TaxTMI 
TaxTMI 
1980 (11) TMI 167
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.... Kumar Jain, Dr. L. M. Singhvi, S. K. Bagga and Mrs. S. Bagga and Nand Lal for the Petitioners. P. Ram Reddy, G. N. Rao, M. Veerappa, M. C. Bhandare, M. N. Shroff, O. P. Sharma, M. S. Dhillon, Badridas Sharma, K. Parasaran, Sol. General, M. K. Banerjee, Addl. Sol. Genl. and N. Nettar and Miss A. Subhashini. O. P. Rana, S. C. Maheshwari and R. K. Bhatt for State of U.P. for The Respondent. JUDGMENT: KRISHNAIYER V.R., A procession of 'life convicts' well over two thousand strong, with more joining the march even as the arguments were on, has vicariously mobbed this court, through the learned counsel, carrying constitutional missiles in hand and demanding liberty beyond the bars. They challenge the vires of s. 433A of the Criminal Procedure Code (Procedure Code, for short) which compels 'caging' of two classes of prisoners, 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 s....
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....ong 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 s. 433A was sternly woven, with virtual consensus, into the punitive fabric obligating the actual detention in prison for full fourteen years as a mandatory minimum in the two classes of cases where the court could have punished the offender with death but did not, or where the court did punish the culprit with death but he survived through commutation to life imprisonment granted under s. 433(a) of the Procedure Code. All the lifers lugged into these two categories- and they form the bulk of lifeconvicts in our prisons-suddenly found themselves legally robbed of their human longing to be set free under the remission scheme. This poignant shock is at the back of the rain of writ petitions under Art. 32; and the despondent prisoners have showered arguments against the privative provision (s. 433A) as constitutional anathema and penological atavism, incompetent for Parliament and violative of fundamental rights and reformatory goals. The s....
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....or 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 subjectmatter we must read s 432 ad 433 too. 432. (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. D 433. The appropriate Government may, without the consent of the person sentenced, commute- (a) a sentence of death, for any other punishment provided by the Indian Penal Code. (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person migh....
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....es of cases, the Joint Committee, which went into the Indian Penal Code (Amendment) Bill, suggested that a long enough minimum sentence should be suffered by both classes of lifers. The draconian provision (as some counsel have described it) was the product of the Joint Committee's proposal to add a proviso to s. 57 of the Penal Code. Its appropriate place was in the Procedure Code and so s. 433A was enacted when the Criminal Procedure Code was amended. It was a punitive prescription made to parliamentary measure which prohibited premature release before the lifer suffered actual incarceration for 14 years. No opposition to this clause was voiced in Parliament (Sixth Lok Sabha) so far as our attention was drawn, although that was, vocally speaking, a period of high tide of human rights (1978). The objects and Reasons throw light on the 'why' of this new provision: The Code of Criminal Procedure, 1973 came into force on the 1st day of April, 1974. The working of the new Code has been carefully watched and in the light of the experience it has been found necessary to make a few changes for removing certain difficulties and doubts. The notes on clauses explain in brief the....
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....ory of ss. 432 and 433 and study the heritage of Arts. 72 and 161 of the Constitution. But this we will undertake at the appropriate stage. Before proceeding further, we may briefly formulate the contentions which have been urged by wave after wave of counsel. The principal challenge has been based upon an alleged violation of Arts. 72 and 161 by the enactment of s. 433A. Sarvashri Nand Lal, R.K. Garg, Mridul, Tarkunde and Dr. Singhvi, among others have argued this point with repetitive vehemence and feeling for personal freedom. The bar is the bastion. Indeed, Shri Garg was shocked that we were not 'shocked' by such long incarceration being made a statutory condition for release of a 'lifer' guilty of murder and was flabbergasted at even a faint suggestion that the President or the Governor might exercise his power of commutation guided, inter alia, by the parliamentary pointer expressed in s. 433A. The next contention voiced with convincing vigour by Shri Tarkunde was that s. 433A violated Art. 14 being wholly arbitrary and irrational. Shri Mridul, with persuade flavour, stressed that s. 433A lacked legislative competency under the Lists and must be struck down for the additional....
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....liminary 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 ....
