposition of law that where a power is vested in a very high authority, it
must- be presumed that the said authority would act properly and carefully
after an objective consideration of all the aspects of the matter. [1258 B-D]
Per Koshal, J. (Generally concurring)
1. The contention that the main object of
every punishment must be reformation of the offender and that the other
objects-deterrence, prevention and retribution-should be relegated to the
background and be brought into play only incidentally is not correct for three
reasons: (i) There is no evidence that all or most of the criminals who are
punished are amenable to re- formation. The matter has been the subject of
social debate and so far as one can judge, will continue to remain at that
level in the foreseeable future; (ii) The question as to which of the various
objects of punishment should be the basis 1204 of a penal provision has, in the
very nature of things, to be left to the Legislature and it is not for the
courts to say which of them shall be given priority, preponderance or
predominance. As it is , the choice must be that of the legislature and not
that of the court and it is not for the latter to advise the legislature which
particular object shall be kept in focus in a particular situation. Nor is it
open to the courts to be persuaded by their own ideas about the propriety of a
particular purpose being achieved by a piece of penal legislation, while
judging its constitutionality. A contrary proposition would mean the stepping
of the judiciary into the field of the legislature which is not permissible. It
is thus outside the scope of the inquiry undertaken by this Court into the
vires of the provisions contained in section 433A to find out the extent to
which the object of reformation is sought to be achieved thereby, the opinion
of great thinkers, jurists, politicians and saints (as to what the basis of a
penal provision should be) notwithstanding; (iii) A careful study of the Penal
Code brings out clearly that the severity of each.
punishment sanctioned by the law is directly
proportional to the seriousness of the offence for which it is awarded. This is
strongly indicative of reformation not being the foremost object sought to be
achieved by the penal provisions adopted by the legislature. A person who has
committed murder in the heat of passion may not repeat his act at all later in
life and the reformation process in his case need not be time- consuming. On
the other hand, a thief may take long to shed the propensity to deprive others
of their good money. If the reformative aspect of punishment were to be given
priority and predominance in every case the murderer may deserve, in a given
set of circumstances, no more than a six months' period of incarceration while
a thief may have to be trained into better ways of life from the social point
of view over a long period, and the death penalty, the vires of which has been
recently upheld by a majority of four in a five Judges Bench of this Court in
Bachan Singh and others v. State of Punjab and others,  2 SCC 684, would
have to be exterminated from Indian criminal law. The argument based on the
object of reformation having to be in the forefront of the legislative purposes
behind punishment is, therefore, fallacious. [1259B-D, G-H, 1260A-H, 1261 A]
2. The contents of section 433A of the Code
of Criminal Procedure (or for that matter any other penal provision) cannot be
attacked in the ground that they are hit by Article 14 of the Constitution
inasmuch as they are arbitrary or irrational because they ignore the
reformative aspect of punishment. [1261 A-B] & ORIGINAL JURISDICTION: Writ
Petitions NOS. 865/79, 641/80, 409, 783, 695, 690, 747, 4346 of 1980, 147/79,
1860/80, 2389, 4115, 1365, 457,869, 4311-12, 813, 2505, 1659, 3784-94, 2602-10,
4376-91, 4392-95, 4404, 1177 of 1980.
(Under Article 32 of the Constitution of
India) Dr. L. M. Singhvi, S. K. Bagga and Mrs. S. Bagga and Nand Lal for the
Petitioners in WPs 865 and 695.
D. R. Mridul, Nemi Chand Chowdhary and Sushil
Kumar Jain for the Petitioners in WP 641.
A. K. Sen, (409) & Uma Datt for the
Petitioners in WPs. 409 and 1365.
1205 L. M. Singhvi. S. K. lain, A. S. Sohal,
Sushil Kumar and A L. K. Pandey for the Petitioners in 783. (WP) R. K. Garg
& Mrs. Urmila Sirur for the Petitioners in WP 690.
K. B. Rohatgi and S. M. Ashri for the
Petitioners in WP 747.
S. N. Kacker, R. N. Kataria, G. K. Bansal
& B. S. Malik for the Petitioners in WPs. 4311-12. 4376-95, 3784-94. 1177.
P. R. Mridul and H. K. Puri for the
Petitioner in WP 147.
5. 5. Khanduja for the Petitioner in WP 1860.
Arun Madon for the Petitioner in WP 2389.
A. S. Sohal, M. C. Dhingra and P. N. Gupta
for the Petitioner in WP 457.
R. L. Kohli and R. C. Kohli for the
Petitioner in WP 869.
P. R. Mridul, A. S. Sohal, M. C. Dhingra and
Lalit Gupta for the Petitioner in WP 813.
L. N. Gupta for the Petitioners in WP 2505.
Srinath Singh, Vijay K. jindal, Sarva Mitter
and M. G.
Gupta for the Petitioners in WP 1659.
A. P. Mohanty & S. K. Sabharwal, Mr. C.
P. Pandey and Lalit Gupta for the Petitioners in WP 2602-10.
R. K. Garg, V. 1. Francis and Sunil K. Jain
for the Petitioners in WP 4404.
V. M. Tarkunde, Govind Mukhotyy and P. K.
Gupta for the Petitioner in 4346 (WP) in person K. Parasaran, Sol. General, M.
K. Banerjee, Addl. Sol.
Genl. and N. Nettar and Miss A. Subhashini
for R. 1 in all WPs. except in 457 & 869.
Badridas Sharma for r. 2 in 865 & r. in
O. P. Rana, S. C. Maheshwari and R. K. Bhatt
for State of U.P. in 865, 4392-95, 4376-91.
O. P. Sharma and M. S. Dhillon for r. in 457
M. C. Bhandare, and M. N. Shroff for r.
(State) in WP 2505.
M. Veerappa for other appearing rr. in WP
P. Ram Reddy and G. N. Rao for r. in WP 4115.
The Judgment of Hon'ble C.J., Bhagwati, and
Krishna Iyer, JJ. was delivered by Iyer, J. Fazal Ali and Koshal, JJ. gave
separate concurring opinions.
1206 KRISHNA IYER, J.-A procession of 'life
convicts' well over two thousand strong, with more joining the march even as
the arguments were on, has vicariously mobbed this court, through the learned
counsel, carrying constitutional missiles in hand and demanding liberty beyond
the bars. They challenge the vires of s. 433A of the Criminal Procedure Code
(Procedure Code, for short) which compels `caging' of two classes of prisoners,
at least for fourteen eternal infernal years, regardless of the benign
remissions and compassionate concessions sanctioned by prison law and human
justice. Their despair is best expressed in the bitter lines of Oscar Wilde I
know not whether Laws be right, or whether Laws be wrong, All that we know who
lie in gaol, Is that the wall is strong;
And that each day is like a year, A year
whose days are long.
(Emphasis added) But broken hearts cannot break
prison walls. Since prisons are built with stones of law, the key to liberation
too is in law's custody. So, counsel have piled up long and learned arguments
punctuated with evocative rhetoric. But Judges themselves are prisoners of the
law and are not free to free a prisoner save through the open sesame of Justice
according to law. Even so, there is a strange message for judges too in the
rebellious words of Gandhiji's quasi-guru David Thoreau:
The law will never make men free; it is men
who have got to make the law free. They are the lovers of law and order who
observe the law when the government breaks it.
The case of the petitioners is that
Parliament has broken the law of the Constitution by enacting s. 433A.
Now, the concrete question and the back-up
facts. All the petitioners belong to one or other of two categories.
They are either sentenced by court to
imprisonment for life in cases where the conviction is for offences carrying
death penalty as a graver alternative or are persons whom the court has
actually sentenced to death which has since been commuted by the appropriate
Governments under 5. 433(a) of the Procedure Code to life imprisonment. The
common 1207 factor binding together these two categories of 'lifers' (if we may
use A his vogue word, for brevity) is obvious. The offences are so serious that
the Penal Code has prescribed 'death' as an alternative punishment although, in
actual fact, judicial compassion or executive clemency has averted the lethal
blow-but at a price, viz., prison tenancy for life. R Before the enactment of
s. 433A in 1978 these 'lifers' we treated, in the matter of remissions and
release from jail, like others sentenced to life terms for lesser offences
which do not carry death penalty as an either/or possibility. There are around
40 offences which carry a maximum sentence of life imprisonment without the
extreme penalty of death as an alternative. The rules of remission and release
were common for all prisoners, and most States had rules under the Prisons Act,
1894 or some had separate Acts providing for shortening of sentences or
variants thereof, which enabled the life-sentencee, regardless of the offence
which cast him into the prison, to get his exit visa long before the full span
of his life had run out- often by about eight to ten or twelve years, sometimes
Then came, in 1978, despite the strident.
peals of human rights of that time, a parliamentary amendment to the procedure
Code and s. 433A was sternly woven, with virtual consensus, into the punitive
fabric obligating the actual detention in prison for full fourteen years as a
mandatory minimum in the two classes of cases where the court could have
punished the offender with death but did not, or where the court did punish the
culprit with death but he survived through commutation to life imprisonment
granted under s.
433(a) of the Procedure Code. All the lifers
lugged into these two categories- and they form the bulk of life- convicts in
our prisons-suddenly found themselves legally robbed of their human longing to
be set free under the remission scheme. This poignant shock is at the back of
the rain of writ petitions under Art. 32; and the despondent prisoners have
showered arguments against the privative provision (s. 433A) as constitutional
anathema and penological atavism, incompetent for Parliament and violative of
fundamental rights and reformatory goals. The single issue, which has
proliferated into many at the hands of a plurality of advocates, is whether s.
433A is void for unconstitutionality and, alternatively, whether the said harsh
provision admits of interpretative liberality which enlarges the basis of early
release and narrow down the compulsive territory of 14-year jail term. Lord
Denning, in the first Hamlyn Lectures and Sir Norman Anderson in the next
before last of the series, emphasised;
1208 ... the fundamental principle in our
courts that where there is any conflict between the freedom of the individual
and any other rights or interests, then no matter how great or powerful those
others may be, the freedom of the humblest citizen shall prevail.
Of course, most of the petitioners belong to
'the poorest, the lowliest and the lost'. For those who listlessly languish waiting
for their date with Freedom, the human hope of going home holds the lamp of
life burning and a blanket ban against release before a brutal span of - full
14 years, even if their habilitation be ever so complete and convincing,
benumbs the very process of restoration which is cardinal to the rationale of
penal servitude. Indeterminate sentences for the same reason, have been
criticised since they have led to a system of sentencing which has worked
substantial hardship and injustice on countless inmates. Indeterminate
sentences generally are much longer and more costly than fixed sentences and
create additional emotional strain on both the inmate and his family, who are
left to wonder when they will be freed.(l) The imprisoned poet, Oscar Wilde,
wrote that courts must know when adjudicating the arbitrariness of long-term
minima implacably imposed in the name of social defence :(2) Something was dead
in each of us, And what was dead was Hope.
xx xx xx The vilest deeds like poison weeds
Bloom well in prison-air:
It is only what is good tn Man That wastes
and withers there:
Pale Anguish keeps the heavy gate, And the
Warder is Despair.
These generalities only serve as a backdrop
to the consideration of the multi-pronged attack on the vires of s.
433A. For judicial diagnosis, we must read it
whole before dissecting into parts:
1209 433A. Notwithstanding anything contained
in section 432, where a sentence of imprisonment for life is imposed on
conviction of a person for an offence for which death is one of the punishments
provided by law, or where the sentence of death imposed on a person has been
commuted under section 433 into one of imprisonment for life, such person shall
not be released from prison unless he had served at least fourteen years of
Piecemeal understanding, like a little
learning, may prove to be a dangerous thing. To get a hang of the whole
subject- matter we must read s 432 ad 433 too.
432. (1) When any person has been sentenced
to punishment for an offence, the appropriate Government may, at any time,
without conditions or upon any conditions which the person sentenced accepts,
suspend the execution of his sentence or remit the whole or any part of the
punishment to which he has been sentenced.
D 433. The appropriate Government may,
without the consent of the person sentenced, commute- (a) a sentence of death,
for any other punishment provided by the Indian Penal Code.
(b) a sentence of imprisonment for life, for
imprisonment for a term not exceeding fourteen years or for fine;
(c) a sentence of rigorous imprisonment, for
simple imprisonment for any term to which that person might have been sentenced
or for fine:
(d) a sentence of simple imprisonment, for
fine. F The Sections above quoted relate to remission and commutation of sentences.
There were similar provisions in the earlier Code corresponding to ss. 432 and
433 (ss. 401 and 402 of the 1898 Code), but s. 433A is altogether new.
'Ay, there's the rub'. It is obvious that s.
432 clothes the appropriate Government with the power to remit the whole or
part of any sentence. The mechanics for exercising this power and the
conditions subject to which the power is to be exercised are also imprinted in
the Section. This is a wide power which, in the absence of s. 433A, extends to
remission of the entire life sentence if Government chooses so to do.
A liberal or promiscuous use of the power of
remission under s. 433(a) may mean that many a murderer or other offender who
could have been given death sentence by the court but has been actually awarded
only life sentence may legally bolt away the very next morning, the very 1210
next year, after a decade or at any other time the appropriate Government is in
a mood to remit his sentence.
Bizarre freaks of remissions, - such, for
instance, as the impertinent happenstance of a Home Minister's 'hallowed'
presence on an official visit to the Prison resulting in remissions of
sentences-have been brought to our notice, making us stagger at the thought
that even high constitutional powers are devalued in practice by those 'dressed
in a little brief authority' thereby encouraging the fallacious impression that
functionaries of our Republic are re-incarnated quasi-maharajas of medieval
vintage ! We will deal with it a little later under Art. 161 of the Constitution
but mention it here to prove what, perhaps, provoked Parliament to enact s.
433A. In many States, we are told, lifers falling within the twin tainted
categories routinely earned remissions under the extant rules resulting in
their release in the matter of a few years. The penological sense of Parliament
was apparently outraged by such extreme abbreviations of life sentences where
the offence was grave as might have invited even death penalty.
The same situation prevailed in regard to
those who had actually been subjected to death penalty but, thanks to s.433(a),
had a commuted sentence of life , imprisonment.
