rl Petition No 96 of 1989
Under Article 32 of the Constitution of India
Nand Lal SK Bagga and Mrs SK Bagga for the Petitioner
VC Mahajan Mrs Indra Sawhney Ms A Subhashini Aruneshwar Gupta Surya Kant and I Makwana for the Respondents
The Judgment of the Court was delivered by AHMADI J
Liberty is the life line of every human being
Life without liberty is lasting  but not living 
Liberty is therefore considered one of the most precious and cherished possessions of a human being
Any attempt to take liberties with the liberty of a human being is visited with resistance
Since no human being can tolerate fetters on his personal liberty it is not surprising that the petitioner Ashok Kumar alias Golu continues to struggle for his liberty premature release not fully content with the enunciation of the law in this behalf 864 by this Court in Maru Ram vs Union of India 1981 1 SCR 1196
The questions of law which are raised in this petition brought under Article 32 of the Constitution arise upon facts of which we give an abridged statement
On the basis of a FIR lodged on October 21 1977 the petitioner was arrested on the next day and he along with others was chargesheeted for the murder of one Prem Nagpal
The petitioner was tried and convicted for murder on December 20 1978 in Sessions Case No 32 of 1978 by the learned Sessions Judge Ganganagar and was ordered to suffer imprisonment for life
His appeal Criminal Appeal No 40 of 1979 was dismissed by the High Court of Rajasthan
Since then he is serving time
It appears that he filed a Habeas Corpus Writ Petition No 2963 of 1987 in the High Court of Rajasthan at Jodhpur for premature release on the plea that he was entitled to be considered for such release under the relevant rules of Rajasthan Prisons Shortening of Sentences Rules 1958 hereinafter alluded to as the 1958 Rules  notwithstanding the insertion of Section 433A in the Code of Criminal Procedure 1973 hereinafter called the Code  with effect from December 18 1978 just two days before his conviction
His grievance was that he was being denied the benefit of early release under the 1958 Rules under the garb of the newly added Section 433A on the ground that it places a statutory embargo against the release of such a convict unless he has served atleast 14 years of imprisonment 
He contended that the said provision could not curtail the constitutional power vested in the Governor by virtue of Article 161 of the Constitution which had to be exercised on the advice of the Council of Ministers which advice could be based on a variety of considerations including the provisions of the 1958 Rules
The writ petition was however dismissed by the High Court on October 31 1988 on the ground that it was premature inasmuch as the petitioner s two representations one to the Governor and another to the State Home Minister were pending consideration
The High Court directed that they should be disposed of within one month
In this view of the matter the High Court did not deem it necessary to consider the various questions of law raised in the petition on merits
After the rejection of his writ petition by the High Court the petitioner through his counsel addressed a letter dated November 28 1988 to the Governor inviting his attention to the earlier representation dated August 29 1988 and requesting him to take a decision thereon within a month as observed by the High Court
Failing to secure his early release notwithstanding the above efforts the petitioner has invoked the extraordinary jurisdiction of this Court under Article 32 of the Constitution 865 The petitioner s case in a nutshell is that under the provisions of the 1958 Rules a lifer  who has served an actual sentence of about 9 years and 3 months is entitled to be considered for premature release if the total sentence including remissions works out to 14 years and he is reported to be of good behaviour
However the petitioner contends his case for premature release is not considered by the concerned authorities in view of the newly added section 433A of the Code on the interpretation that by virtue of the said provision the case of a lifer  cannot be considered for early release unless he has completed 14 years of actual incarceration the provisions of sections 432 and 433 of the Code as well as the 1958 Rules notwithstanding
According to him even if the provisions of sections 432 and 433 of the Code do not come into play unless a convict sentenced to life imprisonment has completed actual incarceration for 14 years as required by section 433A the authorities have failed to realise that section 433A cannot override the constitutional power conferred by Articles 72 and 161 of the Constitutional on the President and the Governor respectively and the State Government ie the Council of Ministers could advise the Governor to exercise power under Article 161 treating the 1958 Rules as guidelines
Since the petitioner had already moved the Governor under Article 161 of the Constitution it was incumbent on the State Government to consider his request for early release notwithstanding section 433A and failure to do so entitled the petitioner to immediate release as his continued detention was wholly illegal and invalid
In support of this contention the petitioner has placed reliance on the ratio of Maru Ram s decision
The petitioner brands section 433A of the Code to be a legislative fraud  inasmuch as the said provision was got approved by the Parliament on the assurance that the said provision is complementary to the various amendments proposed in the Indian Penal Code
In the alternative it is contended that in any case this Court should by a process of interpretation limit the scope of section 433A of the Code to those cases only to which it would have been limited had the legislation proposing amendments in the Indian Penal Code gone through
In any case after the decision of this Court in Maru Ram s case the efficacy of section 433A is considerably reduced and the petitioner is entitled to early release by virtue of the power contained in ARticle 161 read with the 1958 Rules even if guidelines are not formulated notwithstanding the subsequent decision of this Court in Kehar Singh vs Union of India  Counsel submitted that after the decision of this Court in Bhagirath vs Delhi Administration  whereunder this Court extended the benefit of section 428 of the Code even 866 to life convicts the ratio in Gopal Godse vs State of Maharashtra  had undergone a change