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....ts to the power conferred by the preceding two sections. This Limited prescription as a proviso to the earlier prescription relates to execution of sentence, not conditions in prison or regulation of prisoner's life. The distinction between prisons and prisoners on the one hand and sentences and their execution, remission and commutation on the other, is fine but real. To bastardize s. 433A as outside the legitimacy of Entry 2 in List III is to breach all canons of constitutional interpretation of legislative Lists. Parliament has competency. Let us assume for a moment that the laws of remission and short-sentencing are enacted under Entry 4 of List II. In that event the States' competency to enact cannot be challenged. After all, even in prison-prisoner legislation, there may be beneficient provisions to promote the habilitative potential and reduce warder-prisoner friction by stick-cum-carrot strategies. Offer of remission paroles, supervised releases, opportunities for self-improvement by family contacts, time in community work centres and even meditational centres, can properly belong to prison legislation. Rewards by remissions, like punishments by privations are permissibl....
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....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 : (1) Read the statute; (2) read the statute, (3) read the statute ! If we read s. 433A and emphasise the obvious, it easily discloses the dividing line between sense and non-sense. The fasciculus of clauses (ss. 432, 433 and 433A), read as a package, makes it clear that while the Code does confer wide powers of remission and com mutation of sentences it emphatically intends to carve out an extreme category from the broad generosity of such executive power. The non obstante clause, in terms, excludes s. 432 and the whole mandate of the rest of the Section necessarily subjects the operation of s. 433(a) to a serious restriction. This embargo directs that com mutation in such cases shall not reduce the actual duration of imprisonment below 14 years. Whether that Section suffers from any fatal constitutional infirmity is another matter but it does declare emphatically an imperat....
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....cannot cut down its scope. The learned Solicitor General reinforced the conclusion by pointing out that the whole exercise of s. 433A, as the notes on clauses revealed, was aimed at excluding the impact of Prison Remissions which led to unduly early release of graver 'lifers'. Parliament knew the 'vice', had before it the State Remission Systems and sought to nullify the effect in a certain class of cases by use of mandatory language. To read down s. 433A to give overriding effect to the Remission Rules of the State would render the purposeful exercise a ludicrous futility. If 'Laws suffer from the disease of Language', courts must cure the patient, not kill him. We have no hesitation to hold that notwithstanding the 'notwithstanding' in s. 433A, the Remission Rules and like provisions stand excluded so far as 'lifers' punished for capital offences are concerned. The learned Solicitor General explained why the draftsman was content with mentioning only s. 432 in the non obstante clause. The scheme of s. 432, read with the court's pronouncement in Godse's case (supra), furnishes the clue. We will briefly indicate the argument and later expatiate on the implications of Godse's ....
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....ent 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 ? 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 imp....
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....ion from an uncertain quantity is still an uncertain quantity and release of the prisoner cannot follow except of some fiction of quantification of a sentence of uncertain duration. Godse was sentenced to imprisonment for life. He had earned considerable remissions which would have rendered him eligible for release had life sentence been equated with 20 years of imprisonment a la s. 55 I.P.C. On the basis of a rule which did make that equation, Godse sought his release through a writ petition under Art. 32 of the Constitution. He was rebuffed by this Court. A Constitution Bench, speaking through Subba Rao, J., took the view that a sentence of imprisonment for life was nothing less and nothing else than an imprisonment which lasted till the last breath. Since death was uncertain, deduction by way of remission did not yield any tangible date for release and so the prayer of Godse was refused. The nature of a life sentence is incarceration until death, judicial sentence of imprisonment for life cannot be in jeopardy merely because of long accumulation of remissions. Release would follow only upon an order under s. 401 of the Criminal Procedure Code, 1898 (corresponding to s. 432 of th....
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.... the sentence is to run until life lasts, remissions, quantified in time, cannot reach a point of zero. This is the ratio of Godse. The inevitable conclusion is that since in s. 433A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release. In this view, the remission rules do not militate against s. 433A and the forensic fate of Godse (who was later released by the State) who had stock-piled huge remissions without acquiring a right to release, must overtake all the petitioners until 14 years of actual jail life is suffered and further an order of release is made either under s. 432 or Arts. 72/161 of the Constitution. The next submission urged to show that s. 433A is bad is based on Art. 20(1) of the Constitution. It is a rule of ancient English vintage that export facto infliction of heavier penalties that prevailed at the time of commission of the offence is obnoxious. It is incarnated as Art. 20(1) in our Constitution. The short question is whether the inflexible insistence on 14 years as a minimum term for release retroactively enlarges the punishment. Another argument addressed to reach the same conclusion is that if at the time o....