Taking cognizance of such utter punitive
laxity in these two graver classes of cases, the Joint Committee, which went
into the Indian Penal Code (Amendment) Bill, suggested that a long enough
minimum sentence should be suffered by both classes of lifers. The draconian
provision (as some counsel have described it) was the product of the Joint
Committee's proposal to add a proviso to s. 57 of the Penal Code. Its
appropriate place was in the Procedure Code and so s. 433A was enacted when the
Criminal Procedure Code was amended. It was a punitive prescription made to
parliamentary measure which prohibited premature release before the lifer suffered
actual incarceration for 14 years. No opposition to this clause was voiced in
Parliament (Sixth Lok Sabha) so far as our attention was drawn, although that
was, vocally speaking, a period of high tide of human rights (1978).
The objects and Reasons throw light on the
'why' of this new provision:
The Code of Criminal Procedure, 1973 came
into force on the 1st day of April, 1974. The working of the new Code has been
carefully watched and in the light of the experience it has been found
necessary to make a few changes for removing certain difficulties and doubts.
The notes on clauses explain in brief the reasons for the amendments.
1211 The notes on clauses gives the further
Clause 33: Section 432 contains provision
relating to powers of the appropriate Government to suspend or remit sentences.
The Joint Committee on the Indian Penal Code (Amendment) Bill, 1972, had
suggested the insertion of a proviso to section 57 of the Indian Penal Code to
the effect that a person who has been sentenced to death and whose death
sentence has been commuted into that of life imprisonment and persons who have
been sentenced to life imprisonment for a capital offence should undergo actual
imprisonment of 14 years in Jail, since this particular matter relates more appropriately
to the Criminal Procedure Code, a new section is being inserted to cover the
proviso inserted by the Joint Committee.
This takes us to the Joint Committee's
recommendation on s.57 of the Penal Code that being the inspiration for clause 33.
For the sake of completeness, we may quote that recommendation:
Section 57 of the Code as proposed to be
amended had provided that in calculating fractions of terms of punishment,
imprisonment for life should be reckoned as equivalent to rigorous imprisonment
for twenty years.
In this connection attention of the Committee
was brought to the aspect that sometimes due to grant of remission even
murderers sentenced or commuted to life imprisonment were released at the end
of 5 to 6 years.
The committee feels that such a convict
should not be released unless he has served atleast fourteen years of
Shortly put, the parliamentary committee
concerned with the amendments to the Penal Code was seriously upset by the
gross reductions and remissions resulting in premature releases of life
sentences for capital offences. This proposal was transposed into the Criminal
Procedure Code (Amendment) Bill in clause 33 and eventuated in the incarnation
of s. 433A with none in Parliament shedding a human rights tear, although
before us several counsel have turned truly eloquent, even indignant, in the
name of human rights. Of course, parliamentary taciturnity does not preclude
forensic examination about legislative competency.
Nor does it relieve this court, as sentinel
on the qui vive, from defending fundamental rights against legislative
aggression, if any flagrant excess were clearly made out.
We have to examine the legislative history of
ss. 432 and 433 and study the heritage of Arts. 72 and 161 of the Constitution.
But this we will undertake at the appropriate stage. Before proceeding 1212
further, we may briefly formulate the contentions which have been urged by wave
after wave of counsel. The principal challenge has been based upon an alleged
violation of Arts.72 and 161 by the enactment of s. 433A. Sarvashri Nand Lal,
R.K. Garg, Mridul, Tarkunde and Dr. Singhvi, among others have argued this
point with repetitive vehemence and feeling for personal freedom. The bar is
the bastion. Indeed, Shri Garg was shocked that we were not 'shocked' by such
long incarceration being made a statutory condition for release of a 'lifer'
guilty of murder and was flabbergasted at even a faint suggestion that the
President or the Governor might exercise his power of commutation guided, inter
alia, by the parliamentary pointer expressed in s. 433A. The next contention
voiced with convincing vigour by Shri Tarkunde was that s. 433A violated Art.
14 being wholly arbitrary and irrational. Shri Mridul, with persuade flavour,
stressed that s. 433A lacked legislative competency under the Lists and must be
struck down for the additional reason of contravention of Art. 20(1) of the
Constitution and backed his plea with American authorities, Shri Kakkar made an
independent contribution, apart from endorsement of the earlier submissions by
other counsel. The main thrust of his argument, which was ingeniously
appealing, was that the various provisions for remissions under the Prison
Rules and other legislations had their full operation notwithstanding s. 433A,
thanks to the savings provision in s. 5 of the Procedure Code.
Dr. Singhvi, who brought up the rear,
belatedly but eruditely strengthened the arguments of those who had gone before
him by reference to the abortive history of the amendment of s. 302 I.P.C. and
the necessity of having to read down the text of s. 433A in the context of the
story of its birth. Apart from the legislative vicissitudes in the light of
which he wanted us to interpret s. 433A restrictively, Dr. Singhvi treated us
to the provisions of the Irish Constitution and international human rights
norms by way of contrast and desired us to give effect to the rules of
remission at least as directives for the exercise of the high prerogative
powers under Arts. 72 and 161 of the Constitution. Others who appeared in the
many writ petitions made supplementary submissions numerically strong but
lacking legal muscles, some of which we will refer to in passing. One of the
lifers, having been an advocate by profession, chose to appear in person and
made brief submissions in interpretation which did not impress us.
The Union of India, represented by the
learned Solicitor General, has repudiated the infirmities imputed to s. 433A.
We must appreciatively mention that he did tersely meet point by point, with
1213 persuasive precision, juristic nicety, case-law erudition and fair
concession. His submissions have helped us see the issues in perspective and
focus attention on fundamentals without being side-tracked by frills and
There has been much over-lapping inevitable
in plural orality but the impressive array of arguments on a seemingly small
point does credit to the expansive potential of the forensic cosmos but brings
despair when we contemplate the utter chaos in court having regard to the total
litigation crying for justice. A new modus vivendi is as imperative as it is
urgent if the kismet of the court system must survive the challenge-'to be or
not to be'! A preliminary observation may be merited since much argument has
been made on the duty of this court to uphold human rights. Counsel for the
petitioners, who now rightly toll the knell of prisoners' reformative freedom,
have not shown us any criticism in the Press-the Fourth Estate-or by any member
or Party in Parliament or outside, about this allegedly obnoxious provision
repelling rules of remission and legislations for shortening sentences, the
high tide of human rights notwithstanding. Judge Learned Hand's famous warning
about liberty lying in the bosoms of the people comes to mind. Court comes
last; where is the first ? Issues of liberty are healthy politics and those
sincerely committed to human rights must come to the support of poor prisoners
who have no votes nor voice and may perhaps be neglected by human rights
vocalists with electoral appetites. It is a little strange that when no dissent
is raised in Press or Parliament and a legislation has gone through with ease
there should be omnibus demand in court as a last refuge for release of
prisoners detained under a permanent legislation, forgetting the functional
limitations of judicial power.
Nevertheless, we will cover the entire
spectrum of submissions including those based upon fundamental freedoms because
courts cannot abdicate constitutional obligations even if Parliament be
pachydermic and politicians indifferent. (With great respect, ordinarily they
are not.) Indeed, we must go further, on account of our accountability to the
Constitution and the country and clarify that where constitutional liberties
are imperilled judges cannot be nonaligned. But we must remind counsel that
where counterfeit constitutional claims are pressed with forensic fervour
courts do not readily oblige by consenting to be stampeded. Justice is made of
sterner stuff, though its core is like 'the gentle rain from heaven' being
interlaced with mercy. We may now proceed to deal with the principal arguments
and logically we must dispose of the question of legislative 1214 competency of
Parliament to enact a minimum period of detention in prison.
We may safely assume that, but for the bar of
The rules of remission and short-sentencing
legislation would, in probability, result in orders of release by Government of
the thousands of petitioners before us. Thus, it is of central importance to
decide whether Parliament has no legislative competence to enact the impugned
We dismiss the contention of competency as of
little substance. It is trite law that the Lists in the Seventh Schedule
broadly delineate the rubrics of legislation and must be interpreted liberally.
Article 246(2) gives power to Parliament to make laws with respect to any of
the matters enumerated in List III. Entries 1 and 2 in List III (especially
Entry 2) are abundantly comprehensive to cover legislation such as is contained
in s. 433A, which merely enacts a rider, as it were, to ss. 432 and 433(a). We
cannot read into it a legislation on the topic of 'prisons and prisoners'. On
the other hand, it sets a lower limit to the execution of the punishment
provided by the Penal Code and is appropriately placed in the Chapter on
Execution and Sentences in the Procedure Code. Once we accept the irrefutable
position that the execution, remission and commutation of sentences primarily
fall, as in the earlier Code (Criminal Procedure Code, 1898), within the
present Procedure Code (Chapter XXXII), we may rightly assign s.
433A to entry 2 in List III as a cognate
provision integral to remission and commutation, as it sets limits to the power
conferred by the preceding two sections. This Limited prescription as a proviso
to the earlier prescription relates to execution of sentence, not conditions in
prison or regulation of prisoner's life. The distinction between prisons and
prisoners on the one hand and sentences and their execution, remission and
commutation on the other, is fine but real. To bastardize s. 433A as outside
the legitimacy of Entry 2 in List III is to breach all canons of constitutional
interpretation of legislative Lists.
Parliament has competency.
Let us assume for a moment that the laws of
remission and short-sentencing are enacted under Entry 4 of List II.
In that event the States' competency to enact
cannot be challenged. After all, even in prison-prisoner legislation, there may
be beneficient provisions to promote the habilitative potential and reduce
warder-prisoner friction by stick-cum-carrot strategies. Offer of remission
paroles, supervised releases, opportunities for self-improvement by family
contacts, time in community work centres and even meditational centres, can
properly belong to prison legislation. Rewards by remissions, like punishments
by privations are permissible under Entry 4 of List II.
1215 Indeed, progressive rehabilitatory
prison laws which have a dynamic correctional orientation and reformatory destination,
including meaningful intermissions and humane remissions is on the Indian,
agenda of unfulfilled legislations. Apart from these futurological measures, we
have here an existing Central Law, viz. the Prisons Act, 1894 which in s.
59(27) expressly sanctions rules for premature release. Even so, the power of
the State is subject to Art. 246(1) and (2) and so parliamentary legislation
prevails over State legislation. Moreover, Art.
254 resolves the conflict in favour of
parliamentary legislation. If a State intends to legislate under Entry 2 of
List III such law can prevail in that State as against a parliamentary legislation
only if presidential assent has been obtained in terms of Art. 254 (2). In the
present case there is hardly any doubt that s. 433A must hold its sway over any
State legislation even regarding 'prison and prisoners' if its provisions are
repugnant to the Central Law. We may read the Remission Schemes not as
upsetting sentences but as merely providing rewards and remissions for imprison
good conduct and the like. If the sentence is life imprisonment remissions, as
such cannot help as Godse has laid down. If the sentence is for a fixed term,
remissions may help but Sec. 433A does not come in the way. Thus, no
incompatibility between Sec. 433A and remission provisions exists.
This indubitable constitutional position
drove counsel to seek refuge in the limited nature of the non obstante clause
in s. 433A and the savings provision in s. 5 of the Procedure Code itself. The
contention was that s. 433A allowed free play for the rules of remission and
short- sentencing legislation. The narrow scope of the non obstante clause was
the basis of this argument. It excluded the operation of s. 432 only and
thereby implicitly sanctioned the operational survival of Remission Rules made
by the various States. This argument hardly appeals to reason because it fails
to square with the command of the substantive text and virtually stultifies the
imperative part of the Section.
In the province of interpretation, industry
and dexterity of counsel can support any meaning, what with lexical plurality,
case-law prodigality and profusion of canons to support any position. We had
better base ourselves on the plain purpose and obvious sense of the statute
which is a sure semantic navigatory before turning to erudite alternatives.
Oliver Wendel Holmes has wisely said: "It is sometimes more important to
emphasize the obvious than to elucidate the obscure." Another sage counsel
is Frankfurter's three-fold advice :
1216 (1) Read the statute;
(2) read the statute, (3) read the statute !
If we read s. 433A and emphasise the obvious, it easily discloses the dividing
line between sense and non-sense. The fasciculus of clauses (ss. 432, 433 and
433A), read as a package, makes it clear that while the Code does confer wide
powers of remission and com mutation of sentences it emphatically intends to
carve out an extreme category from the broad generosity of such executive
power. The non obstante clause, in terms, excludes s. 432 and the whole mandate
of the rest of the Section necessarily subjects the operation of s. 433(a) to a
serious restriction. This embargo directs that com mutation in such cases shall
not reduce the actual duration of imprisonment below 14 years.
Whether that Section suffers from any fatal
constitutional infirmity is another matter but it does declare emphatically an
imperative intent to keep imprisoned for at least 14 years those who fall
within the sinister categories spelt out in the operative part of s. 433A. The
argument is that the non obstante clause covers only s. 432 and significantly
omits the common phraseology 'or any other law in force' and, therefore, all
other provisions of law which reduce or remit the length of the incarceration
prevail over s. 433A.
In particular, the Prison Rules and local
short-sentencing laws will diminish the length of prison tenancy of all the
lifers, despite the command of s. 433A. Why ? Because the non obstante clause
is limited in nature and excludes only s. 432. The Prisons Act, 1894, is
'existing law' saved by Art. 366(10) and Art. 372(1). Section 59 of that Act
vests rule-making power in States. Specifically s. 59(5) refers to rules
regulating "the award of marks and the shortening of sentences".
Clearly, therefore, the States have the power to make rules on Remission
Systems and many States have, for long, made and worked such rules. They are
intra vires, since even new legislations on remissions and rewards are good
under Entry 4 of List II. These vintage schemes do not vanish with the
enactment of the Constitution but suffer a partial eclipse if they conflict
with and become repugnant to a Central law like the Procedure Code. If s. 433A,
' by sheer repugnancy, forces a permanent holiday on the prison remission laws
of the States vis a vis certain classes of 'lifers', the former must prevail in
situations of irreconcilability. Assuming that Rules under the Prisons Act are
valid and cannot be dismissed as State law, a harmonious reading of s. 433A and
the Prison Rules must be the way out.
Otherwise, the later law must prevail or
implied repeal may be inferred. We may not be 1217 compelled to explore these
ramifications here since the Remission Rules can peacefully co-exist with s.
433A once we grasp the ratio in Godse's case and Rabha's case.
We cannot agree with counsel that the non
obstante provision impliedly sustains. It is elementary that a non obstante
tail should not wag a statutory dog (see for similar idea, "The
Interpretation and Application of Statutes by Reed Dickerson, p. 10). This
court has held, way back in 1952 in Aswini Kumar Ghose that a non obstante
clause cannot whittle down the wide import of the principal part. The enacting
part is clear the non obstante clause cannot cut down its scope.