On this broad approach counsel for the petitioner formulated questions of law which may be stated as under 1
Whether the insertion of section 433A in the Code was a legislative fraud inasmuch as the connected legislation namely the Indian Penal Code Amendment Bill XLII of 1972 did not become law although passed by the Rajya Sabha as the IPC Amendment Act 1978 on November 23 1978 2
Whether on the ration of Maru Ram s decision in the absence of any guidelines formulated by the State under Article 72 of 161 of the Constitution section 433A of the Code would not apply to life convicts and the 1958 Rules will prevail for the purpose of exercise of power under Article 72 of 161 of the Constitution Inter connected with this question the following l questions were raised a Whether Maru Ram s decision is in conflict with Kehar Singh s Judgment on the question of necessity or otherwise of guidelines for the exercise of power under Article 7 and 161 of the constitution b Whether the use of two expressions remission and remit in Articles 72 and 161 convey two different meanings and if yes whether the content f power in the two expressions is different c Whether the persons sentenced to death by Court whose death sentence has been commuted to life imprisonment by executive clemency form a distinct and separate class for the purpose of application of section 433A of the Code as well as for the purpose of necessity or not of guidelines for premature release in exercise of power under Articles 72 and 161 from the persons who at the initial stage itself were sentenced to life imprisonment by court verdict And whether in the latter case guidelines are mandatory under Article 72 and 161 and a well designed scheme of remission must be formulated if the constitutional guarantee under Articles 14 and 21 is to be preserved d Whether the whole law of remission needs to be reviewed after Bhagirath s case wherein this Court held that imprisonment 867 for life is also an imprisonment for a term and that a life convict is entitled to set off under section 428 Cr
PC e Whether it is permissible in law to grant conditional premature release to a life convict even before completion of 14 years of actual imprisonment notwithstanding section 433A of the Code If yes whether the grant of such conditional release will be treated as the prisoner actually serving time for the purpose of section 433A of the Code First the legislative history
The Law Commission had in its 42nd Report submitted in June 1971 suggested numerous changes in the Indian Penal Code IPC
Pursuant thereto an Amendment Bill No XLII of 1972 was introduced in the Rajya Sabha on December 11 1972 proposed wide ranging changes in the IPC
One change proposed was to bifurcate section 302 IPC into two parts the first part providing that except in cases specified in the second part the punishment for murder will be imprisonment for life whereas for the more heinous crimes enumerated in clauses a to c of sub section 2 the punishment may be death or imprisonment for life
A motion for reference of the Bill to the Joint Committee of both the Houses was moved in the Rajya Sabha on December 14 1972 by the then Minister of State in the Ministry of Home Affairs and was adopted on the same day
The Lok Sabha concurred in the motion of the Rajya Sabha on December 21 1972
The Joint Parliamentary Committee presented its report to the Rajya Sabha on January 29 1976 recommending changes in several clauses of the Bill
While retaining the amendment proposed in section 302 IPC it recommended inclusion of one more clause d after clause c in sub section 2 thereof and at the same time recommended deletion of section 303 IPC
It also recommended substitution of the existing section 57 IPC by a totally new section the proviso whereto has relevance
The proposed proviso was as under Provided that where a sentence of imprisonment for life is imposed on conviction of a person for a capital offence or where a sentence of death imposed on a person has been commuted into one of imprisonment for life such person shall not be released from prison unless he had served at least fourteen years of imprisonment
 The reason which impelled the Committee to introduce the above proviso was That sometimes due to grant of remission even murderers sentenced or commuted to life imprisonment were released at the end 868 of 5 to 6 years
 The Committee therefore felt that such a convict should not be released unless he has served atleast 14 years of imprisonment
It is evident from the scheme of the aforesaid recommendations that the proviso was intended to apply to only those convicts who were convicted for a capital offence this expression was defined by clause 15 of the Bill recommending substitution of section 40 IPC as an offence for which death is one of the punishments provided by law  or whose sentence of death was commuted into one of imprisonment for life and not to those who were governed by the first part of the proposed section 302 IPC
It was pointed out by counsel that similar benefit would have accrued to offenders convicted for offences covered under section 305 307 or 396 if the proposed sections 305 307b and 396b had come into being
That contends the petitioner s counsel would have considerably narrowed down the scope of the proposed proviso to section 57 IPC and consequently the rigour of the said provision would have fallen on a tiny minority of offenders guilty of a capital offence
Pursuant to the recommendations made by the Committee two bills namely the IPC Amendment Bill 1978 came to be introduced the former was passed with changes by the Rajya Sabha on November 23 1978 while the latter was introduced in the Lok Sabha on November 8 1978 and in the Rajya Sabha on December 5 1978
The proposal to add a proviso to the proposed section 57 IPC did not find favour as it was thought that the said subject matter appropriately related to Chapter XXXII of the Code and accordingly the said provision was introduced as section 433A in the Code
While the amendments to the Code became law with effect from December 18 1978 the IPC amendments though passed by the Rajya Sabha could not be got through the Lok Sabha and lapsed
It may here be mentioned that the IPC Bill as approved by the Rajya Sabha contained the proposal to divide section 302 into two parts in fact an additional clause was sought to be introduced in the second part thereof and sections 305 307 and 396 were also sought to be amended as proposed by the Committee
