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
86579 64180 409 783 695 690 747 4346 of 1980 14779 186080 2389 4115 1365 457869 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 section K Bagga and Mrs section 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
section K lain A section 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 section M Ashri for the Petitioners in WP 747
section N Kacker R N Kataria G K Bansal  B section 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
Khanduja for the Petitioner in WP 1860
Arun Madon for the Petitioner in WP 2389
A section 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 section 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  section 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
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 147
O P Rana section C Maheshwari and R K Bhatt for State of UP in 865 4392 95 4376 91
O P Sharma and M section Dhillon for r in 457  869
M C Bhandare and M N Shroff for r State in WP 2505
M Veerappa for other appearing rr
in WP 2602 10
P Ram Reddy and G N Rao for r in WP 4115
The Judgment of Hon ble CJ 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 section 433A of the Criminal Procedure Code Procedure Code for short which compels caging  of two classes of prisoners atleast 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 section 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
433a 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 section 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 eitheror 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 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 even earlier
Then came in 1978 despite the strident
peals of human rights of that time a parliamentary amendment to the procedure Code and section 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 section 433a 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 article 32 and the despondent prisoners have showered arguments against the privative provision section 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 section 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 freedl 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 section 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 imprisonment
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
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 sections 432 and 433 sections 401 and 402 of the 1898 Code but section 433A is altogether new Ay there s the rub 
It is obvious that section 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 section 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 section 433a 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 article 161 of the Constitution but mention it here to prove what perhaps provoked Parliament to enact section 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 section 433a 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 section 57 of the Penal Code
Its appropriate place was in the Procedure Code and so section 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 explanation 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 section 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 imprisonment
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 section 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 sections 432 and 433 and study the heritage of articles 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 articles 72 and 161 by the enactment of section 433A Sarvashri Nand Lal RK 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 section 433A
The next contention voiced with convincing vigour by Shri Tarkunde was that section 433A violated article 14 being wholly arbitrary and irrational
Shri Mridul with persuade flavour stressed that section 433A lacked legislative competency under the Lists and must be struck down for the additional reason of contravention of article 201 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 section 433A thanks to the savings provision in section 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 section 302 IPC and the necessity of having to read down the text of section 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 section 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 articles 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 section 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 frippery
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 section 433A
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 provision
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 2462 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 section 433A which merely enacts a rider as it were to sections 432 and 433a
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 section 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 section 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 which in section 5927 expressly sanctions rules for premature release
Even so the power of the State is subject to article 2461 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 there is hardly any doubt that section 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 section 433A and the savings provision in section 5 of the Procedure Code itself
The contention was that section 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 section 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 section 433A and emphasise the obvious it easily discloses the dividing line between sense and non sense
The fasciculus of clauses sections 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 section 432 and the whole mandate of the rest of the Section necessarily subjects the operation of section 433a 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 section 433A
The argument is that the non obstante clause covers only section 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 section 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 section 433A
Why  Because the non obstante clause is limited in nature and excludes only section 432
The  is existing law  saved by article 36610 and article 3721
Section 59 of that Act vests rule making power in States
Specifically section 595 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 section 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 are valid and cannot be dismissed as State law a harmonious reading of section 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 section 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 section 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 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
We have no hesitation to hold that notwithstanding the notwithstanding  in section 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 section 432 in the non obstante clause
The scheme of section 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 articles 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 sections 432433 or articles 72161
And if the latter power under the Constitution is not invoked the only source of salvation is the play of power under sections 432 and 433a 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 section 4321
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 section 4321 read with the Remission Rules
That is why Parliament tracing the single source of remission of sentence to section 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 section 432
So read the inference is inevitable even if the contrary argument be ingenious that section 433A achieves what it wants arrest the release of certain classes of lifers  before a certain period by blocking section 432
articles 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 untouched
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 arithmetic effect
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 section 55 IPC
On the basis of a rule which did make that equation Godse sought his release through a writ petition under article 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 section 401 of the Criminal Procedure Code 1898 corresponding to section 432 of the 1973 Code by the appropriate Government or on a clemency order in exercise of power under articles 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 cases thus 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 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 section 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 section 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 the prisoner
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 in tact
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 section 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 section 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 section 432 or articles 72161 of the Constitution
The next submission urged to show that section 433A is bad is based on article 201 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 article 201 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 section 433A
This indirectly casts a heavier punishment than governed the Crime when it was committed
Neither argument has force
The first one fails because section 302 IPC 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 section 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 vs Commonwealth   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 section 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 same life term
And remission 1223 vests no right to release when the sentence is life imprisonment
No greater punishment is inflicted by section 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 vs State of Maharashtra AIR 1974 SC 147 and State of Madhya Pradesh vs Ratan Singh  ors
1976 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 eg 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 section 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 section 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 section 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 section 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 vs 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 12 of the Criminal Procedure Code 1898 is the previous incarnation of section 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 CJ 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 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 section 12 Criminal PC
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 some times 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 section 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 section 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 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
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 section 5
The stage is now set for considering the contention that section 433A violates article 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 article 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 situation
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 section 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 section 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 textual crease
Surely arbitrary penal legislation will suffer a lethal blow under article 14
But the main point here is whether section 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 hands off
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 observed 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 intervene officiously
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 stated 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 article 21 and the irrationality of arbitrary incarceratory brutality violative of article 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 section 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 section 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 law section 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 TM 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 articles 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 legislators
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 altogether
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 victoriously absent
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 inside prison
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 has 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 article 14
Another argument based on article 14 may also be briefly dealt with although we are not carried away by it
In terms section 433A applies only To two classes of life imprisonment