The learned Solicitor General reinforced the
conclusion by pointing out that the whole exercise of s. 433A, as the notes on
clauses revealed, was aimed at excluding the impact of Prison Remissions which
led to unduly early release of graver 'lifers'. Parliament knew the 'vice', had
before it the State Remission Systems and sought to nullify the effect in a
certain class of cases by use of mandatory language. To read down s. 433A to
give overriding effect to the Remission Rules of the State would render the
purposeful exercise a ludicrous futility. If 'Laws suffer from the disease of
Language', courts must cure the patient, not kill him. We have no hesitation to
hold that notwithstanding the 'notwithstanding' in s. 433A, the Remission Rules
and like provisions stand excluded so far as 'lifers' punished for capital
offences are concerned.
The learned Solicitor General explained why
the draftsman was content with mentioning only s. 432 in the non obstante
clause. The scheme of s. 432, read with the court's pronouncement in Godse's
case (supra), furnishes the clue.
We will briefly indicate the argument and
later expatiate on the implications of Godse's case (supra) as it has an
important bearing on our decision.
Sentencing is a judicial function but the
execution of the sentence, after the courts pronouncement, is ordinarily a
matter for the Executive under the Procedure Code, going by Entry 2 in List III
of the Seventh Schedule. Keeping aside the constitutional powers under Arts. 72
and 161 which are 'untouchable' and 'unapproachable' 1218 for any legislature,
let us examine the law of sentencing, remission and release. Once a sentence
has been imposed, the only way to terminate it before the stipulated term is by
action under ss. 432/433 or Arts. 72/161. And if the latter power under the
Constitution is not invoked, the only source of salvation is the play of power
under ss. 432 and 433(a) so far as a 'lifer' is concerned. No release by
reduction or remission of sentence is possible under the corpus juris as it
stands, in any other way. The legislative power of the State under Entry 4 of
List II, even if it be stretched to snapping point, can deal only with Prisons
and Prisoners, never with truncation of judicial sentences. Remissions by way
of reward or otherwise cannot cut down the sentence as such and cannot, let it
be unmistakably under-stood, grant final exit passport for the prisoner except
by Government action under s. 432(1). The topic of Prisons and Prisoners does
not cover release by way of reduction of the sentence itself. That belongs to
Criminal Procedure in Entry 2 of List III although when the sentence is for a
fixed term and remission plus the period undergone equal that term the prisoner
may win his freedom. Any amount of remission to result in manumission requires
action under s. 432(1), read with the Remission Rules. That is why Parliament,
tracing the single source of remission of sentence to s. 432, blocked it by the
non-obstante clause. No remission, however long, can set the prisoner free at
the instance of the State, before the judicial sentence has run out, save by
action under the constitutional power or under s. 432. So read, the inference
is inevitable, even if the contrary argument be ingenious, that s. 433A
achieves what it wants arrest the release of certain classes of 'lifers' before
a certain period, by blocking s. 432. Arts. 72 and 161 are, of course, excluded
from this discussion as being beyond any legislative power to curb or confine.
We are loathe to loading this judgment with citations
but limit it to two leading authorities in this part of the case. Two
fundamental principles in sentencing jurisprudence have to be grasped in the
context of the Indian corpus juris. The first is that sentencing is a judicial
function and whatever may be done in the matter of executing that sentence in
the shape of remitting, commuting or otherwise abbreviating, the Executive
cannot alter the sentence itself. In Rabha's case, a Constitution Bench of this
Court illumined this branch of law. What is the jural consequence of a
remission of sentence ? 1219 In the first place, an order of remission does not
wipe out the offence, it also does not wipe out the conviction. All that it
does is to have an effect on the execution of the sentence; though ordinarily a
convicted person would have to serve out the full sentence imposed by a court,
he need not do so with respect to that part of the sentence which has been
ordered to be remitted. An order of remission thus does not in any way
interfere with the order of the court;
it affects only the execution of the sentence
passed by the court and frees the convicted person from his liability to
undergo the full term of imprisonment inflicted by the court, though the order
of conviction and sentence passed by the court still stands as it was. The
power to grant remission is executive power and cannot have the effect which
the order of an appellate or revisional court would have of reducing the
sentence passed by the trial court and substituting in its place the reduced
sentence adjudged by the appellate or revisional court. This distinction is
well brought out in the following passage from Weater's "Constitutional
Law" on the effect of reprieves and pardons vis a vis the judgment passed
by the court imposing punishment, at p. 176, para 134:- "A reprieve is a
temporary suspension of the punishment fixed by law. A pardon is the remission
of such punishment. Both are the exercise of executive functions and should be
distinguished from the exercise of judicial power over sentences. 'The judicial
power and the executive power over sentences are readily distinguishable',
observed Justice Sutherland, 'To render a judgment is a judicial function. To
carry the judgment into effect is an executive function. To cut short a sentence
by an act of clemency is an exercise of executive power which abridges the
enforcement of the judgment but does not alter it qua judgment." Though,
therefore, the effect of an order of remission is to wipe out that part of the
sentence of imprisonment which has not been served out and thus in practice to
reduce the sentence to the period already undergone, in law the order of
remission merely means that the rest of the sentence need not be undergone,
leaving the order of conviction by the court and the sentence passed by it
The relevance of this juristic distinction is
that remission cannot detract from the quantum or quality of sentence or its
direct and 1220 side-effects except to the extent of entitling the prisoner to
premature freedom if the deduction following upon the remission has that
Ordinarily, where a sentence is for a
definite team, the calculus of remissions may benefit the prisoner to instant
release at that point where the subtraction results in zero. Here, we are
concerned with life imprisonment and so we come upon another concept bearing on
the nature of the sentence which has been highlighted in Godse's case. Where
the sentence is indeterminate and of uncertain duration, the result of
subtraction from an uncertain quantity is still an uncertain quantity and
release of the prisoner cannot follow except of some fiction of quantification
of a sentence of uncertain duration. Godse was sentenced to imprisonment for
life. He had earned considerable remissions which would have rendered him
eligible for release had life sentence been equated with 20 years of
imprisonment a la s. 55 I.P.C. On the basis of a rule which did make that
equation, Godse sought his release through a writ petition under Art. 32 of the
Constitution. He was rebuffed by this Court. A Constitution Bench, speaking
through Subba Rao, J., took the view that a sentence of imprisonment for life
was nothing less and nothing else than an imprisonment which lasted till the
last breath. Since death was uncertain, deduction by way of remission did not
yield any tangible date for release and so the prayer of Godse was refused. The
nature of a life sentence is incarceration until death, judicial sentence of
imprisonment for life cannot be in jeopardy merely because of long accumulation
of remissions. Release would follow only upon an order under s. 401 of the
Criminal Procedure Code, 1898 (corresponding to s. 432 of the 1973 Code) by the
appropriate Government or on a clemency order in exercise of power under Arts.
72 or 161 of the Constitution. Godse (supra) is authority for the proposition
that a sentence of imprisonment for life is one of "imprisonment for the
whole of the remaining period of the convicted person's natural life". The
legal position has been set out in the context of remissions in life sentence
Unless the said sentence is commuted or
remitted by appropriate authority under the relevant provisions of the Indian
Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment
is bound in law to serve the life term in prison. The rules framed under the Prisons
Act enable such a prisoner to earn remissions-ordinary, special and State 1221
and the said remissions will be given credit towards his term of imprisonment.
For the purpose of working out the remissions the sentence of transportation
for life is ordinarily equated with a definite period. but it is only for that
particular purpose and not for any other purpose. As the sentence of
transportation for life or its prison equivalent, the life imprisonment, is one
of indefinite duration, the remissions so earned do not in practice help such a
convict as it is not possible to predicate the time of his death. That is why
the rules provide for a procedure to enable the appropriate Government to remit
the sentence under s.401 of the Code of Criminal Procedure on a consideration
of the relevant factors, including the period of remissions earned. The question
of remission is exclusively within the province of the appropriate Government;
and in this case it is admitted that, though the appropriate Government made
certain remissions under s. 401 of the Code of Criminal Procedure, it did not
remit the entire sentence. We, therefore, hold that the petitioner has not yet
acquired any right to release.
In Godse's case, Subha Rao, J., also drew the
conceptual lines of 'remission', 'sentence' and 'life- sentence'. 'Remission'
limited in time, helps computation but does not ipso jure operate as release of
But when the sentence awarded by the judge is
for a fixed term the effect of remissions may be to scale down the term to be
endured and reduce it to nil, while leaving the factum and quantum of the sentence
intact. That is the ratio of Rabha (supra). Here, again if the sentence is to
run until life lasts, remissions, quantified in time, cannot reach a point of
zero. This is the ratio of Godse. The inevitable conclusion is that since in s.
433A we deal only with life sentences, remissions lead nowhere and cannot
entitle a prisoner to release. In this view, the remission rules do not
militate against s. 433A and the forensic fate of Godse (who was later released
by the State) who had stock-piled huge remissions without acquiring a right to
release, must overtake all the petitioners until 14 years of actual jail life
is suffered and further an order of release is made either under s. 432 or
Arts. 72/161 of the Constitution.
The next submission urged to show that s.
433A is bad is based on Art. 20(1) of the Constitution. It is a rule of ancient
English vintage that export facto infliction of heavier penalties that
prevailed at the time of commission of the offence is obnoxious. It is
incarnated as Art. 20(1) in our Constitution. The short question is whether the
inflexible insistence on 14 years as a minimum term for release retroactively
enlarges the punishment. Another argument addressed to reach the same
conclusion is that if at the time of the 1222 commission of the offence a
certain benign scheme of remissions ruled. the penalty to which he would then
have been subjected was not the punishment stated in the Penal Code but that
sentence reduced or softened by the Remission Scheme or short-sentencing provision.
On this basis, the lifers would ordinarily have been released well before 14
years which is the harsh but mandatory minimum prescribed by s. 433A. This
indirectly casts a heavier punishment than governed the Crime when it was
Neither argument has force. The first one
fails because s. 302 I.P.C. (or other like offence) fixes the sentence to be
life imprisonment. 14 Years' duration is never heavier than life term. The
second submission fails because a remission, in the case of life Imprisonment,
ripens into a reduction of sentence of the entire balance only when a final
release order is made. Godse (supra) is too emphatic and unmincing to admit of
a different conclusion. The haunting distance of death which is the terminus ad
quem of life imprisonment makes deduction based on remission indefinite enough
not to fix the date with certitude. Thus, even if remissions are given full
faith and credit, the date of release may not come to pass unless all the
unexpired, uncertain balance is remitted by a Government order under s.432. If
this is not done, the prisoner will continue in custody. We assume here that
the constitutional power is kept sheathed.
Let us assume for the sake of argument that
remissions have been earned by the prisoner. In Murphy v. Commonwealth, 172
Mass. 264, referred to by Cooley and cited before us (infra), it has been held
that earned remissions; may not be taken away by subsequent legislation. Maybe,
direct effect of such a privative measure may well cast a heavier penalty.
We need not investigate this position here.
A possible confusion creeps into this
discussion by equating life imprisonment with 20 years imprisonment.
Reliance is placed for this purpose on s. 55
IPC and on definitions in various Remission Schemes. All that we need say, as
clearly pointed out in Godse, is that these equivalents are meant for the
limited objective of computation to help the State exercise its wide powers of
total remissions. Even if the remissions earned have totalled upto 20 years,
still the State Government may or may not release the prisoner and until such a
release order remitting the remaining part of the life sentence is passed, the
prisoners cannot claim his liberty. The reason is that life sentence is nothing
less than life-long imprisonment.
Moreover, the penalty then and now is the
And remission 1223 vests no right to release
when the sentence is life imprisonment. No greater punishment is inflicted by
s. 433A than the law annexed originally to the crime. Nor is any vested right
to remission cancelled by compulsory 14 years jail life once we realise the
truism that a life sentence is a sentence for a whole life. see Sambha Ji
Krishan Ji v.State of Maharashtra, AIR 1974 SC 147 and State of Madhya Pradesh
v. Ratan Singh & ors.  Supp. SCR 552.
Maybe, a difference may exist in cases of
fixed term sentences. Cooley lends support :
Privilege existing at time of commission of
offence (e.g. privilege of earning a shortening of sentence by good behaviour)
cannot be taken away by subsequent statute.
The next submission, pressed by Shri Kakkar
with great plausibility, is that s. 5 of the Procedure Code saves all
remissions, short-sentencing schemes as special and local laws and, therefore,
they must prevail over the Code including s. 433A. Section 5 runs thus :
5. Nothing contained in this Code shall, in
the absence of a specific provision to the contrary, affect any special or
local law for the time being in force, or any special jurisdiction or power
conferred, or any special form of procedure prescribed, by any other law for
the time being in force.
The anatomy of this savings section is
simple, yet subtle. Broadly speaking, there are three components to be
separated. Firstly, the Procedure Code generally governs matters covered by it.
Secondly, if a special or local law exists covering the same area, this latter
law will be saved and will prevail. The short-sentencing measures and remission
schemes promulgated by the various States are special and local laws and must
over-ride. Now comes the third component which may be clinching. If there is a
specific provision to the contrary, then that will over-ride the special or
local law. Is s. 433A a specific law contra ? If so, that will be the last word
and will hold even against the special or local law.
Three rulings were cited by the learned
Solicitor General to make out that s. 433A is a specific law. A Bombay case in
AIR 1941 Bom. 146, he frankly stated, takes a contrary but scrappy view. The
Judicial Committee in Pakala Narayana Swamy v. The King Emperor inconclusively
considered what is a specific law, in a similar setting. Two later cases of
Lahore [a full bench of five .
1224 judges] and of Allahabad [a bench of
three judges] discussed almost an identical issue and held that some provisions
of the Procedure Code were specific sections to the contrary and would repeal
any special law on the subject.
Section 1(2) of the Criminal Procedure Code,
1898, is the previous incarnation of s. 5 of the Present Code and contains
virtually the same phraseology. The expression 'specific provision to the
contrary' in the Code of 1898 was considered in the two Full Bench Decisions
(supra). The setting in which the issue was raised was precisely similar and
the meaning of 'specific provision to the contrary' was considered by Young,
C.J. in the Lahore case where the learned Judge observed :
The word 'specific' is defined in Murray's
Oxford Dictionary as 'precise or exact in respect of fulfillment, conditions or
terms; definite, explicit'.