This in brief is the legislative history
In the backdrop of the said legislative history counsel for the petitioner argued that a legislative fraud was practised by enacting section 433A of the Code and failing to carry out the corresponding changes in sections 302 305 307 396 etc assured by the passing of the Indian Penal Code Amendment Act 1978 by the Rajya Sabha on November 23 1978
According to him it is evident from the scheme of the twin Amendment Bills that the legislative intent was to apply the rigour of section 433A of the Code to a small number of heinous 869 crimes which fell within the meaning of the expression capital offence
It was to achieve this objective that section 302 IPC was proposed to be bifurcated so that a large number of murders would fall within the first part of the proposed provision which prescribed the punishment of life imprisonment only and thus fell beyond the mischief of section 433A of the Code
To buttress his submission our attention was invited to Annexure II to the petition which is a copy of the letter dated July 10 1979 written by the Joint Secretary in the Ministry of Home Affairs to Home Secretaries of all the concerned State Governments explaining the purport of the newly added section 433A After explaining that section 57 IPC had a limited scope namely calculating fractions of terms of imprisonment only he proceeds to state in paragraph 3 of the letter as under The restrictions imposed by section 433A applies only to those life convicts who are convicted for offences for which death is one of the punishments prescribed by law
In the Indian Penal Code Amendment Bill 1978 as passed by the Rajya Sabha and now pending in the Lok Sabha section 302 is proposed to be amended so as to provide that the normal punishment for murder shall be imprisonment for life and that only in certain cases of aggravating circumstances will the court have discretion to award death sentences
 Then in paragraph 4 he proceeds to clarify as under Even regarding these convicts the restriction imposed by section 433A is not absolute for the Constitutional power of the Governor under Article 161 to commute and remit sentences remains unaffected and can be exercised in each case in which the exercise of this power is considered suitable
 Then in paragraph 4 he proceeds to clarify as under Even regarding these convicts the restriction imposed by section 433A is not absolute for the Constitutional power of the Governor under Article 161 to commute and remit sentences remains unaffected and can be exercised in each case in which the exercise of this power is considered suitable
 In paragraph 6 of the detailed note appended to the said letter the legal position was explained thus It may be pointed out that the restriction introduced by section 433A does not apply to all life convicts
It applies only to those prisoners who are convicted of a capital offence ie an offence for which death is one of the punishments prescribed by law
Once the Indian Penal Code Amendment Bill becomes the law offenders sentenced 870 under proposed section 302i will not be covered by this provision as the offence will not be a capital offence
Thus in future the restriction introduced by section 433A will not be applicable to them and will in effect cover only a very small number of cases
Even in this small number of cases the restriction will not in any way curb the Constitutional power to grant remission and commutation vested in the President or the Governor by virtue of Articles 72 and 161
 There can be no doubt that by this letter it was clarified that section 433A of the Code will apply to only those convicted of a capital offence and not to all life convicts
It is equally clear that the said provision was expected to apply to exceptionally heinous offences falling within the definition of capital offence  once the Indian Penal Code Amendment Bill became law
Section 433A was therefore expected to deny premature release before completion of actual 14 years of incarceration to only those limited convicts convicted of a capital offence ie an exceptionally heinous crime specified in the second part of the proposed section 302 IPC
Lastly it clarifies that section 433A cannot and does not in any way affect the constitutional power conferred on the PresidentGovernor under ARticle 72161 of the Constitution
It cannot therefore be denied that this letter and the accompanying note does give an impression that certain provisions of the Indian Penal Code Amendment Boll were interlinked with section 433A of the Code
Assuming the Criminal Procedure Code Amendment Bill and the Indian Penal Code Amendment Bill were intended to provide an integrated scheme of legislation can it be said that the failure on the part of the Lok Sabha to pass the letter renders the enactment of the former by which section 433A was introduced in the Code a legislative fraud  as counsel had liked to call it or to use a more familiar expression colourable exercise of legislative power  Counsel submitted that section 433A was got introduced on the statute book by deception in that when the former Bill was made law an impression was given that the twin legislation which had already been cleared by the Rajya Sabha on November 23 1978 would in due course be cleared by the Lok Sabha also so that the application of section 433A would be limited to capital offences only and would have no application to a large number of lifers 
It must be conceded that such would have been the impact if the Indian Penal Code Amendment Bill was passed by the Lok Sabha in the form in which the Rajya and approved it
871 This is not a case of legislative incompetence to enact section 433A
No such submission was made
Besides the question of vires of section 433A of the Code has been determined by the Constitution Bench of this Court in Maru Ram s case
This Court repelled all the thrusts aimed at challenging the constitutional validity of section 433A
But counsel submitted that the question was not examined from the historical perspective of the twin legislations
Counsel for the State submitted that it was not permissible for us to reopen the challenge closed by the Constitution Bench on the specious plea that a particular argument or plea was not canvassed or made before that Bench
The objection raised by counsel for the State Government is perhaps not without substance but we do not propose to deal with it because even otherwise we see no merit in the submission of the petitioner s counsel