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....e 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 vests no right to release when the sentence is life imprisonment. No greater punishment is inflicted by s. 433A than the law annexed originally to the crime. Nor is any vested right to remission cancelled by compulsory 14 years jail life once we realise the truism that a life sentence is a sentence for a whole life. see Sambha Ji Krishan Ji v. State of Maharashtra, AIR 1974 SC 147 and State of Madhya Pradesh v. Ratan Singh & ors. [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 (e.g. privilege of earning a shortening of sentence by good behaviour) cannot be taken away by subsequent statute. The next submission, pressed by Shri Kakkar with great plausibility, is that s. 5 of the Procedure Code saves all remissions, short-sentencing schemes as special and local laws and, therefore, they must prevail over ....
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....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....
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...., 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 s. 433A is a specific, explicit, definite provisions dealing with a particular situation. Or narrow class of cases, as distinguished from the general run of cases covered by s. 432 Cr. P. C. Section 433A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicity to a particularised treatment. It follows that s. 433A applies in preference to any special or local law because s. 5 expressly declares that specific provisions, if any, to the contrary will prevail over any special or local law. We have said enough to make the point that 'specific' is specific enough and even though 'special' to 'specific' is near allied and 'thin partition do their bounds divide' the two are different. Section 433A escapes the exclusion of s. 5. The stage is now set for considering the contention that S. 433A violates Art. 14 for two reasons. It arbitrarily ignores the unequal, yet vital, variations of crimes and c....
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....rom 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....
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....as 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. 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....
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....ment. When prison policy advances such a valid goal, the court will not intervene officiously. 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 reculturisation. Therefore the ....
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....by substantiation of this proposition because the learned Solicitor General, with sweet reasonableness and due regard to the precedents of this court, Has not disputed that reform of the prisoner is one of the major purpose of punishment. The sequiter is irresistible. Any provision that wholly or substantially discards the relevancy of restoration of the man mired by criminality is irrational. How is s. 433A affected by this vice? The argument is that 14 years in prison is an inordinate spell which is not only an unrewarding torment but a negation of reformation-indeed, the promotion of embittered hostility to society and hardening of, brutality counter-productive of hopeful humanization. The argument pressed before us is that s. 433A does injustice to the imperative of reformation of the prisoner. Had his in-prison good behaviour been rewarded by reasonable remissions linked to improved social responsibility, nurtured by familial contacts and liberal parol, cultured by predictable, premature release, the purpose of habilitation would have been served. If law-s. 433A in this case rudely refuses to consider the subsequent conduct of the prisoner and forces all convicts, good, ....
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....gh to 'the 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 highpowered 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 canno....
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....are around forty-one other offences, including attempt to murder, homicide not amounting to murder, grievous hurt, dacoity and breach of trust, where life sentence is the maximum. But the framers of the Penal Code have classified maximum sentences principally on the basis of gravity of the crime. By that token, where a terrible crime has been committed the Penal Code has prescribed death penalty as the maximum. The attack on its constitutionality has recently been repulsed by this Court. The main mass of cases where life imprisonment is actually inflicted by the courts belongs to the "either or" category where the court has the responsible discretion to impose death penalty or life imprisonment and actually awards only life imprisonment. Even in cases where the court sentences a convict to death the appropriate Government often by virtue of s. 433(a) reduces the lethal rigour to life term. These classes of cases are categorised separately by s. 433A. When the crime is so serious as to invite death penalty as a possible sentence, Parliament, in its wisdom, takes the view that ameliorative judicial award or statutory commutation by the executive should not devalue the sterness of the....
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....ch convicts are out of its coils their cases must be considered under the Remission Schemes and 'Shortsentencing' laws. The second plea, revolves round 'pardon jurisprudence', if we may coarsely call it that way, enshrined impregnably in Arts. 72 and 161 and the effect of s. 433A thereon. The power to remit is a constitutional power and any legislation must fail which seeks to curtail its scope and emasculate its mechanics. Thirdly, the exercise of this plenary power cannot be left to the fancy frolic or frown of Government, State or Central, but must embrace reason, relevance and reformation, as all public power in a republic must. On this basis; we will have to scrutinise and screen the survival value of the various Remission Schemes and short-sentencing projects, not to test their supremacy over s. 433A, but to train the wide and beneficient power to remit life sentences without the hardship of fourteen fettered years. 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 ar....
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....nical. 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 are weighed in the scales of grammar nicely enough in this Section and, therefore, over-stress on the present tense and the present-perfect tense may not be a clear indicator. The general rule bearing on ordinary penal statutes in their construction must govern this case. In another situation, interpreting the import of "has been sentenced" this court held that "the language of the clause is neutral" regarding prospectivity. It inevitably follows that every person who has been convicted by the sentencing court before December 18, 1978, shall be entitled to the benefits accruing to him from the Remission Scheme or short-sentencing project as if s. 433A did not stand in his way. The Section uses the word 'conviction' of a person and, in the context, it must mean 'conviction' by the sentencing court; for that first quantified his deprivation of personal liberty. We are mindful of one anomaly and must provide for its elimin....