In a similar situation, the same words fell
for decision in the Allahabad case where Braund, J., discussed the meaning of
'specific provision' in greater detail and observed :
I have, I confess, entertained some doubt as
to what exactly the words 'specific provisions' mean. I think first, that they
must denote something different from the words 'express provision'. For a
provision of a statute to be an 'express' provision affecting another statute
or part of it, it would have, I think, to refer in so many words to the other
statute or to the relevant portion of it and also to the effect intended to be
produced on it. Failing this, it could hardly be aid to be 'express'.... But
the word 'specific' denotes, to my mind, something less exacting than the word
'express'. It means, I think, a provision which 'specifies' that some 'special
law' is to be 'affected' by that particular provision. A dictionary meaning of
the very 'to specify' as given in Murray's New English Dictionary, is 'to
mention, speak of or name (something) definitely or explicitly; to set down or
state categorically or particularly....' and a meaning of the adjective
'specific' in the same dictionary is 'precise definite, explicit.. exactly
named or indicated or capable of being so, precise, particular.' What I think
the words 'specific provision' really mean therefore is that the particular
1225 provision of the Criminal Procedure Code must, in order to 'affect' the
'special.. law,' clearly indicate, in itself and not merely by implication to
be drawn from the statute generally, that the 'special law' in question is to
be affected without necessarily referring to that 'special law' or the effect
on it intended to be produced in express terms. Lord Hatherley in (1893) 3 AC
933 at 938 has defined the word 'specific' in common parlance of language as
meaning 'distinct from general' .. 'It would, no doubt, be possible to multiply
illustrations of analogous uses of the words 'specify' and 'specific'. But this
is I think sufficient to show that, while requiring something less than what is
'express', they nevertheless require something which is plain certain and
intelligible and not merely a matter of inference or implication to be drawn
from the statute generally.
That, to my mind, is what is meant by the
word 'specific' in s. 1(2), Criminal P.C.In an English case Buckley J., has
interpreted the Word 'specific' to mean explicit and definable. While Indian
usage of English words often loses the Atlantic flavour and Indian Judges owe
their fidelity to Indian meaning of foreign words and phrases, here East and
West meet and 'specific' is specific enough to avoid being vague and general.
Fowler regards this word related to the central notion of species as
distinguished from genus and says that it is 'often resorted to by those who
have no clear idea of their meaning but hold it to diffuse an air of educated
precision'. Stroud says 'specifically...' means 'as such'.
Black gives among other things, the following
meaning for 'specific': definite, explicit; of an exact or particular nature...
particular; precise. While legalese and English are sometimes enemies we have
to go by judicialese which is the draftsman's lexical guide.
The contrary view in the Bombay case is more
assertive than explanatory, and ipse dixit, even if judicial, do not validate
themselves. We are inclined to agree with the opinion expressed in the Lahore
and Allahabad cases (supra).
A thing is specific if it is explicit. It'
need not be express. The anti-thesis is between 'specific' and 'indefinite' or
'omnibus' and between 'implied' and 'express'. What is precise, exact definite
and explicit is specific.
1226 Sometimes, what is specific may also be
special but yet they are distinct in semantics. From this angle, the Criminal
Procedure Code is a general Code. The remission rules are special laws but s.
433A is a specific, explicit, definite provisions dealing with a particular
situation. Or narrow class of cases, as distinguished from the general run of
cases covered by s. 432 Cr. P. C. Section 433A picks out of a mass of
imprisonment cases a specific class of life imprisonment cases and subjects it
explicity to a particularised treatment. It follows that s. 433A applies in
preference to any special or local law because s. 5 expressly declares that
specific provisions, if any, to the contrary will prevail over any special or
local law. We have said enough to make the point that 'specific' is specific
enough and even though 'special' to 'specific' is near allied and 'thin
partition do their bounds divide' the two are different. Section 433A escapes
the exclusion of s. 5.
The stage is now set for considering the
contention that S. 433A violates Art. 14 for two reasons. It arbitrarily
ignores the unequal, yet vital, variations of crimes and criminals so relevant to
punishment in. Our age of penological enlightenment and subjects them equally
to a terrible term of 14 years in jail as a mandatory minimum.
Treating unequals equally is anathema for
Art. 14. Secondly, the Section inflicts, with anti-reformative inhumanity and
Procrustean cruelty, a prolonged minimum of 14 years' servitude on every life
arbitrarily disregarding the audit report on progressive healing registered by
some as against others. The capricious insistence on continued detention of a
prisoner long after he has been fully resocialised is a penological overkill,
purposeless torture and constitutional blunder. These two inter-twined
arguments cannot be appreciated without investigating the rational penal policy
of our system and the brutal impertinence of rigorous incarceration beyond the
point of habilitation, what with Mahatma Gandhi's therapeutic approach to
criminals and Maneka Gandhi's accent on fairness in privative processes where
personal liberty is involved.
The larger issues of sentencing legitimacy
and constitutionality have been examined by this court in the past and throws
us well into a different level of criminal justice. Of course, finer
propositions need a sublime perception for fuller appreciation as the learned
Judges of this Court have invariably shown. Here, the proposition is- Mr.
Tarkunde and Mr. Garg, et al, have pressed this to excess the primary purpose
of prison sentence is hospital setting and 1227 psychic healing, not traumatic
suffering, curative course, not retributive force, presented these days as a
sophisticated variant called public denunciation. This submission excludes
other punitive objectives such as deterrence through example of prolonged pain
and retribution through condign infliction. A penological screening is fundamental
to sentencing jurisprudence but, for our present pursuit, the only relevant
point is whether rehabilitation is such a high component of punishment as to
render arbitrary, irrational and therefore, unconstitutional, any punitive
technique which slurs over prisoner reformation. We feel that correctional
strategy is integral to social defence which is the final justification for
punishment of the criminal. And since personal injury can never psychically
heal, it is obdurate obscurantism for any legislative criminologists to reject
the potential for prisoner re-socialisation from the calculus of reformative
remission and timely release. The compulsive span of 14 years in custody,
whether the man within the 'lifer' has become an angel by turning a new page or
remains a savage, thanks to jail regimen and jailor relations, sounds
insensitive. Karuna, daya, prema and manavata, are concepts of spiritualised
humanism secularly implicit in our constitutional preamble. Alienation of our
justice system from our cultural quintessence, thanks to the hang-over of the
colonial past, may be the pathological root of the brute penology which
confuses between crime and criminal.
Torturing the latter to terminate the former
is not promotional of human dignity and fair legal process. Be that as it may,
this court in Sunil Batra, has observed :
The winds of change must blow into our
carcers and self-expression and self-respect and self-realization creatively
substituted for the dehumanising remedies and 'wild-life' techniques still
current in the jail armoury. A few prison villains-they exist-shall not make
martyrs of the humane many; and even from these few, trust slowly begets trust.
Sarvodaya and antyodaya have criminological dimensions which our social justice
awareness must apprehend and actualize. I justify this observation by reference
to the noble but inchoate experiment (or unnoticed epic) whereby Shri Jai
Prakash Narain redemptively brought murderously dangerous dacoits of Chambal
Valley into prison to turn a responsible page in their life in and out of jail.
The rehabilitative follow-up was, perhaps, a flop.
* * * * * 1228 Prison laws, now in bad shape,
need rehabilitation; prison staff, soaked in the Raj past, need reorientation;
prison houses and practices, a hangover of the die-hard retributive ethos, need
reconstruction; prisoners, these noiseless, voiceless human heaps or for
therapeutic technology, and prison justice, after long jurisprudential
gestation, must now be re-born through judicial midwifery, if need be.
Again, We share the concern and anxiety of
our learned brother Krishna Iyer, J. for reorientation of the outlook towards
prisoners and the need to take early and effective steps for prison reforms.
Jail Manuals are largely a hangover of the past, still retaining anachronistic
provisions like whipping and the ban on the use of the Gandhi cap. Barbaric
treatment of a prisoner from the point of view of his rehabilitation and
acceptance and retention in the mainstream of social life, becomes
counter-productive in the long run.
The Model Jail Manual, prepared by the Indian
Prison echelons plus a leading criminologist, Dr. Panakkal, back in 1970, has
stated, right at the outset, in its Guiding Principles:
Social reconstruction and rehabilitation as
objectives of punishment attain paramount importance in a Welfare State The
supreme aim of punishment shall be the protection of society. through the
rehabilitation of the offender Imprisonment and other measures which result in
cutting off an offender from the outside world are afflictive by the very fact
of taking away from him the right of self-determination. Therefore the prison
system should not except as incidental to justifiable segregation or
maintenance of discipline, aggravate the suffering inherent in such a
The institution should be a centre of
correctional treatment, where major emphasis shall be given on the re-education
and reformation of the offender. The impacts of institutional environment and
treatment shall aim at producing constructive changes in the offender, as would
be having profound and lasting effects on his habits, attitudes, approaches and
on his total value schemes of life.
1229 One of the subjects dealt with in the
Manual is 'release planning'. We need nat tarry long to tell the truth that
every sinner has a future, given the social chance, and every prisoner a finer
chapter as a free person, given the creative culturing of his psychic being.
The measure of this process is not the mechanical turn of the annual calendar
fourteen times over, but the man-making methodology of the correctional campus,
together with individual response. It follows that an inflexible 14 year term
for lifers under s.433A eschews chances of human change and puts all the penal
eggs in the linear cellular basket. May be, the failure of prisons (this is the
title of a recent book by a competent criminologist) has not occurred to
Parliament when it enacted s. 433A or the Gandhian gospel has, by 1978, lost
its living impact on the parliamentary majority in the field of prison reform.
We cannot speculate on these imponderables and must do our batting from within
Surely arbitrary penal legislation will
suffer a lethal blow under Art. 14. But the main point here is whether s.433A
harbours this extreme vice of arbitrariness or irrationality. We must remember
that Parliament as legislative instrumentality, with the representatives of the
people contributing their wisdom to its decisions, has title to an initial
presumption of constitutionality. Unless one reaches far beyond unwisdom to
absurdity, irrationality, colourability and the like, the court must keep its
A Judicial journey to the penalogical
beginning reveals that social defence is the objective. The triple purposes of
sentencing are retribution, draped sometimes as a public denunciation,
deterrence, another scary variant, with a Pavlovian touch, and in our era of
human rights, rehabilitation, founded on man's essential divinity and ultimate
retrievability by raising the level of consciousness of the criminal and
society. We may avoid, for the nonce, theories like 'society prepares the
crime, the criminal commits its;' or that crime is the product of social
excess' or that 'poverty is the mother of crime'.
Judicial pronouncements are authentic
guidance and so a few citations may serve our purpose. In Sobraj, this court
It is now well-settled, as a stream of
rulings of courts proves, that deterrence, both specific and general
rehabilitation and institutional security are vital considerations. Compassion
wherever possible and cruelty only where inevitable, is the art of correctional
confinement. When prison policy advances such a valid goal, the court will not
1230 The overall attitude was incorporated as
a standard by the American National Advisory Commission on Crime, Justice
Standards and Goals:
In a series of decisions this court has held
that, even though the Governmental purpose be legitimate and substantial, that
Purpose cannot be pursued by means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved. The breadth of
legislative abridgment must be viewed in the light of loss drastic means for
achieving the same basic purpose.
Earlier, this court in Hiralal Mullick's case
The dignity and divinity, the self-worth and
creative potential of every individual is a higher value of the Indian people,
Again in Mahammud Giasuddin, a bench
belighted in the penological basics:
It is thus plain that crime is a pathological
aberration, that criminal can ordinarily be redeemed, that State has to
rehabilitate rather than avenge. The sub-culture that leads to anti-social
behaviour has to be countered not by undue cruelty but by re- culturisation.
Therefore the focus of interest in penology is the individual, and the goal is
salvaging him for society. The infliction of harsh and savage punishment is
thus a relic of past and regressive times. The human to day views sentencing as
a process of reshaping a person who has deteriorated into criminality and the
modern community has a primary stake in the rehabilitation of the offender as a
means of social defence. We, therefore, consider a therapeutic rather than an
'in terrorem' outlook, should prevail in our criminal courts, since brutal
incarceration of the person merely produces laceration of his mind. In the
words of George Bernard Shaw: 'if you are to punish a man retributively, you
must injure him. If you are to reform him, you must improve him and, men are
not improved by injuries'.
We emphasise here that Remission Schemes
offer healthy motivation for better behaviour, inner improvement and
development of social fibre. While eccentricities of remission reducing a
murderer's life term to short spells of 2 or 3 years in custody may scandalise
penologists, such fear may not flabbergast any sociologist if by sheer 1231
good behaviour, educational striving and correctional success, a prisoner earns
remission enough for release after serving 7 or 8 years.
It makes us blush to jettison Gandhiji and
genuflect before Hammurabi abandon reformatory humanity and become addicted to
the 'eye for an eye' barbarity: Said Churchill:
The mood and temper of the public with regard
to the treatment of crime and criminals is one of the most unfailing tests of
the civilisation of any country.
The mood and temper of our Constitution
certify that arbitrary cruelty to the prisoner and negative attitude to
reformation of the individual are obnoxious. Even the recent ruling in Bachan
Single on the vires of death penalty upholds this high stance.
Basic to the submissions of counsel for the
petitioners is the humane assumption that the object of sentencing is not
deterrent, torture simpliciter but mainly the rehabilitation of the prisoner.
Human dignity, emphasised in the Preamble, compassion, implicit in the
prescription of fair procedure in Art. 21, and the irrationality of arbitrary
incarceratory brutality violative of Art. 14 invest the demand for a
reformatory component in jail regimen with the status of a constitutional
requirement. We need not prolong the judgment by substantiation of this
proposition because the learned Solicitor General, with sweet reasonableness
and due regard to the precedents of this court, Has not disputed that reform of
the prisoner is one of the major purpose of punishment.
The sequiter is irresistible. Any provision
that wholly or substantially discards the relevancy of restoration of the man
mired by criminality is irrational. How is s. 433A affected by this vice? The
argument is that 14 years in prison is an inordinate spell which is not only an
unrewarding torment but a negation of reformation-indeed, the promotion of
embittered hostility to society and hardening of, brutality counter-productive
of hopeful humanization.
The argument pressed before us is that s.
433A does injustice to the imperative of reformation of the prisoner.