The true content of the provision is that in the two specific categories specified in section 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 section 433a reduces the lethal rigour to life term
These classes of cases are categorised separately by section 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 article 13 read with article 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 section 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 speciality
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 section 433A
We have already held that article 201 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 section 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 articles 72 and 161 and the effect of section 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 section 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 article 20l which has already been dealt with
What we mean to do is so to read the predicate used in section 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 section 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 section 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 section 433A comes into force goes out of the pale of the provision and will enjoy such benefits as accrued to him before section 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 section 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 section 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 liberty
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 section 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 section 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 section 433 A came into force but allows the appeal and convicts the accused after section 433 A came into force such persons will also be entitled to the benefit of the remission system prevailing prior to section 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 section 433 A Nobody has a case indeed can be heard to contend that Articles 72 and 161 must yield to section 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 suprema lex and any legislation even by Parliament must bow before it
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 sections 432 and 433 have verbal verisimilitude and close kinship with the earlier Code of 1898 sections 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 articles 72 and 161 are traceable to section 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 section 433A section 432 is granted a permanent holiday for certain classes of lifers and section 433a suffers eclipse
Since sections 432 and 433a are a statutory expression and modus operandi of the constitutional power section 433A is ineffective because it detracts from the operation of section 432 and 433a 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 section 433A cannot be invalidated as indirectly violative of articles 72 and 161
What the Code gives it can take and so an embargo on sections 432 and 433a is within The legislative power of Parliament
Even so we must remember the constitutional status of articles 72 161 and it is common ground that section 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 section 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 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 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 sections 38b and 360b of the  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 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 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
An issue of deeper import demands our consideration at this stage of the discussion
Wide as the power of pardon commutation and release articles 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 constitutional order
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 relevance
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 vs State of Tamil Nadu and Maneka Gandhi vs 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 vs 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 Authority case 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  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 the 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 exercise
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 130345977 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 articles 72161 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 article 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 section 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 articles 72161 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 and not under the constitutional power
The former fails under the pressure of section 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 article 161
We strongly suggest that without break the same rules and schemes of remission be continued as a transmigration of soul into article 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 UP Prisoners  Release on Probation Act
1938 a welcome measure what with population pressure on prisons and burden on the public exchequer will survive section 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 section 433A Sections 432 433 and 433A read together
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 section 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 section 433A is understood to be a ban on parole
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
We repulse all the thrusts on the vires of section 433A
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
We affirm the current supremacy of section 433A over the Remission Rules and short sentencing statutes made by the various States
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
We hold that section 432 and section 433 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
We negate the plea that section 433A contravenes Article 201 of the Constitution
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
We declare that section 433A in both its limbs ie 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 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 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 section 433A was brought into effect
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
Considerations for exercise of power under Articles 72161 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
Although the remission rules or short sentencing provisions proprio vigore may not apply as against section 433A they will override section 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 72161 and orders for release passed
We cannot fault the Government if in some intractably savage delinquents section 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
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
1250 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
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
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 section 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 freedom
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 section 433A can be linked up with the distress of the dependants
We dismiss the Writ Petition vis a vis the challenge to section 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 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
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 society
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 himself
Valmikis are not born everyday 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 impossible
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 society
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 views thus 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 section 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 other wise there would be even more revolutions and wars than we have had throughout history
      
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 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
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 vs 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 article 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 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 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 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 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 counter productive
Thus on a consideration of the circumstances mentioned above the conclusion is inescapable that 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 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 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
So viewed I am unable to find any real inconsistency between section 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 section 433A has been challenged must fail
I dismiss the petitions with the modification that section 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
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 reasons
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 future
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 notwithstanding
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 vs 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 held to be fallacious
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
SR Petitions dismissed


Summary:
Dismissing the writ petitions but partly allowing the Court  HELD By Iyer J on behalf of Y V Chandrachud CJ 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 E F 5
Section 433A of the Code does not contravene the provisions of Article 201 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 vs State of Maharashtra  Ors 19611 3 SCR 440 reiterated 
1197 7
Section 433A in both its limbs ie 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 thereunder 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 72161 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 72161 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 72161
1249E G 11
The UP 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 A B 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 library
1250B C 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 2462 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 sections 432 and 433a
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 sections 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 2461 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 2542
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 C D 16
The fasciculus of clauses sections 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 power
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 433a 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 scope1217 A B Aswini Kumar Ghose and Another vs Aravinda loose  Another   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 sections 432433 of the Code or Articles 72161
And if the latter power under the Constitution is not invoked the only source of salvation is the play of power under sections 432 and 433a 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 4321
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 4321 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 section 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
vs Khagendranath Nath  Ors   Gopal VinayaK Godse vs State of Maharashtra  Ors   referred to
1200 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
PC 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 vs Emperor AIR 1940 Lah 29 Baldeo Bikram Sardar  Ors
vs Emperor AIR 1941 Bom
146 dissented from
In Re Net Book Agreement 1957 1962 3 All ER QBD 751 quoted with approval
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 section 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
1236 F G H 1237 A Boucher Pierre Andre vs Supdt
Central Jail Tihar
1975 I SCR 192 at 1 95 followed
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 judgment
1237D F 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 3671 and sections 38b and 360b of the  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 vs State of Punjab   applied
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 mercy
11213 F Hl 1202 Per Fazal Ali J Concurring 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 society
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 againii 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 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 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 F G 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 vs State of Punjab and others  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