It is only when a legislature which has no power to legislate frames a legislation so camouflaging it as to appear to be within its competence when it knows it is not it can be said that the legislation so enacted is colourable legislation
In KC Gajapati Narayan Deo vs State of Orissa  the Orissa Agricultural Income tax Amendment Act 1950 was challenged on the ground of colourable legislation or a fraud on the Constitution as its real purpose was to effect a drastic reduction in the amount of compensation payable under the Orissa Estates Abolition Act 1952
The facts were that a Bill relating to the Orissa Abolition Act 1952 was published in the Gazette on January 3 1950
It provided that any sum payable for agricultural income tax for the previous year should be deducted from the gross asset of an estate for working out the net income on the basis whereof compensation payable to the estate owner could be determined
Thereafter on January 8 1950 a Bill to amend the Orissa Agricultural Income tax 1947 was introduced to enhance the highest rate of tax from 3 annas to 4 annas in a rupee and to reduce the highest slab from Rs 30000 to Rs 20000
The next Chief Minister however dropped this Bill and introduced a fresh Bill enhancing the highest rate to 12 annas 6 pies in a rupee and reducing the highest slab to rs
15000 only
On the same becoming law it was challenged on the ground that the real purpose of the legislation was to drastically reduce the compensation payable to the estate owners
Mukherjea J who spoke for the Court observed as under It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature
The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law
If 872 the legislature is competent to pass a particular law the motives which impelled it to act are really irrelevant
On the other hand if the legislature lacks competency the question of motive does not arise at all
Whether a statute is constitutional or not is thus always a question of power
 Thus the whole doctrine resolves itself into a question of competency of the concerned legislature to enact the impugned legislation
If the legislature has transgressed the limits of its powers and if such transgression is indirect covert or disguised such a legislation is described as colourable in legal parlance
The idea conveyed by the use of the said expression is that although apparently a legislature in passing the statute purported to act within the limits of its powers it had in substance and reality transgressed its powers the transgression being veiled by what appears on close scrutiny to be a mere pretence or disguise
In other words if in pith and substance the legislation does not belong to the subject falling within the limits of its power but is outside it the mere form of the legislation will not be determinate of the legislative competence
In Sonapur Tea Co Ltd vs Must
Mazirunnessa  it was reiterated relying on Gajapati s case that the doctrine of colourable legislation really postulates that legislation attempts to do indirectly what it cannot do directly
Such is not the case before us
It is no body s contention that Parliament was not competent to amend the Criminal Procedure Code by which section 433A was inserted
Whether or not the connecting Indian Penal Code Amendment Bill ought to have been cleared or not was a matter left to the wisdom of the Lok Sabha
Merely because the Criminal Procedure Bill was made law and the Indian Penal Code Amendment Bill was passed by the Rajya Sabha did not obligate the Lok Sabha to clear it
The Lok Sabha to clear it
The Lok Sabha could have its own views on the proposed Indian Penal Code amendments
It may agree with the executive s policy reflected in the Bill with or without modifications or not at all
Merely because in the subsequent instructions issued by the letter of July 10 1979 and the accompanying note Annex
II the Joint Secretary had interlinked the two Bills the Lok Sabha was under no obligation to adopt the measure as such representation could not operate as estoppel against it
Even the indirect attempt on the part of the High Court of Himachal Pradesh in the ragging case to force the State Government to legislate State of Himachal Pradesh vs A Parent of a student of Medical College Simla 1985 3 SCC 169 was disapproved by this Court as a matter falling outside the functions and duties of the judiciary
It is therefore obvious that no question of mala fides on the part of the legislature was involved in the enactment of one legislation and failure to 873 enact another
There is no question of legislative fraud  or colourable legislation  involved in the backdrop of the legislative history of section 433A of the Code as argued on behalf of the petitioner
Counsel for the Petitioner However tried to seek support form the Privy Council decision in WR Moram vs Deputy Commissioner of Taxation for NSW Wherein the question to be considered was whether the legislative scheme was a colourable one forbidden by section 5ii of the Australian Constitution
There was no attempt to disguise the scheme as it was fully disclosed
The Privy Council while holding that the scheme was not a colourable legislation observed that where there is admittedly a scheme of proposed legislation it seems to be necessary when the pith and substance  or scope and effect  of any one of the Acts is under consideration to treat them together and to see how they interact 
But that was a case where the scheme was carried out through enactments passed by the concerned legislatures
It is in that context that the above observations must be read and understood
In the present case also if both the Bills had become law counsel would perhaps have been justified in demanding that in understanding or construing one legislation or the other the scheme common to both must be kept in view and be permitted to interact
But where the linkage does not exist on account of the Indian Penal Code Amendment Bill not having become law we are unable to appreciate how section 433A can be read down to apply to only those classes of capital offences to which it would have applied had the said Bill been passed by the Lok Sabha in the terms in which it was approved by the Rajya Sabha
The language of section 433A is clear and unambiguous and does not call for extrinsic aid for its interpretation
To accept the counsel s submission to read down or interpret section 433A of the Code with the aid of the change proposed by the Indian Penal Code Amendment Bill would tantamount to treating the provisions of the said Bill as forming part of the Indian Penal Code which is clearly impermissible