Had his in-prison good behaviour been
rewarded by reasonable remissions linked to improved social responsibility,
nurtured by familial contacts and liberal 1232 parol, cultured by predictable,
premature release, the purpose of habilitation would have been served. If
433A in this case rudely refuses to consider
the subsequent conduct of the prisoner and forces all convicts, good, bad and
indifferent, to serve a fixed and arbitrary minimum it is an angry flat
untouched by the proven criteria of reform.
Surely, an avant garde penologist or T.M.
Oriented jurist would regard enlightened sentencing as abbreviated life behind
bars coupled with rehabilitatory exposure inside and outside. May be, he may
even criticise the draconian duration, blindly running beyond 14 years, as
penological illiteracy. Criminologists concentrate on the activisation of the
creative intelligence of the culprit by various procedures and by his release
from jail at a cut-off point when the jural-netural tests of mental-moral
normalcy, otherwise called Rehabilitation Indices, are satisfied. To violate
these research results and to be addicted to a 14- year prison term is a penal superstition
without any rational support and, therefore, is arbitrary. Why not 20 years? or
a whole life? No material, scientific cultural or other has been placed for our
consumption by the State indicating that if a murderer does not spend at least
14 endless years inside jail he will be a social menace when released. Sadism
and impressionism even if it incarnates as legislation, cannot meet the social
science content of Arts.
14 and 21 which are part of the suprema lex.
While the light of this logic is not lost on
US and the non-institutional alternatives to prison as the healing hope of
humane habilitation are worthy of exploration, we are in the province of
constitutionality where the criteria are different.
We have no doubt that reform of the prisoner,
as a social defence strategy, is high on the agenda of Indian penal policy
reform. The question is whether a 14-year term as a mandatory minimum, is so
extremist and arbitrary as to become unconstitutional, even assuming the
rehabilitatory recipe to be on our penological pharmacopea. We cannot go that
far as judges, whatever our personal dispositions may incline us were we
Two broad grounds to negative this extreme
position strike us. Deterrence, as one valid punitive component has been
accepted in Sunil Batra by a five-judge bench (see Desai J. supra). So, a
measure of minimum incarceration of 14 years for the gravest class of crimes
like murder cannot be considered shocking, having regard to the escalation of
Horrendous crime in the country and the fact that this court has upheld even
death penalty (limited though to 'the 1233 rarest of rare cases'. The time has
not, perhaps, arrived to exclude deterrence and even public denunciation
Secondly, even For correctional therapy, a
long 'hospitalisation' in prison may sometimes be needed. To change a man's
mind distorted by many baleful events, many primitive pressures, many evil
companies and many environmental pollutions, may not be an instant magic but a
slow process-assuming that correctional strategies are awarely available in
prisons, 'a consummation devoutly to be wished' but notoriously rather
We agree that many studies by criminologists
high- powered commissions and court pronouncements have brought home the truth
of the lie; once a murderer always a murderer and, therefore, early release
will spell a hell of manslaughter. Social scientists must accept Robert
Ingersoll's tart remark: "In the history of the world, the man who is
ahead has always been called a heretic". We, as Judges, have no power to
legislate but only to invigilate.
In the current state of things and ethos of
society we have to content ourselves with the thought that, personal opinions
apart, a very long term in prison for a murderer cannot be castigated as so
outrageous as to be utterly arbitrary and violative of rational classification
between lifers and as so blatantly barbarous as to be irrational enough to be
struck down as ultra vires. Even the submission that no penal alibi justifies a
prisoner being kept walled off from the good earth if, by his e. conduct,
attainments and proven normalisation, he has become fit to be a free citizen,
cannot spell unconstitutionality. And the uniform infliction of a 14-year
minimum on the transformed and the unkept is an unkind disregard for redemption
Even so, to overcome the constitutional
hurdle much more material, research results and specialist reports, are needed.
How to assert who has become wholly habilitated and who not, unless you rely on
the Rehabilitation Index? Currently, we have theories, and experiments awaiting
social scientists' certificates of certitude.
For instance, deep relaxation recipes and
meditational techniques, researched with scientific tools, well-known and
sophisticated experiments, neurological and psychological, claim to have
achieved a break- through and have put across to the scientific world a
Rehabilitation Index. This complex of tests reference to which, culled from a
publication titled "Criminology and Consciousness, Series I,"
(developed by the Maharshi European Research University according to 1234
scientifically established standard measures of successful rehabilitation), as
credentials enough to be taken cognisance of in some Indian Prisons. There are
sceptics and skepticism is good because it 'is the chastity of the intellect'.
But to dogmatic disbelievers one may only say with John Dewey: "Every
great advance in science has issued from a new audacity of imagination".
But courts, when assaying constitutionality, have to wait till the
Establishment accepts it in some measure. So, we are not now in a position to
assert, as Court, that at least a 14-year term for a murderer is arbitrary,
unusually cruel and unconstitutional. We hold against violation of Art. 14.
Another argument based on Art. 14 may also be
briefly dealt with, although we are not carried away by it. In terms, S.433A
applies only To two classes of life-imprisonment. The true content of the
provision is that in the two specific categories specified in s. 433A the
prisoner shall actually suffer the minimum jail tenure set in it. There are
around forty-one other offences, including attempt to murder, homicide not
amounting to murder, grievous hurt, dacoity and breach of trust, where life
sentence is the maximum. But the framers of the Penal Code have classified
maximum sentences principally on the basis of gravity of the crime. By that
token, where a terrible crime has been committed the Penal Code has prescribed
death penalty as the maximum. The attack on its constitutionality has recently
been repulsed by this Court. The main mass of cases where life imprisonment is
actually inflicted by the courts belongs to the "either or" category
where the court has the responsible discretion to impose death penalty or life
imprisonment and actually awards only life imprisonment. Even in cases where
the court sentences a convict to death the appropriate Government often by
virtue of s. 433(a) reduces the lethal rigour to life term. These classes of
cases are categorised separately by s. 433A. When the crime is so serious as to
invite death penalty as a possible sentence, Parliament, in its wisdom, takes
the view that ameliorative judicial award or statutory commutation by the
executive should not devalue the sterness of the sentence to be equated with
the life sentence awarded for the obviously less serious clauses of offences
where the law itself has fixed a maximum of only life imprisonment, not death
penalty as a harsher alternative. The logic is lucid although its wisdom, in
the light of penological thought, is open to doubt. We have earlier stated the
parameters of judicial restraint and, as at present advised, we are not
satisfied that the classification is based on an irrational differentia
unrelated to the punitive end of social defence. Suffice it to say here, the
classification, if due respect to Parliament's choice is given, 1235 cannot be
castigated as a capricious enough to attract the lethal consequence of Art. 13
read with Art. 14. Law and Life deal in relatives, not absolutes. No material,
apart from humane hunches, has been placed by counsel whose focus has been
legal, not social science-oriented, to show that prolonged jail life reaches a
point of no return and is unreasonable. On the materials now before us, we do
not strike down s. 433A on the score of capricious classification. Some day,
when human sciences have advanced far beyond and non-institutional alternatives
have fully developed, parliamentary faith in the fourteen-year therapy may well
change or be challenged as unscientific credulity and superstitious cruelty.
But that is a far-away day and futurology is not a forensic specialty. The womb
of tomorrow may hold, like Krishna to Kamsa, lethal omen to the faith of
to-day. We rest content with Bertrand Russel's words of scepticism.
The essence of the Liberal outlook lies not
in what opinions are held, but in how they are held:
instead of being held dogmatically they are
held tentatively, and with a consciousness that new evidence may at any moment
lead, to their abandonment. This is the way opinions are held in science, as
opposed to the way in which they are held in theology.
The major submissions which deserve high
consideration may now be taken up. They are three and important in their outcome
in the prisoners' freedom from behind bars. The first turns on the
'prospectivity' (loosely so called) or otherwise of s. 433A. We have already
held that Art. 20(1) is not violated but the present point is whether. On a
correct construction. those who have been convicted prior to the coming into
force of s. 433A are bound by the mandatory limit. If such convicts are out of
its coils their cases must be considered under the Remission Schemes and
'Short- sentencing' laws. The second plea, revolves round 'pardon
jurisprudence', if we may coarsely call it that way, enshrined impregnably in
Arts. 72 and 161 and the effect of s. 433A thereon. The power to remit is a
constitutional power and any legislation must fail which seeks to curtail its
scope and emasculate its mechanics. Thirdly, the exercise of this plenary power
cannot be left to the fancy frolic or frown of Government, State or Central,
but must embrace reason, relevance and reformation, as all public power in a
republic must. On this basis; we will have to scrutinise and screen the
survival value of the various Remission Schemes and short-sentencing projects,
not to test their supremacy over s. 433A, but to train the wide and beneficient
power to remit life sentences without the hardship of fourteen fettered years.
1236 Now to the first point. lt is trite law
that civilised criminal jurisprudence interdicts retroactive impost of heavier
suffering by a later law. Ordinarily, a criminal legislation must be so
interpreted as to speak futuristically. We do not mean to enter the area of
20(l) which has already been dealt with. What
we mean to do is so to read the predicate used in s. 433A as to yield a natural
result, a humane consequence, a just infliction.
While there is no vested right for any convict
who has received a judicial sentence to contend that the penalty should be
softened and that the law which compels the penalty to be carried out in full
cannot apply to him, it is the function of the court to adopt a liberal
construction when dealing with a criminal statute in the ordinary course of
things. This humanely inspired canon, not applicable to certain terribly
anti-social categories may legitimately be applied to s. 433A. (The sound
rationale is that expectations of convicted citizens of regaining freedom on
existing legal practices should not be frustrated by subsequent legislation or
practices unless the language is beyond doubt). Liberality in ascertaining the
sense may ordinarily err on, the side of liberty where the quantum of
deprivation of freedom is in issue. In short, the benefit of doubt, other
things being equal, must go to the citizen in penal statute. With this
prefatory caution, we may read The Section. "Where a sentence of
imprisonment for life is imposed on conviction of a person........ such person
shall not be released from prison unless he had served atleast fourteen years
of imprisonment". Strict conformity to tense applied by a precision
grammarian may fault the draftsman for using the past-perfect tense. That
apart, the plain meaning of this clause is that "is" means
"is" and, therefore, if a person is sentenced to imprisonment for
life after s. 433A comes into force, such sentence shall not be released before
the 14-year condition set-out therein is fulfilled. More precisely, any person
who has been convicted before s. 433A comes into force goes out of the pale of
the provision and will enjoy such benefits as accrued to him before s. 433A
entered Chapter XXXII. The other clause in the provision suggests the
application of the mandatory minimum to cases of commutation which have already
been perfected, and reads: "Where a sentence of death..... has been
commuted under s. 433 into one of imprisonment for life, such person shall not
be released from prison unless he had served atleast fourteen years of
imprisonment." The draftsman, apparently, is not a grammarian. He uses the
tenses without being finical. We are satisfied that even this latter clause
merely means that if a sentence of death has been commuted after this Section
comes into force, such person shall not be released until the condition therein
is complied with. 'Is' and 'has' are not words which 1237 are weighed in the
scales of grammar nicely enough in this Section and, therefore, over-stress on
the present tense and the present-perfect tense may not be a clear indicator.
The general rule bearing on ordinary penal statutes in their construction must
govern this case. In another situation, interpreting the import of "has
been sentenced" this court held that "the language of the clause is
neutral" regarding prospectivity. It inevitably follows that every person
who has been convicted by the sentencing court before December 18, 1978, shall
be entitled to the benefits accruing to him from the Remission Scheme or short-sentencing
project as if s. 433A did not stand in his way. The Section uses the word
'conviction' of a person and, in the context, it must mean 'conviction' by the
sentencing court; for that first quantified his deprivation of personal
We are mindful of one anomaly and must
provide for its elimination. If the trial court acquits and the higher court
convicts and it so happens that the acquittal is before S.433-A came into force
and the conviction after it, could it be that the convicted person would be denied
the benefit of prospectivity and consequential non-application of S. 433-A
merely because he had the bad luck to be initially acquitted? We think not.
When a person is convicted in appeal, it follows that the appellate court has
exercised its power in the place of the original court and the guilt,
conviction and sentence must be substituted for and shall have retroactive
effect from the date of judgment of the trial court. The appellate conviction
must relate back to the date of the trial court's verdict and substitute it. In
this view, even it' the appellate court reverses an earlier acquittal rendered
before S. 433-A came into force but allows the appeal and convicts the accused,
after S. 433-A came into force, such persons will also be entitled to the
benefit of the remission system prevailing prior to S. 433-A on the basis we
have explained. An appeal is a continuation of an appellate judgment as a
replacement of the original judgment.
We now move on to the second contention which
deals with the power of remission under the Constitution and the fruits of its
exercise vis a vis S. 433-A. Nobody has a case-indeed can be heard to
contend-that Articles 72 and 161 must yield to S. 433-A. Cooley has rightly
indicated that 'where the pardoning power is vested exclusively in the (top
executive) any law which restricts The power is unconstitutional'. Rules to
facilitate the exercise of the power stand 1238 on a different footing. The
Constitution is the supreme lex and any legislation, even by Parliament must bow-before
It is not necessary to delve into the details
of these two Articles; nor even to trace the antiquity of the royal prerogative
which has transmigrated into India through the various Westminster statutes,
eventually to blossom as the power of pardon vested in the President or the
Governor substantially in overlapping measure and concurrently exercisable.
The present provisions (ss. 432 and 433) have
verbal verisimilitude and close kinship with the earlier Code of 1898 (ss. 401
and 402). Likewise, the Constitutional Provisions of today were found even in
the Government of India Act, 1935. Of course, in English constitutional law,
the sovereign, acting through the Home Secretary, exercises the prerogative of
mercy. While the content of the power is the same even under our Constitution,
its source and strength and, therefore, its functional features and
accountability are different. We will examine this aspect a little later.
Suffice it to say that Arts. 72 and 161 are traceable to s. 295 of the Government
of India Act, 1935.
The Central Law Commission has made certain
observations based on Rabha's case to the effect that the effect of granting
pardon is not to interfere with the judicial sentence but to truncate its
execution. There is no dispute regarding this branch of pardon jurisprudence.
What is urged is that by the introduction of s. 433A, s. 432 is granted a
permanent holiday for certain classes of lifers and s.
433(a) suffers eclipse. Since ss. 432 and
433(a) are a statutory expression and modus operandi of the constitutional
power, s. 433A is ineffective because it detracts from the operation of s. 432
and 433(a) which are the legislative surrogates, as it were, of the pardon
power under the Constitution. We are unconvinced be, the submissions of counsel
in this behalf.