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....the sovereign, acting through the Home Secretary, exercises the prerogative of mercy. While the content of the power is the same even under our Constitution, its source and strength and, therefore, its functional features and accountability are different. We will examine this aspect a little later. Suffice it to say that Arts. 72 and 161 are traceable to s. 295 of the Government of India Act, 1935. The Central Law Commission has made certain observations based on Rabha's case to the effect that the effect of granting pardon is not to interfere with the judicial sentence but to truncate its execution. There is no dispute regarding this branch of pardon jurisprudence. What is urged is that by the introduction of s. 433A, s. 432 is granted a permanent holiday for certain classes of lifers and s. 433(a) suffers eclipse. Since ss. 432 and 433(a) are a statutory expression and modus operandi of the constitutional power, s. 433A is ineffective because it detracts from the operation of s. 432 and 433(a) which are the legislative surrogates, as it were, of the pardon power under the Constitution. We are unconvinced be, the submissions of counsel in this behalf. It is apparent that superf....
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....choice. It is fundamental to the Westminster system that the Cabinet rules and the Queen reigns. Being too deeply rooted as foundational to our system no serious encounter was met from the learned Solicitor General whose sure grasp of fundamentals did not permit him to controvert the proposition, that the President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers save in a narrow area of power. The subject is now beyond controversy, this court having authoritatively laid down the law in Shamsher Singh's case. So, we agree, even without reference to Art, 367 and ss. 3(8)(b) and 3(60)(b) of the General Clauses Act, 1897, that, in the matter of exercise of the powers under Arts. 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice of the ministers. Article 74, after the 42nd Amendment silences speculation and obligates compliance. The Governor vis a vis his Cabinet is no higher than the President save in a narrow area which does not include Art. 161. The Constitutional conc....
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....natory; it must not be guided by any extraneous or irrelevant considerations, because that would be denial of equality. The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law." Mathew, J. In V. Punnan Thomas v. State of Kerala observed: "The Government, is not and should not be as free as an individual in selecting the recipients for its largesse. Whatever its activity the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal. If we excerpt again from the Airport 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....
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.... 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 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 M....
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....d 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 wil....
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....on 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 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 fin....
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.... which seem to us to be fairly reasonable. After all, the Government cannot meticulously study each prisoner and the present praxis of marks, until a more advanced and expertly advised scheme is evolved, may work. Section 433A cannot forbid this method because it is immunised by Art. 161. We strongly suggest that, without break, the same rules and schemes of remission be continued as a transmigration of soul into Art. 161, as it were, and benefits extended to all who fall within their benign orbit-save, of course, in special cases which may require other relevant considerations. The wide power of executive clemency cannot be bound down even by self-created rules. One point remains to be clarified. The U.P. Prisoners' Release on Probation Act. 1938, a welcome measure, what with population pressure on prisons and burden on the public exchequer, will survive s. 433A for two reasons. Firstly, Government may resort to the statutory scheme, not qua law but as guideline. Secondly, and more importantly, the expression 'prison' and 'imprisonment' must receive a wider connotation and include any place notified as such for detention purposes. 'Stone walls and iron bars do not a prison make....
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....61 of the Constitution but release will follow, in life sentence cases, only on Government making an order en masse or individually, in that behalf. 4. We hold that s. 432 and s. 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power, and s. 433A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like. 5. We negate the plea that s. 433A contravenes Article 20(1) of the Constitution. 6. We follow Godse's case (supra) to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government. 7. We declare that s. 433A, in both its limbs (i.e. 'both types of life imprisonment specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years' actual imprisonment will not operate against those whose cases were decided by the trial court before the 18th December, 1978 (directly or retroactively, as explained in the judgment) when....
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....ctive as legislatively sanctioned imprisonment of a loose and liberal type and such licensed enlargement will be reckoned for the purpose of the 14-year duration. Similar other statutes and rules will enjoy similar efficacy. 12. In our view, penal humanitarianism and rehabilitative desideratum warrant liberal paroles, subject to security safeguards, and other humanizing strategies for inmates so that the dignity and worth of the human person are not desecrated by making mass jails anthropoid zoos. Human rights awareness must infuse institutional reform and search for alternatives. 13. We have declared the law all right, but law-inaction fulfils itself not by declaration alone and needs the wings of communication to the target community. So, the further direction goes from this court that the last decretal part is translated and kept prominently in each ward and the whole judgment, in the language of the State, made available to the inmates in the jail library. 14. Section 433A does not forbid parole or other release within the 14-year span. So to interpret the Section as to intensify inner tension and taboo intermissions of freedom is to do violence to language and liberty....