To put such an interpretation with the aid of such extrinsic material would result in violence to the plain language of section 433A of the Code
We are therefore unable to accept even this second limb of the contention
The law governing suspension remission and commutation of sentence is both statutory and constitutional
The stage for the exercise of this power generally speaking is post judicial ie after the judicial process has come to an end
The duty to judge and to award the appropriate punishment to the guilty is a judicial function which culminates by a judgment pronounced in accordance with law
After 874 the judicial function thus ends the executive function of giving effect to the judicial verdict commences
We first refer to the statutory provisions
Chapter III of IPC deals with punishments
The punishments to which the offenders can be liable are enumerated in section 53 namely i death ii imprisonment for life iii imprisonment of either description namely rigorous or simple iv forfeiture of property and v fine
Section 54 empowers the appropriate government to commute the punishment of death for any other punishment
Similarly section 55 empowers the appropriate government to commute the sentence of imprisonment for life for imprisonment of either description for a term not exceeding 14 years
Chapter XXXII of the Code to which section 433A was added entitled Execution Suspension Remission and Commutation of sentences  contains sections 432 and 433 which have relevance the former confers power on the appropriate government to suspend the execution of an offender s sentence or to remit the whole or any part of the punishment to which he has been sentenced while the latter confers power on such Government to commute a a sentence of death for any other punishment b a sentence of imprisonment for life for imprisonment for a term not exceeding 14 years of for fine c a sentence of rigorus imprisonment for simple imprisonment or for fine and d a sentence of simple imprisonment for fine
It is in the context of the aforesaid provisions that we must read section 433A which runs as under 433A Restriction on powers of remission or commutation in certain cases 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 a sentence of death imposed on a person has been commutted 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 imprisonment
 The section begins with a non obstante clause notwithstanding anything contained in section 432 and proceeds to say that where a person is convicted for an offence for which death is one of the punishments and has been visited with the lesser sentence of imprisonment for life or where the punishment of an offender sentenced to death has been commuted under section 433 into one of imprisonment for life such offender will not be released unless he has served at least 14 years of imprisonment
The reason which impelled the legislature to insert this provision has been stated earlier
Therefore one who could have been 875 visited with the extreme punishment of death but on account of the sentencing court s generosity was sentenced to the lesser punishment of imprisonment for life and another who actually was sentenced to death but on account of executive generosity his sentence was commutted under section 433a for imprisonment for life have been treated under section 433A as belonging to that class of prisoners who do not deserve to be released unless they have completed 14 years of actual incarceration
Thus the effect of section 433A is to restrict the exercise of power under sections 432 and 433 by the stipulation that the power will not be so exercised as would enable the two categories of convicts referred to in section 433A to freedom before they have completed 14 years of actual imprisonment
This is the legislative policy which is clearly discernible from the plain language of section 433A of the Code
Such prisoners constitute a single class and have therefore been subjected to the uniform requirement of suffering atleast 14 years of internment
Counsel for the petitioner next submitted that after this court s decision in Bhagirath s case permitting the benefit of set off under section 428 in respect of the detention period as an undertrial the ratio of the decision in Godse s case must be taken as impliedly disapproved
We see no basis for this submission
In Godse s case the convict who was sentenced to transportation for life had earned remission for 2963 days during his internment
He claimed that in view of section 57 read with section 53A IPC the total period of his incarceration could not exceed 20 years which he had completed inclusive of remission and therefore his continued detention was illegal
Section 57 IPC reads as follows 57
Fractions of terms of punishment In calculating fractions of terms of punishment imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years
 The expression imprisonment for life  must be read in the context of section 45 IPC
Under that provision the word life  denotes the life of a human being unless the contrary appears from the context
We have seen that the punishments are set out in section 53 imprisonment for life being one of them
Read in the light of section 45 it would ordinarily mean imprisonment for the full or complete span of life
Does section 57 convey to the contrary Dealing with this contention based on the language of section 57 this Court observed in Godse s case at pages 444 45 as under 876 Section 57 of the Indian Penal Code has no real bearing on the question raised before us
For calculating fractions of terms of punishment the section provides that transportation for life shall be regarded as equivalent to imprisonment for twenty years
It does not say that transportation for life shall be deemed to be transportation for twenty years for all purposes nor does the amended section which substitutes the words imprisonment for life for transportation for life enable the drawing of any such all embracing fiction
A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person s natural life
 This interpretation of section 57 gets strengthened if we refer to sections 65 116 120 and 511 of the Indian Penal Code which fix the term of imprisonment thereunder as a fraction of the maximum fixed for the principal offence
It is for the purpose of working out this fraction that it became necessary to provide that imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years