It is apparent that superficially viewed, the
two powers, one constitutional] and the other statutory, are co- extensive. But
two things may be similar but not the same.
That is precisely the difference. We cannot
agree that the power which is the creature of the Code can be equated with a
high prerogative vested by the Constitution in the highest functionaries of the
Union and the States. The source is different, the substance is different, the
strength is different although the stream may be flowing along the same bed. We
see the two powers as far from being identical, and, obviously, the
constitutional power is 'untouchable' and 'unapproachable' and cannot suffer
the 1239 vicissitudes of simple legislative processes. Therefore, s.433A cannot
be invalidated as indirectly violative of Arts.
72 and 161. What the Code gives, it can take,
and so, an embargo on ss. 432 and 433(a) is within The legislative power of
Even so, we must remember the constitutional
status of Arts. 72 161 and it is common ground that s. 433A does not and cannot
affect even a wee-bit the pardon power of the Governor or the President. The
necessary sequel to this logic is that notwithstanding s. 433A the President
and the Governor continue to exercise the power of commutation and release
under the aforesaid Articles.
Are we back to Square one ? Has Parliament
indulged in legislative futility with a formal victory but a real defeat? The
answer is 'yes' and 'no' Why 'yes'? because the President is symbolic, the
Central Government is the reality even as the Governor is The formal head and
sole repository of the executive power but is incapable of acting except on,
and according to, the advice of his council of ministers.
The upshot is that the State Government,
whether the Governor likes it or not, can advise and act under Art. 161, the
Governor being bound by that advice. The action of commutation and release can
thus be pursuant to a governmental decision and the order may issue even
without the Governor's approval although, under the Rules of Business and as a
matter of constitutional courtesy, it is obligatory that the signature of the
Governor should authorise the pardon, commutation or release. The position is
substantially the same regarding the President. It is not open either to the
President or the Governor to take independent decision or direct release or
refuse release of any one of their own choice. It is fundamental to the
Westminster system that the Cabinet rules and the Queen reigns. Being too
deeply rooted as foundational to our system no serious encounter was met from
the learned Solicitor General whose sure grasp of fundamentals did not permit
him to controvert the proposition, that the President and the Governor, be they
ever so high in textual terminology, are but functional euphemisms promptly
acting on and only on the advice of the Council of Ministers save in a narrow
area of power. The subject is now beyond controversy, this court having
authoritatively laid down the law in Shamsher Singh's case. So, we agree, even
without reference to Art, 367 and ss. 3(8)(b) and 3(60)(b) of the General
Clauses Act, 1897, that, in the matter of exercise of the powers under Arts. 72
and 161, the two highest dignitaries in our constitutional scheme act and must
act not on their own judgment but in accordance with the aid and advice 1240 of
the ministers. Article 74, after the 42nd Amendment silences speculation and
obligates compliance. The Governor vis a vis his Cabinet is no higher than the
President save in a narrow area which does not include Art. 161. The
Constitutional conclusion is that the Governor is but a shorthand expression
for the State Government and the President is an abbreviation for the Central
An issue of deeper import demands our
consideration at this stage of the discussion. Wide as the power of pardon,
commutation and release (Arts. 72 and 161) is, it cannot run riot; for no legal
power can run unruly like John Gilpin on the horse but must keep sensibly to a
steady course. Here, we come upon the second constitutional fundamental which
underlies the submissions of counsel. It is that all public power, including
constitutional power, shall never be exercisable arbitrarily or mala fide and,
ordinarily, guidelines for fair and equal execution are guarantors of the valid
play of power, We proceed on the basis that these axioms are valid in our
The jurisprudence of constitutionally canalised
power as spelt out in the second proposition also did not meet with serious
resistance from the learned Solicitor General and, if we may say so rightly.
Article 14 is an expression of the egalitarian spirit of the Constitution and
is a clear pointer that arbitrariness is anathema under our system. It
necessarily follows that the power to pardon, grant remission and commutation,
being of the greatest moment for the liberty of the citizen, cannot be a law
unto itself but must be informed by the finer canons of constitutionalism.
In the Inter-national Airport Authority case
this court stated:
"The rule inhibiting arbitrary action by
Government which we have discussed above must apply equally where such
corporation is dealing with the public, whether by way of giving jobs or
entering into contracts or otherwise, and it cannot act arbitrarily and enter
into relationship with any person it likes at its sweet will, but its action
must be in conformity with some principle which meets the test of reason and
This rule also flows directly from the
doctrine of equality embodied in Article 14. It is now well settled as a result
of the decisions of this Court in E. P.Royappa v. State of Tamil Nadu and
Maneka Gandhi v.Union of India that Article 1241 14 strikes at arbitrariness in
State action and ensures fairness, and equality of treatment. It requires that
State action must- not be arbitrary but must be based on some rational and
relevant principle which is non- discriminatory; it must not be guided by any extraneous
or irrelevant considerations, because that would be denial of equality. The
principle of reasonableness and rationality which is legally as well as
philosophically an essential element of equality or non-arbitrariness is
projected by Article 14 and it must characterise every State action, whether it
be under authority of law or in exercise of executive power without making of
law." Mathew, J. In V. Punnan Thomas v. State of Kerala observed:
"The Government, is not and should not
be as free as an individual in selecting the recipients for its largesse.
Whatever its activity the Government is still the Government and will be
subject to restraints, inherent in its position in a democratic society. A
democratic Government cannot lay down arbitrary and capricious standards for
the choice of persons with whom alone it will deal.
If we excerpt again from the Airport
Whatever be the concept of the rule of law,
whether it be the meaning given by Dicey in his "The Law of the
Constitution" or the definition given by Hayek in his "Road to
Serfdom" and "Constitution of Liberty" or the exposition set
forth by Harry Jones in his "The Rule of Law and the Welfare State",
there is as pointed out by Mathew J., in his article on "The Welfare
State, Rule of Law and Natural Justice" in "Democracy, Equality and
Freedom" "Substantial agreement in Juristic thought that the great
purpose of the rule of law notion is the protection of the individual against
arbitrary exercise of power, wherever it is found". It is indeed
unthinkable that in a democracy governed by the rule of Law the executive
Government or any or its officers should possess arbitrary power over the
interests of the individual.
Every action of the Executive Government must
be informed with reason and should be free from ,, arbitrariness. That is the
very essence of the rule of law and its bare minimal requirement. And to the
application of this principle it makes no difference whether the exercise of
the power involves affectation of some right or denial of some privilege.
1242 .... The discretion of the Government
has been held to be not unlimited in that the Government cannot give or
withhold Largesse in its arbitrary discretion or at its sweet will. It is
insisted, as pointed out by Prof. Reich in an specially stimulating ....
article on "The New Property" in 73 Yale Law Journal 733, "that
Government action be based on standards that are not arbitrary or
unauthorised." The Government cannot be permitted, to say that it will give
jobs or enter into contracts or issue quotas or licences only in favour of
those having grey hair or belonging to a particular political party or
professing a particular religious faith. The Government is still the Government
when it acts in , the matter of granting largesse and it cannot act
arbitrarily. It does not stand in the same position as a private individual.
It is the pride of our constitutional order
that all power, whatever its source, must, in its exercise, anathematise
arbitrariness and obey standards and guidelines intelligible and intelligent
and integrated with the manifest purpose of the power. From this angle even the
power to pardon, commute or remit is subject to the wholesome creed that
guidelines should govern the exercise even of presidential power.
Speaking generally, Lord Acton's dictum
deserves attention I cannot accept your canon that we are to judge Pope and .
King unlike other men, with a favourable presumption that they did no wrong. If
there is any presumption it is the other was, against the holders of power,
increasing as the power increases.
Likewise, Edmund Burke, the great British
statesman gave correct counsel when he said:
All persons possessing a portion of power
ought to be strongly and awfully impressed with an idea that they act in trust,
and that they are to account for their conduct in that trust to the one great
Master, Author, and Founder of society.
Pardon, using this expression in the amplest
connotation, ordains fair exercise, as we have indicated above. Political
vendetta or party favouratism cannot but be interlopers in this area. The order
which is the product of extraneous or mala fide factors will vitiate the
While constitutional power is beyond
challenge, its actual exercise may still be vulnerable. Likewise, capricious
criteria will void the exercise. For example, if the Chief Minister of a State
releases every one m the 1243 prisons in his State on his birthday or because a
son has been born to him, it will an outrage on the Constitution to let such
madness survive. We make these observations because it has been brought to our
notice that a certain Home Minister's visit to a Central Jail was considered so
auspicious an omen that all the prisoners in the jail were given substantial
remissions solely for this reason.
Strangely enough, this propitious
circumstance was discovered an year later and remission order was issued long
after the Minister graced the penitentiary. The actual order passed on July 18,
1978 by the Haryana Government reads thus In exercise of the powers conferred
under Article 161 the Constitution of India, the Governor of Haryana grants
special: remissions on the same scale and terms as mentioned in Govt. Of India,
Ministry of Home Affairs letter No. U. 13034/59/77 dated 10th June, 1977 to
Prisoners who happened to be confined in Central Jail, Tihar, New Delhi on 29th
May, 1977, at the time of the visit of Home Minister Govt. Of India, to the
said Jail and who has been convicted by the Civil Courts of Criminal
Jurisdiction in Haryana State.
A. BANERJEE Secretary to Govt. of Haryana
Jails Department Dated: Chandigarh, the 18th July, 1978.
Push this logic a little further and the
absurdity will be obvious. No Constitutional power can be vulgarised by
personal vanity of men in authority. Likewise, if an opposition leader is
sentenced, but the circumstances cry for remission such as that he is suffering
from cancer or that his wife is terminally ill or that he has completely
reformed himself, the power of remission under Arts. 72/161 may ordinarily be exercised
and a refusal may be wrong- headed. If, on the other hand, a brutal murderer,
blood- thirsty in his massacre, has been sentenced by a court with strong
observations about his bestiality, it may be arrogant and irrelevant abuse of
power to remit his entire life sentence the very next day after the conviction
merely because he has joined the party in power or is a close relation of a
political high-up. The court, if it finds frequent misuse of this power may
have to investigate the discrimination. The proper thing to do, if Government
is to Keep faith with the founding fathers, is to make 1244 rules for its own
guidance in the exercise of the pardon power keeping, of course, a large
residuary power to meet special situations or sudden developments. This will
exclude the vice of discrimination such as may arise where two persons have
been convicted and sentenced in the same case for the same degree of guilt but
one is released and the other refused, for such irrelevant reasons as religion,
caste, colour or political loyalty.
Once we accept the basic thesis that the
public power vested on a high pedestal has to be exercised justly The situation
becomes simpler. The principal considerations will turn upon social good by
remission or release. Here, we come back to the purpose of imprisonment and the
point of counter-productivity by further prolongation of incarceration. But
when is this critical point reached? Bitter verse burns better into us this
die-hard error This too I know-and wise it were If each could know the same-
That every prison that men build If built with bricks of shame, And bound with
bars lost Christ should see How men their brothers maim.
President Carter when he was Governor of
Georgia, addressing a Bar Association, said:
In our prisons, which in the past have been a
disgrace to Georgia, we've tried to make substantive changes in the quality of
those who administer them and to put a new realm of understanding and hope and
compassion into the administration of that portion of the system of justice 95
per cent of those who are presently incarcerated in prisons will be returned to
be our neighbors, and now the thrust of the entire program, as initiated under
Ellis MacDougall and now continued under Dr. Ault, is to try to discern in the
Soul of each convicted and sentenced person redeeming features that can be
enhanced. We plan a career for that person to be pursued while he is in prison.
I believe that the early data that we have on recidivism rates indicate the
efficacy of what we've done.
All these go to prove that the length of
imprisonment is not regenerative of the goodness within and may be proof of the
reverse-a 1245 calamity which may be averted by exercise of power under Art.
161, especially when the circumstances show good behaviour, industrious
conduct, social responsibility and humane responses which are usually reflected
in the marks accumulated in the shape of remission. In short, the rules of
remission may be effective guidelines of a recommendatory nature, helpful to
Government to release the prisoner by remitting the remaining term.
The failure of imprisonment as a crime
control tool and the search for non-institutional alternatives in a free
milieu, gain poignant pertinence while considering the mechanical exclusion of
individualised punishment by s.433A, conjuring up the cruel magic of 14 years
behind bar- where 'each day is like a year, a year whose days are long- as a
solvent of the psychic crisis which is crimeogenic factor, blinking at the
blunt fact that at least after a spell the penitentiary remedy aggravates the
recidivist's malady. In the "Failure of Imprisonment" (a 1979
publication) the authors start off with the statement "The failure of
imprisonment has been one of the most noticeable features of the current crisis
in criminal justice system in advanced industrial or post- industrial societies
such as Australia, Britain, Canada and the United States. One justification
after another advanced in favour of the use of imprisonment has been shown to
be misconceived. At best, prisons are able to provide a form of crude
retribution to those unfortunate to be apprehended. At worst, prisons are
brutalising, cannot be shown to rehabiliate or deter offenders and are
detrimental to the re-entry of offenders into society. Furthermore, the heavy
reliance upon prisons, particularly maximum security institutions with their
emphasis upon costly security procedures, has led to an inordinate drain upon
the overall resources devoted to the criminal justice area." Likewise, in
many current research publications the thesis is the same. Unless a tidal wave
of transformation takes place George Ellis will be proved right:
There are many questions regarding our prison
systems and their rehabilitative quality. Observers from inside the walls find
prisons to be a melting pot of tension and anxiety. Tension and 1246 anxiety
are the result of a variety of abnormal conditions. Prisons, including the
so-called model prisons, rob a man of his individual identity and dignity.
Contrary to popular opinion, all convicts are
not rock-hard individuals lacking sufficient emotional balance. They are
people. with fears and aspirations like everyone else. Generally, they don't
want to fight with or kill their neighbor any more than the man on the street.
They want to live in peace and return to it their loved ones as soon as
possible. They are not a different breed of human being or a distinct type of
mentality. They are persons who have made mistakes.
This point is made not to solicit pity but to
bring attention to the fact that any individual could be caught in a similar
web and find himself inside a pit such as Folsom Prison.
The rule of law, under our constitutional
order, transforms alt public power into responsible, responsive, regulated
exercise informed by high purposes and geared to people's welfare. But the
wisdom and experience of the past have found expression in remission rules and
short- sentencing laws. No new discovery by Parliament in 1978 about the
futility or folly of these special and local experiences, spread ever several
decades, is discernible. No High-power committee report, no expert body's
recommendations, no escalation in recidivism attributable to remissions and
releases, have been brought to our notice.