If such a provision had not been made it would have been impossible to work out the fraction of an in definite term
In order to work out the fraction of terms of punishment provided in sections such as those enumerated above it was imperative to lay down the equivalent term for life imprisonment
The second contention urged before the Court in Godse s case was based on the Bombay Rules governing the remission system framed in virtue of the provisions contained in the 
This Court pointed out that the did not confer on any authority a power to commute or remit sentences
The Remission Rules made thereunder had therefore to be confined to the scope and ambit of that statute and could not be extended to other statutes
Under the Bombay Rules three types of remissions for good conduct were allowed and for working them out transportation for life was equated to 15 years of actual imprisonment
Dealing with Godse s plea for premature release on the strength of these rules this Court observed at page 447 as under The rules framed under the enable such a person to remission ordinary special and State and the said remissions will be given credit towards his term of imprisonment
For the purpose of working out the remis 877 sions 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 an appropriate Government to remit the sentence under section 401 now section 432 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 province of the appropriate Government and in this case it is admitted that though the appropriate Government made certain remissions under section 401 of the Code of Criminal Procedure it did not remit the entire sentence
 On this line of reasoning the submission of counsel that if the Court were to take the view that transportation for life or imprisonment for life enures till the last breath of the convict passes out the entire scheme of remissions framed under the or any like statute and the whole exercise of crediting remissions to the account of the convict would collapse was spurned
This Court came to the conclusion that the Remission Rules have a limited scope and in the case of a convict undergoing sentence of transportation for life or imprisonment for life it acquires significance only if the sentence is commuted or remitted subject to section 433A of the Code or in exercise of constitutional power under Articles 72161
In Maru Ram s case the Constitution Bench reaffirmed the ratio of Godse s case and held that the nature of a life sentence is incarceration until death judicial sentence for 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 by the appropriate Government or on a clemency order in exercise of power under Articles 72161 of the Constitution
At page 1220 the Constitution Bench expressed itself thus Ordinary where a sentence is for a definite term the calculus of remissions may benefit the prisoner to instant release at that point where the substraction result is zero
878 Here we are concerned with life imprisonment and so we come upon another concept bearing on the nature of sentence which has been highlighted in Godse s case
Where the sentence is indeterminate or of uncertain duration the result of substraction from an uncertain quantity is still an uncertain quantity and release of the prisoner cannot follow except on some fiction of quantification of a sentence of uncertain duration
 Referring to the facts of Godse s case and affirming the view that the sentence of imprisonment for life enures upto the last breath of the convict this Court proceeded to estate as under 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 the long accumulation of remissions
 It is therefore clear from the aforesaid observations that unless the sentence for life imprisonment is commuted or remitted as stated earlier by the appropriate authority under the provisions of the relevant law a convict is bound in law to serve the entire life term in prison the rules framed under the or like statute may enable such a convict to earn remissions but such remissions will not entitle him to release before he has completed 14 years of incarceration in view of section 433A of the Code unless of course power has been exercised under Article 7161 of the Constitution
It will thus be seen from the ratio laid down in the aforesaid two cases that where a person has been sentenced to imprisonment for life the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and must be confined to the scope and ambit of the said rules and do not acquire significance until the sentence is remitted under section 432 in which case the remission would be subject to limitation of section 433A of the Code or constitutional power has been exercised under Article 72161 of the Constitution
In Bhagirath s case the question which the Constitution Bench was required to consider was whether a person sentenced to imprisonment for life can claim the benefit of section 428 of the Code which inter alia provides for setting off the period of detention undergone by the accused as an undertrial against the sentence of 879 imprisonment ultimately awarded to him
Referring to section 57 IPC the Constitution Bench reiterated the legal position as under The provision contained in Section 57 that imprisonment for life has to be reckoned as equivalent to imprisonment for 20 years is for the purpose of calculating fractions of terms in punishment
We cannot press that provision into service for a wider purpose
 These observations are consistent with the ratio laid down in Godse and Maru Ram s cases
Coming next to the question of set off under section 428 of the Code this Court held The question of setting off the period of detention undergone by an accused as an undertrial prisoner against the sentence of life imprisonment can arise only if an order is passed by the appropriate authority under section 432 of section 433 of the Code
In the absence or such order passed generally or specially and apart from the provisions if any of the relevant Jail Manual imprisonment for life would mean according to the rule in Gopal Vinayak Godse imprisonment for the remainder of life
 We fail to see any departure from the ratio of Godse s case on the contrary the afore quoted passage clearly shows approval of that ratio and this becomes further clear from the final order passed by the Court while allowing the appealwrit petition
The Court directed that the period of detention undergone by the two accused as undertrial prisoners would be set off against the sentence of life imprisonment imposed upon them subject to the provisions contained in section 433A and provided that orders have been passed by the appropriate authority under section 433 of the Code of Criminal Procedure 
These directions make it clear beyond any manner of doubt that just as in the case of remissions so also in the case of set off the period of detention as undertrial would enure to the benefit of the convict provided the appropriate Government has chosen to pass an order under sections 432433 of the Code
The ratio of Bhagirath s case therefore does not run counter to the ratio of this Court in the case of Godse or Maru Ram
Under the Constitutional Scheme the President is the Chief Executive of the Union of India in whom the executive power of the Union vests
Similarly the Governor is the Chief Executive of the 880 concerned State and in him vests the executive power of that State
Articles 72 and 161 confer the clemency power of pardon etc on the President and the State Governors respectively
Needless to say that this constitutional power would override the statutory power contained in sections 432 and 433 and the limitation of section 433A of the Code as well as the power conferred by sections 54 and 55 IPC
No doubt this power has to be exercised by the PresidentGovernor on the advice of his Council of Ministers
How this power can be exercised consistently with Article 14 of the Constitution was one of the Questions which this Court was invited to decide in Maru Ram s case
In order that there may not be allegations of arbitrary exercise of this power this Court observed at pages 1243 44 as under The proper thing to do if Government is to keep faith with the founding fathers is to make rules for its own guidance in the exercise of the pardon power keeping ofcourse 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 color or political loyalty
 Till such rules are framed this Court thought that extant remission rules framed under the or under any other similar legislation by the State Governments may provide effective guidelines of a recommendatory nature helpful to the Government to release the prisoner by remitting the remaining term
It was therefore suggested that the said rules and remission schemes be continued and benefit thereof be extended to all those who come within their purview
At the same time the Court was aware that special cases may require different considerations and the wide power of executive clemency cannot be bound down even by self created rules 
Summing up its findings in paragraph 10 at page 1249 this Court observed We regard it as fair that until fresh rules are made in keeping with the experience gathered current social conditions and accepted penological thinking a desirable step in our view the present remissions and release schemes may usefully be taken as guidelines under ARticles 72161 and orders for release passed
We cannot fault the Government if in some intractably savage delinquents section 881 433A is itself treated as a guideline for exercise of Articles 72161
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
 It will be obvious from the above that the observations were purely recommendatory in nature
In Kehar Singh s case on the question of laying down guidelines for the exercise of power under Article 72 of the Constitution this Court observed in paragraph 16 as under It seems to us that there is sufficient indication in the terms of Article 72 and in the history of the power enshrined in that provision as well as existing case law and specific guidelines need not be spelled out
Indeed it may not be possible to lay down any precise clearly defined and sufficiently channelised guidelines for we must remember that the power under Article 72 is of the widest amplitude can contemplate a myriad kind of and categories of cases with facts and situations varying from case to case in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time
And it is of great significance that the function itself enjoys high status in the constitutional scheme
 These observations do indicate that the Constitution Bench which decided Kehar Singh s case was of the view that the language of Article 72 itself provided sufficient guidelines for the exercise of power and having regard to its wide amplitude and the status of the function to be discharged thereunder it was perhaps unnecessary to spell out specific guidelines since such guidelines may not be able to conceive of all myraid kinds and categories of cases which may come up for the exercise of such power
No doubt in Maru Ram s case the Constitution Bench did recommend the framing of guidelines for the exercise of power under Articles 72161 of the Constitution
But that was a mere recommendation and not a ratio decidendi having a binding effect on the Constitution Bench which decided Kehar Singh s case
Therefore the observation made by the Constitution Bench in Kehar Singh s case does not upturn any ratio laid down in Maru Ram s case
Nor has the Bench in Kehar Singh s case said anything with regard to using the 882 provisions of extent Remission Rules as guidelines for the exercise of the clemency powers
It is true that Articles 72161 make use of two expressions remissions  with regard to punishment and remit  in relation to sentence but we do not think it proper to express any opinion as to the content and amplitude of these two expressions in the abstract in the absence of a fact situation
We therefore express no opinion on this question formulated by the learned counsel for the petitioner
Lastly the learned counsel for the petitioner raised a hypothetical question whether it was permissible in law to grant conditional premature release to a life convict even before completion of 14 years of actual imprisonment which release would tantamount to the prisoner serving time for the purpose of section 433A of the Code It is difficult and indeed not advisable to answer such a hypothetical question without being fully aware of the nature of conditions imposed for release
We can do no better than quote the following observations made at page 1247 in Maru Ram s case   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 high walled 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 test
Licencsed where instant re capture is sanctioned by the law and likewise parole where the parole is not 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 section 433A