Impressionistic reaction to some cases of
premature release of murderers, without even a follow up study of the later
life of these quondam convicts, has been made. We find the rise of
enlightenment in penological alternatives to closed prisons as the current
trend and failure of imprisonment as the universal lament. We, heart-warmingly,
observe experiments in open jails, filled by lifers, liberal parolee and
probations, generosity of juvenile justice and licensed release or freedom
under leash-a la The Uttar Pradesh Prisoners' Release on Probation Act, 1978.
We cannot view without gloom the reversion to the sadistic superstition that
the longer a life convict is kept in a cage the surer will be his redemption.
It is our considered view. that, beyond an optimum point of, say, eight years-
we mean no fixed formula-prison detention benumbs and makes nervous wreck or
unmitigated brute of a prisoner. If animal farms - are not reformatories, the
Remission Rules and short- sentencing schemes are humanising wheel of
compassion and reduction of psychic tension. We have no hesitation to reject
the notion that 1247 Arts. 72/161 should remain uncanalised. We have to direct
the provisional acceptance of the remission and short- sentencing schemes as
good guidelines for exercise of pardon power-a jurisdiction meant to be used as
often and as systematically as possible and not to be abused, much as the
temptation so to do may press upon the pen of power.
The learned Solicitor General is right that
these rules are plainly made under the Prisons Act and not under the
constitutional power. The former fails under the pressure of s. 433A. But that,
by no means. precludes the States adopting as working rules the same remission
schemes which seem to us to be fairly reasonable. After all, the Government
cannot meticulously study each prisoner and the present praxis of marks, until
a more advanced and expertly advised scheme is evolved, may work. Section 433A
cannot forbid this method because it is immunised by Art. 161. We strongly
suggest that, without break, the same rules and schemes of remission be
continued as a transmigration of soul into Art. 161, as it were, and benefits
extended to all who fall within their benign orbit-save, of course, in special
cases which may require other relevant considerations. The wide power of
executive clemency cannot be bound down even by self-created rules.
One point remains to be clarified. The U.P.
Prisoners' Release on Probation Act. 1938, a welcome measure, what with
population pressure on prisons and burden on the public exchequer, will survive
s. 433A for two reasons. Firstly, Government may resort to the statutory
scheme, not qua law but as guideline. Secondly, and more importantly, the
expression 'prison' and 'imprisonment' must receive a wider connotation and
include any place notified as such for detention purposes. 'Stone walls and
iron bars do not a prison make'; nor are 'stone walls and iron bars' a sine qua
non to make a jail. Open jails are capital instances. Any life under the
control of the State, whether within the high-walled world or not, may be a
prison if the law regards it as such. House detentions, for example. Palaces,
where Gandhiji was detained, were prisons. Restraint on freedom under the prison
law is the lest. Licensed releases where instant re-capture is sanctioned by
the law, and, likewise, parole, where the parole is no free agent, and other
categories under the invisible fetters of the prison law may legitimately be
regarded as imprisonment. This point is necessary to be cleared even for
computation of 14 years under s. 433A. Sections 432, 433 and 433A read
Iead to the inference we have drawn and
liberal though guarded, use of this Act may do good. Prison reform, much
bruised about though, is more the skin than in the soul and needs a deeper
stirring of 1248 consciousness than tantrums, threats and legalised third
degree, if the authentic voice of the Father of the Nation be our guide. To
chain the man is not to change him; the error is obvious-a human is more than
simian. Our reasoning upholds s. 433A of the Procedure Code but upbraids the
abandonment of the healing hope of remissions and release betimes. To legislate
belongs to another branch but where justice is the subject the court must
speak. There was some argument that s. 433A is understood to be a ban on
Very wrong. The Section does not obligate
continuous fourteen years in jail and so parole is permissible. We go further
to say that our Prison Administration should liberalise parole to prevent
pent-up tension and sex perversion which are popular currency in many a
penitentiary (see Sethna, "Society and the Criminal" Tripati
publications, 4th Edn. p. 296).
We conclude by formulating our findings.
1. We repulse all the thrusts on the vires of
Maybe, penologically the prolonged terms
prescribed by the Section is supererogative. If we had our druthers we would
have negatived the need for a fourteen-year gestation for reformation. But ours
is to construe not construct, to decode, not to make a code.
2. We affirm the current supremacy of s. 433A
over the Remission Rules and short-sentencing statutes made by the various
3. We uphold all remissions and
short-sentencing passed under Articles 72 and 161 of the Constitution but
release will follow, in life sentence cases, only on Government making an order
en masse or individually, in that behalf.
4. We hold that s. 432 and s. 433 are not a
manifestation of Articles 72 and 161 of the Constitution but a separate, though
similar, power, and s. 433A, by nullifying wholly or partially these prior
provisions does not violate or detract from the full operation of the
constitutional power to pardon, commute and the like.
5. We negate the plea that s. 433A
contravenes Article 20(1) of the Constitution.
6. We follow Godse's case (supra) to hold
that imprisonment for life lasts until the last breath, and whatever the length
of remissions earned, the prisoner can claim release only if the remaining
sentence is remitted by Government.
7. We declare that s. 433A, in both its limbs
(i.e.'both types of life imprisonment specified in it), is prospective in
effect. To put the position beyond doubt, we direct that the mandatory minimum
of 14 years' actual imprisonment will not operate against those whose 1249
cases were decided by the trial court before the 18th December, 1978 (directly
or retroactively, as explained in the judgment) when s. 433A came into force.
All 'lifers' whose conviction by the court of first instance was entered prior
to that date are entitled to consideration by Government for release on the
strength of earned remissions although a release can take place only if
Government makes an order to that effect. To this extent the battle of the
tenses is won by the prisoners. It follows, by the same logic, that
short-sentencing legislations, if any, will entitle a prisoner to claim release
thereunder if his conviction by the court of first instance was before s. 433A
was brought into effect.
8. The power under Articles 72 and 161 of the
Constitution can be exercised by the Central and State Governments, not by the
President or Governor on their own.
The advice of the appropriate Government
binds the Head of the State. No separate order for each individual case is
necessary but any general order made must be clear enough to identify the group
of cases and indicate the application of mind to. the whole group.
9. Considerations for exercise of power under
Articles 72/161 may be myriad and their occasions protean, and are left to the
appropriate Government, but no consideration nor occasion can be wholly
irrelevant, irrational, discriminatory or mala fide.. Only in these rare cases
will the court examine the exercise.
10. Although the remission rules or
short-sentencing provisions proprio vigore may not apply as against s. 433A,
they will override s. 433A if the Government, Central or State, guides itself
by the selfsame rules or schemes in the exercise of its constitutional power.
We regard it as fair that until fresh rules are made in keeping with experience
gathered, current social conditions and accepted penological thinking- a
desirable step, in our view-the present remission and release schemes may
usefully be taken as guidelines under Articles 72/161 and orders for release passed.
We cannot fault the Government, if in some intractably savage delinquents, s.
433A is itself treated as a guideline for exercise of Articles 72/161. These
observations of ours are recommendatory to avoid a hiatus, but it is for
Government, Central or State, to decide whether and why the current Remission
Rules, should not survive until replaced by a more wholesome scheme.
11. The U. P. Prisoners' Release on Probation
Act, 1938, enabling limited enlargement under licence will be effective as
legislatively sanctioned imprisonment of a loose and liberal type and such
licensed enlargement will be reckoned for the purpose of the 14-year duration.
Similar other statutes and rules will enjoy similar efficacy.
12. In our view, penal humanitarianism and rehabilitative
desideratum warrant liberal paroles, subject to security safeguards, and other
humanizing strategies for inmates so that the dignity and worth of the human
person are not desecrated by making mass jails anthropoid zoos.
Human rights awareness must infuse
institutional reform and search for alternatives.
13. We have declared the law all right, but
law-in- action fulfils itself not by declaration alone and needs the wings of
communication to the target community. So, the further direction goes from this
court that the last decretal part is translated and kept prominently in each
ward and the whole judgment, in the language of the State, made available to
the inmates in the jail library.
14. Section 433A does not forbid parole or
other release within the 14-year span. So to interpret the Section as to
intensify inner tension and taboo intermissions of freedom is to do violence to
language and liberty.
11 The length of this judgment (like the
length of s.433A Cr. P. C.) could have been obviated but the principles and
pragmatics enmeshed in the mass of cases which are but masks for human trials
warrant fuller examination even of peripherals. Moreover, Chief Justice Earl
Warren's admonition makes us scrutinise the basics, undeterred by length:
Our judges are not monks or scientists, but
participants in the living stream of our national life, steering the law
between the dangers of rigidity on the one hand and of formlessness on the
other. Our system faces no theoretical dilemma but a single continuous problem:
how to apply to ever-changing conditions the never-changing principles of
(Fortune, November, 1955) A Final Thought
Fidelity to the debate at the bar persuades us to remove a misapprehension.
Some argument was made that a minimum sentence of 14 years' imprisonment was
merited because the victim of the murder must be remembered and all soft
justice scuttled to such heinous offenders. We are afraid there is a confusion
about fundamentals mixing up victimology with penology to warrant retributive
severity by the backdoor. If crime claims a victim criminology must include
victimology as a major component of its concerns.
Indeed, when a murder or other grievous
offence is committed the dependants or other aggrieved persons must receive
reparation and the social 1251 responsibility of the criminal to restore the
loss or heal the injury is part of the punitive exercise. But the length of the
prison term is no reparation to the crippled or bereaved and is futility
compounded with cruelty. 'Can storied urn or animated bust call to its mansion
the fleeting breath ?' Equally, emphatically, given perspicacity and freedom
from sadism, can flogging the killer or burning his limbs or torturing his
psychic being bring balm to the soul of the dead by any process of thanatology
or make good The terrible loss caused by the homicide ? Victimology, a
burgeoning branch of humane criminal justice, must find fulfillment, not
through barbarity but by compulsory recoupment by the wrong-doer of the damage
inflicted, not by giving more pain to the offender but by lessening the loss of
the forlorn. The State itself may have its strategy of alleviating hardships of
victims as part of Article 41. So we do not think that the mandatory minimum in
s. 433A can be linked up with the distress of the dependants.
We dismiss the Writ Petition vis a vis the
challenge to s. 433A but allow them to the extent above indicated. The war is
not lost even if a battle be lost. Justice must win.
The authorities concerned will carefully
implement The directives given in this judgment. Since personal liberty is at
stake urgent action is the desideratum.
FAZAL ALI, J.-While I concur with the
judgment proposed by Brother Krishna Iyer, J., I would like to express my own
views on certain important features of the case and on the nature and character
of the reformative aspect of penology as adumbrated by Brother Krishna Iyer, J.
The dominant purpose and the avowed object of
the legislature in introducing s. 433A in the Code of Criminal Procedure
unmistakably seems to be to secure a deterrent punishment for heinous offences
committed in a dastardly, brutal or cruel fashion or offences committed against
the defence or security of the country. It is true that there appears to be a
modern trend of giving punishment a colour of reformation so that stress may be
laid on the reformation of the criminal rather than his confinement in jail
which is an ideal objective. At the same time, it cannot be gainsaid that such
an objective cannot be achieved without mustering the necessary facilities, the
requisite education and the appropriate climate which must be created to foster
a sense of repentance and penitence in a criminal so that he may undergo such a
mental or psychological revolution that he realises the consequences of playing
with human lives. In the world of today and particularly in our country, this
ideal is yet to be achieved and, in fact, with all our efforts it will take us
a long time to reach this sacred goal.
1252 The process of reasoning that even in spite
of death sentence murders have not stopped is devoid of force because, in the
first place, we cannot gauge, measure or collect figures or statistics as to
what would have happened if capital punishment was abolished or sentence of
long imprisonment was reduced. Secondly, various criminals react to various
circumstances in different ways and it is difficult to foresee the impact of a
particular circumstance on their criminal behaviour.. The process of
reformation of criminals with an unascertained record would entail a great risk
as a sizable number of criminals instead of being reformed may be encouraged to
commit offences after offences and become a serious and horrendous hazard to
The question, therefore, is-should the
country take the risk of innocent lives being lost at the hands of criminals
committing heinous crimes in the holy hope or wishful thinking that one day or
the other, a criminal, however dangerous or callous he may be, will reform
Valmikis are not born every day and to expect
that our present generation, with the prevailing social and economic
environment, would produce Valmikis day after day is to hope for the
Section 433A has advisedly been enacted to
apply to a very small sphere and includes within its ambit only offences under
sections 121, 132, 302, 303, 396, etc., of the Indian Penal Code, that is to
say, only those offences where death or life imprisonment are the penalties but
instead of death life imprisonment is given or where a sentence of death is
commuted to that of life imprisonment.
The problem of penology is not one which
admits of an easy solution. The argument as to what benefit can be achieved by
detaining a prisoner for fourteen years is really begging the question because
a detention for such a long term in confinement however comfortable it is, is
by itself sufficient to deter every criminal or offender from committing
offences so as to incur the punishment of confinement for a good part of his
life. The effect of such a punishment is to be judged not from a purely ethical
point of view but from an angle of vision which is practical and pragmatic.
Crime has rightly been described as an act of
warfare against the community touching new depths of lawlessness.
The object of imposing deterrent sentences is
threefold:- (1) to protect the community against callous criminals for a long
time, 1253 (2) to administer as clearly as possible to others tempted to follow
them into lawlessness on a war scale if they are brought to and convicted,
deterrent punishment will follow and (3) to deter criminals who are forced to
undergo long- term imprisonment from repeating their criminal acts in future.
Even from the point of view of reformative form of punishment "prolonged
and indefinite detention is justified not only in the name of prevention but
cure. The offender has been regarded in one sense as a patient to be discharged
only when he responds to the treatment and can be regarded as safe''(1) for the
Explaining the material and practical advantages
of long-term imprisonment Sir Leon Radzinowicz in his book 'The Growth of
Crime' aptly observes as follows:
"Long imprisonment could be regarded as
the neat response to all three requirements: it would put the miscreants behind
bars for a long time; it would demonstrate that the game was not wirth the
candle for others." (p. 195) the author gives examples in support of his
"Two English police officers were
sentenced to seven years imprisonment for accepting bribes and conspiring to
pervert the courts of justice, two others for hounding a vagrant. In Turkey a
similar sentence was passed upon a writer for translating and publishing the
works of Marx and Engels. In Russia the manager of a mechanical repair shop was
sentenced to death for theft of state property. In the Philippines a Chinese
businessman was condemned to public execution by firing squad for trafficking
in drugs. In Nigeria something like eighty people suffered the same fate within
a year or two for armed robbery. All these sentences had, of course, their
elements of deterrence and retribution.
But they have in common another element, what
has been called denunciation, a powerful reassertion or assertion of the values
attacked." (p. 197) But, at the same time, it cannot be gainsaid that a
sentence out of proportion of the crime is extremely repugnant to the social
sentiments of a civilized society.
This aspect of the matter is fully taken care
of by section 433A when it confines its application only to those categories of
offences which are heinous and amount to a 1254 callous outrage on humanity.
Sir Leon Radzinowicz referring to this aspect of the matter observes thus:
"Maximum penalties, upper limits to the
punishment a judge may impose for various kinds of crime, are essential to any
system which upholds the rule of law.
Objections arise only when these penalties
are illogical, inconsistent, at odds with people's sense of justice .. Thus the
problem with maximum penalties is not whether they should be laid down but
whether they can be made reasonably proportionate to people's assessment of the
comparative gravity of crimes, and a consistent guide to sentences rather than
an additional factor in discrepancies." (p. 216) Similarly, the same
author in Vol. II of his book 'Crime and Justice' observes as follows:-
"the solution to which most recent efforts have come is that the
legislative function is best discharged by the creation of a small number of
distinct sentencing categories .. And it can also serve to emphasize the futility
of close line-drawing in an area where precision-to the extent that it can be
achieved at all must come from the efforts of those in a position to know and
to judge the particular offender." (p. 332) The existence of a distinct
number of sentencing categories and a list of the offences within each should
be of great aid in other words, in assuring consistency of treatment for
present offences and in determining the appropriate sentence levels for NEW
offences." (p. 340) This is exactly what s. 433A of the Code of Criminal
Procedure seeks to achieve by carving out a small and special field within
which alone the statutory provisions operate.
While I agree that the deterrent form of
punishment may not be a most suitable or ideal form of punishment yet the fact
remains that the deterrent punishment prevents occurrence of offences by- (i)
making it impossible or difficult for an offender to break the law again, (ii)
by deterring not only the offenders but also others from committing offences,
and (iii) punishment or for that matter a punishment in the form of a long-term
imprisonment may be a means to changing a 1255 person's character or
personality so that out of some motivation or reasons of a personal or general
nature, the offender might obey the law.
Ted Honderich in his book 'punishment' while
dealing with the deterrent form of punishment observes as follows:
"It is also to be noticed that the
conditions have other consequences as well. Penalties must be sufficiently
severe to deter effectively." Bentham has also pointed out that a penalty
may be justified when the distress it causes to the offenders and others is not
greater than the distress that will result if he and others undeterred,
offended in the future.
Ted Honderich after highlighting various
aspects of the deterrent form of punishment concludes as follows:- "There
are classes of offenders who are not deterred by the prospect of punishment, it
cannot be acceptable that a society should attempt to prevent all offences by
punishment alone .......... In anticipation of the discussion to come of com
promise theories of punishment, we can say that punishment may be justified by
being both economically deterrent and also deserved." I am not at all
against the reformative form of punishment on principle, which in fact is the
prime need of the hour, but this matter has been thoroughly considered by
Graeme Newman in his book 'The Punishment Response' and where he has rightly
pointed out that before the reformative form of punishment can succeed people
must be properly educated and realise the futility of committing crimes. The
author observes as below:- "In sum, I have suggested that order was
created by a criminal act, that order cannot exist without a structured
inequality. order and authority must be maintained by punishment, otherwise
there would be even more revolutions and wars than we have had throughout
. .. .. .. .. .... .. .. .. .. .. .. ..
People in criminal justice know only too well
that the best intentioned reforms often turn out to have unfortunate results.
Thus, for example, in the area of criminal
sentencing, a popular area at present, practical moves to reform should be
based soundly on the historical precedents of criminal law and not on 1256
grand schemes that will sweep all of what we have out the door. There have been
many examples of grand schemes that looked great on paper, but by the time they
had been trans formed into legislation were utterly unrecognizable. It seems to
follow from this that sentencing reform should not be achieved by new
legislation, but by a close analysis and extrapolation from the already
existing practice and theory of criminal law:" Having regard to these
circumstances I am clearly of the opinion that s. 433A is actually a social
piece of legislation which by one stroke seeks to prevent dangerous criminals
from repeating offences and on the other protects the society from harm and
distress caused to innocent persons.
Taking into account the modern trends in
penology there are very rare cases where the courts impose a sentence of death
and even if in some cases where such sentences are given, by the time the case
reaches this Court, a bare minimum of the cases are left where death sentences
are upheld. Such cases are only those in which imposition of a death sentence
becomes an imperative necessity having regard to the nature and character of
the offences, the antecedents of the offender and other factors referred to in
the Constitution Bench judgment of this Court in Bachan Singh v.
State of Punjab. In these circumstances, I am
of the opinion that the Parliament in its wisdom chose to act in order to
prevent criminals committing heinous crimes from being released through easy
remissions or substituted form of punishments without undergoing atleast a minimum
period of imprisonment of fourteen years which may in fact act as a sufficient
deterrent which may prevent criminals from committing offences. In most parts
of our country, particularly in the north, cases are not uncommon where even a
person sentenced to imprisonment for life and having come back after earning a
number of remissions has committed repeated offences. The mere fact that a long
term sentence or for that matter a sentence of death has not produced useful
results cannot support the argument either for abolition of death sentence or
for reducing the sentence of life imprisonment from 14 years to something less.
The question is not what has happened because of the provisions of the penal
Code but what would have happened if deterrent punishments were not given. In
the present distressed and disturbed atmosphere we feel that if deterrent
punishment is not resorted to, there will be complete chaos in the entire
country and criminals be let loose endangering 1257 the lives of thousands of
innocent people of our country. In spite of all the resources at its hands, it
will be difficult for the State to protect or guarantee the life and liberty of
all the citizens, if criminals are let loose and deterrent punishment is either
abolished or mitigated.
Secondly, while reformation of the criminal
is only one side of the picture, rehabilitation of the victims and granting
relief from the tortures and sufferings which are caused to them as a result of
the offences committed by the criminals is a factor which seems to have been
completely overlooked while defending the cause of the criminals for abolishing
deterrent sentences. Where one person commits three murders it is illogical to
plead for the criminal and to argue that his life should be spared, without at
all considering what has happened to the victims and their family. A person who
has deprived another person completely of his liberty for ever and has
endangered the liberty of his family has no right to ask the court to uphold
his liberty. Liberty is not a one-sided concept, nor does Art. 21 of the
Constitution contemplate such a concept. If a person commits a criminal offence
and punishment has been given to him by a procedure established by law which is
free and fair and where the accused has been fully heard, no question of
violation of Art. 21 arises when the question of punishment is being
considered. Even so, the provisions of the Code of Criminal Procedure of 1973
do provide an opportunity to the offender, after his guilt is proved, to show
circumstances under which an appropriate sentence could be imposed on him.
These guarantees sufficiently comply with the provisions of Art.
21. Thus, it seems to me that while
considering the problem of penology we should not overlook the plight of
victimology And the sufferings of the people who die, suffer or are maimed at
the hands of criminals.
For these reasons, I am clearly of the
opinion that in cases where s. 433A applies, no question of reduction of
sentence arises at all unless the President of India or the Governor choose to
exercise their wide powers under Art. 72 or Art. 161 of the Constitution which
also have to be exercised according to sound legal principles as adumbrated by
Brother Krishna Iyer, J. I, therefore, think that any reduction or modification
in the deterrent punishment would r far from reforming the criminal be
Thus, on a consideration of the
circumstances, mentioned above, the conclusion is inescapable that parliament
by enacting s. 433A has rejected the reformative character of punishment, in
respect of offences contemplated by it, for the time being in view of the
prevailing conditions in our country. It is well settled that the legislature
understands the needs and requirements of its people 1258 much better than the
courts because the Parliament consists of the elected representatives of the
people and if the Parliament decides to enact a legislation for the benefit of
the people, such a legislation must be meaningfully construed and given effect
to so as to subserve the purpose for which it is meant.
Doubtless, the President of India under Art.
72 and the State Government under Art. 161 have absolute and unfettered powers
to grant pardon, reprieves, remissions, etc. This power can neither be altered,
modified or interfered with by any statutory provision. But, the fact remains
that higher the power, the more cautious would be its exercise. This is
particularly so because the present enactment has been passed by the Parliament
on being sponsored by the Central Government itself. It is, therefore, manifest
that while exercising the powers under the aforesaid Articles of the
Constitution neither the President, who acts on the advice of the Council of
Ministers, nor the State Government is likely to overlook the object, spirit
and philosophy of s.
433A so as to create a conflict between the
legislative intent and the executive power. It cannot be doubted as a
proposition of law that where a power is vested in a very high authority, it
must be presumed that the said authority would act properly and carefully after
an objective consideration of all the aspects of the matter.
So viewed, I am unable to find any real
inconsistency between s. 433A and Articles 72 and 161 of the Constitution of
India as contended by the petitioners. I also hold that all the grounds on
which the constitutional validity of s.
433A has been challenged must fail. I dismiss
the petitions with the modification that s. 433A would apply only prospectively
as pointed out by Brother Krishna Iyer, J.KOSHAL, J.-On a perusal of the
judgment prepared by my learned brother, Krishna Iyer, J., I agree respectfully
with findings (2) to (11), (13) and (14) enumerated by him in is concluding
part as, also with the first sentence occurring in finding (1), but regret that
I am unable to endorse all the views expressed by him on the reformative aspect
of penology, especially those forming the basis of finding (1) minus the first
sentence and of finding (12). In relation to those views, while concurring
generally with the note prepared by my learned brother, Fazal Ali, J., I am
appending a very short note of my own.
2. That the four main objects which
punishment of an offender by the State is intended to achieve are deterrence,
prevention, retribution and reformation is well recognised and does not appear
to be 1259 open to dissent. In its deterrent phase, punishment is calculated to
act as a warning to others against indulgence in the anti-social act for which
it is visited. It acts as a preventive because the incarceration of the
offender, while it lasts, makes it impossible for him to repeat the offending
act. His transformation into a law-abiding citizen is of course another object
of penal legislation but so is retribution which is also described as a symbol
of social condemnation and a vindication of the law. The question on which a
divergence of opinion has been expressed at the bar is the emphasis which the
legislature is expected to place on each of the said four objects. It has been
contended on behalf of the petitioners that the main object of every punishment
must be reformation of the offender and that the other objects above mentioned
must be relegated to the background and be brought into play only incidentally,
if at all. I have serious disagreement with this proposition and that for three
3. In the first place, there is no evidence
that all or most of the criminals who are punished are amenable to reformation.
It is true that in recent years an opinion has been strongly expressed in
favour of reformation being the dominant object of punishment but then an
opposite opinion has not been lacking in expression. Champions of the former
view cry from housetops that punishment must have as its target the crime and
not the criminal. Others, however, have been equally vocal in bringing into
focus the mischief flowing from what the criminal has done to his victim and
those near and dear to him and have insisted on greater attention being paid to
victimology and therefore to the retributive aspect of punishment. They assert:
"Neither reformers nor psychologists
have, by and large, succeeded in reducing recidivism by the convicted
criminals. Neither harshness nor laxity has succeeded in discouraging repeaters
.... Criminality is not a disease admitting of cure through quick social
therapy .. " The matter has been the subject of social debate and, so far
as one can judge, will continue to remain at that level in the foreseeable
4. Secondly, the question as to which of the
various objects of punishment should be the basis of a penal provision has, in
the very nature of things, to be left to the legislature and it is not for the
courts to say which of them shall be given priority, preponderance 1260 or
predominance. It may well in fact be that a punitive law may be intended to
achieve only one of the four objects but that is something which must be
decided by the legislature in its own wisdom. An offence calculated to thwart
the security of the State may be considered so serious as to demand the death
penalty and nothing else, both as a preventive and a deterrent, and without
regard to retribution and reformation. On the other hand, offences involving
moral turpitude may call for reformation as the chief objective to be achieved
by the legislature. In a third case all the four objects may have to be borne
in mind in choosing the punishment. As it is, the choice must be that of the
legislature and not that of the courts and it is not for the latter to advise
the legislature which particular object shall be kept in focus in a particular
situation. Nor is it open to the courts to be persuaded by their own ideas
about the propriety of a particular purpose being achieved by a piece of penal
legislation, while judging its constitutionality. A contrary proposition would
mean the stepping of the judiciary into the field of the legislature which, I
need hardly say, is not permissible. It is thus outside the scope of the
inquiry undertaken by this Court into the vires of the provisions contained in
section 433A to find out the extent to which the object of reformation is
sought to be achieved thereby, the opinions of great thinkers, jurists,
politicians and saints (as to what the basis of a penal provision should be)
5. The third reason flows from a careful
study of the penal law prevalent in the country, especially that contained in
the Indian Penal Code which brings out clearly that the severity of each
punishment sanctioned by the law is directly proportional to the seriousness of
the offence for which it is awarded. This, to my mind, is strongly indicative
of reformation not being the foremost object sought to be achieved by the penal
provisions adopted by the legislature. A person who has committed murder in the
heat of passion may not repeat his act at all later in life and the reformation
process in his case need not be time- consuming. On the other hand, a thief may
take long to shed the propensity to deprive others of their good money. If the
reformative aspect of punishment were to be given priority and predominance in
every case the murderer may deserve, in a given set of circumstances, no more
than a six months' period of incarceration while a thief may have to be trained
into better ways of life from the social point of view over a long period, and
the death penalty, the vires of which has been recently upheld by a majority of
four in a five Judge Bench of this Court in Bachan Singh and others v. State of
Punjab and others would have to be 1261 exterminated from Indian criminal law.
The argument based on the object of reformation having to be in the forefront
of the legislative purposes behind punishment must, therefore, hold to be
6. I conclude that the contents of section
433A of the Code of Criminal Procedure (or, for that matter any other penal
provision) cannot be attacked on the ground that they are hit by article 14 of
the Constitution inasmuch as they are arbitrary or irrational because they
ignore the reformative aspect of punishment.
S.R. Petitions dismissed.