Therefore in each case the question whether the grant of conditional premature release answers the test laid down by this Court in the afore quoted passage would depend on the nature of the conditions imposed and the circumstances in which the order is passed and is to be executed
No general observation can be made and we make none
883 In paragraph 10 of the memorandum of the Writ petition
 three reasons have been assigned for invoking this Court s jurisdiction under Article 32 of the Constitution viz i the questions involved in this petition will affect the right of a large body of life convicts seeking premature release ii this Court s judgment in Bhagirath s case deviated from the ratio laid down in Godse s case and therefore the entire law of remissions needed a review and iii the High Court of Rajasthan had refused to examine the merits of the various important questions of law raised before it
It is on account of the fact that this petition was in the nature of a representative petition touching the rights of a large number of convicts of the categories referred to in section 433A of the Code that we have dealt with the various questions of law in extenso
Otherwise the petition could have been disposed of on the narrow ground that even though in view of sections 433A of the Code premature release could not be ordered under sections 432433 of the Code read with the 1958 Rules until the petitioner had completed 14 years of actual imprisonment his release could be considered in exercise of powers under Articles 72161 of the Constitution treating the 1958 Rules guidelines if necessary
The relief claimed in the petition is two fold namely a to grant a mandamus to the appropriate Government for the premature release of the petitioner by exercising constitutional power with the aid of 1958 Rules and b to declare the petitioner s continued detention as illegal and void
The petitioner has not completed 14 years of actual incarceration and as such he cannot invoke sections 432 and 433 of the Code
His continued detention is consistent with section 433A of the Code and there is nothing on record to show that it is otherwise illegal and void
The outcome of his clemency application under the constitution is not put in issue in the present proceedings if it has been rejected and if the same is pending despite the directive of the High Court it would be open to the petitioner to approach the High Court for the compliance of its order
Under the circumstance no mandamus can issue
The writ petition must therefore fail
It is hereby dismissed
Rule discharged
GN Petition dismissed


Summary:
The appellant Co operative Housing Society Ltd made some unauthorised constructions in a 36 storeyed building
The Bombay Municipal Corporation issued a show cause notice calling upon the society to show cause as to why the upper eight floors of the building should not be demolished so as to limit the development to the permissible Floor Space Index FSI since the additional Floor Space Index to the extent of 2773 sq
was gained by the appellant
The appellants submitted a reply to the show cause notice
The Administrator of the Municipal Corporation made an order on 21st Septmber 1984 requiring the appellant to demolish 24000 sq
on the eight upper floors of the building on the basis of 3000 sq
on each floor
The Administrator as well as the State Government dismissed the representation and appeal by the appellant
So the appellant filed a writ petition in the High Court which also dismissed with the observation that the appellant be given a choice to reduce the construction upto permissible limit by any alternative proposal within the four corners of the rules and regulations within one month from 28th October 1985 the Municipality may consider
The appellant made application to the Municipal Corporation giving several alternative proposals on 21st November 1985
But it also preferred a special leave petition before this court against the High Court Judgment
The special leave petition leave petition was dismissed on January 17 1986
The appellants alleged that they submitted another proposal to the Municipal Corporation on 17th February 1986 and a meeting for hearing alternative proposals was fixed up by the Municipal commissioner and put forward its case in support of the new proposals and the Municipal Commissioner said he would consider the proposals and take decision
On 27th December 1988 the appellant wrote a letter to the Municipal Commissioner to consider the alternative proposal ie of 746 vertical demolition of the building instead of demolishing the eight upper floors
In January 1989 the officers of the corporation agreed that demolition can be made vertically so as to bring the entire construction within the permissible Floor Space Index where as the work of demolition of upper eight floors of the building were entrusted to a company by the Municipal Commissioner
So the appellant again filed a writ in the High Court
It was dismissed by the Single Judge as well as by the Division Bench dated 5th March 1990
The appellants came by Special Leave Petition in this Court The main grievance of the appellant being that vertical demolition proposal was not considered
Inspite of orders of this Court in this regard to the Municipal Corporation no agreeable solution could fructify
The proposal was examined by the Municipal Commissioner but rejected on 13th November 1990 and submitted the detailed report to this Court
Dismissing the petition the Court HELD The appellant had made illegal constructions in violation of Floor Space Index to the extent of more than 24000 sq
The decision taken by the Municipal Commissioner does not suffer from any want of jurisdiction nor is violative of any law or rules
It is well settled that the High Court under Article 226 of the Constitution is not an appellate Court on the administrative decision taken by the authorities
Since the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands
Such unlawful constructions are against public interest and hazardous to the safety of occupiers and residents of the multistoreyed buildings
749F 750B E F This case should be a pointer to all the builders that making of unauthorised construction never pays and is against the interest of the society at large
The rules regulations and by laws are made by the corporations or development authorities taking in view the larger public interest of the society and it is the bounden duty of the citizens of obey and follow such rules which are made for their own benefits
750H 715B