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....e linked up with the distress of the dependants. We dismiss the Writ Petition vis a vis the challenge to s. 433A but allow them to the extent above indicated. The war is not lost even if a battle be lost. Justice must win. The authorities concerned will carefully implement The directives given in this judgment. Since personal liberty is at stake urgent action is the desideratum. FAZAL ALI, J.-While I concur with the judgment proposed by Brother Krishna Iyer, J., I would like to express my own views on certain important features of the case and on the nature and character of the reformative aspect of penology as adumbrated by Brother Krishna Iyer, J. The dominant purpose and the avowed object of the legislature in introducing s. 433A in the Code of Criminal Procedure unmistakably seems to be to secure a deterrent punishment for heinous offences committed in a dastardly, brutal or cruel fashion or offences committed against the defence or security of the country. It is true that there appears to be a modern trend of giving punishment a colour of reformation so that stress may be laid on the reformation of the criminal rather than his confinement in jail which is an ideal obj....
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....e 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, (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 longterm 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....
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.... Similarly, the same author in Vol. II of his book 'Crime and Justice' observes as follows:- "the solution to which most recent efforts have come is that the legislative function is best discharged by the creation of a small number of distinct sentencing categories .. And it can also serve to emphasize the futility of close line-drawing in an area where precision-to the extent that it can be achieved at all must come from the efforts of those in a position to know and to judge the particular offender." (p. 332) The existence of a distinct number of sentencing categories and a list of the offences within each should be of great aid in other words, in assuring consistency of treatment for present offences and in determining the appropriate sentence levels for NEW offences." (p. 340) This is exactly what s. 433A of the Code of Criminal Procedure seeks to achieve by carving out a small and special field within which alone the statutory provisions operate. While I agree that the deterrent form of punishment may not be a most suitable or ideal form of punishment yet the fact remains that the deterrent punishment prevents occurrence of offences by- (i) m....
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.... popular area at present, practical moves to reform should be based soundly on the historical precedents of criminal law and not on grand schemes that will sweep all of what we have out the door. There have been many examples of grand schemes that looked great on paper, but by the time they had been trans formed into legislation were utterly unrecognizable. It seems to follow from this that sentencing reform should not be achieved by new legislation, but by a close analysis and extrapolation from the already existing practice and theory of criminal law:" Having regard to these circumstances I am clearly of the opinion that s. 433A is actually a social piece of legislation which by one stroke seeks to prevent dangerous criminals from repeating offences and on the other protects the society from harm and distress caused to innocent persons. Taking into account the modern trends in penology there are very rare cases where the courts impose a sentence of death and even if in some cases where such sentences are given, by the time the case reaches this Court, a bare minimum of the cases are left where death sentences are upheld. Such cases are only those in which imposition of a de....
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....erson completely of his liberty for ever and has endangered the liberty of his family has no right to ask the court to uphold his liberty. Liberty is not a one-sided concept, nor does Art. 21 of the Constitution contemplate such a concept. If a person commits a criminal offence and punishment has been given to him by a procedure established by law which is free and fair and where the accused has been fully heard, no question of violation of Art. 21 arises when the question of punishment is being considered. Even so, the provisions of the Code of Criminal Procedure of 1973 do provide an opportunity to the offender, after his guilt is proved, to show circumstances under which an appropriate sentence could be imposed on him. These guarantees sufficiently comply with the provisions of Art. 21. Thus, it seems to me that while considering the problem of penology we should not overlook the plight of victimology And the sufferings of the people who die, suffer or are maimed at the hands of criminals. For these reasons, I am clearly of the opinion that in cases where s. 433A applies, no question of reduction of sentence arises at all unless the President of India or the Governor choose t....
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.... dismiss the petitions with the modification that s. 433A would apply only prospectively as pointed out by Brother Krishna Iyer, J. KOSHAL, J.-On a perusal of the judgment prepared by my learned brother, Krishna Iyer, J., I agree respectfully with findings (2) to (11), (13) and (14) enumerated by him in is concluding part as, also with the first sentence occurring in finding (1), but regret that I am unable to endorse all the views expressed by him on the reformative aspect of penology, especially those forming the basis of finding (1) minus the first sentence and of finding (12). In relation to those views, while concurring generally with the note prepared by my learned brother, Fazal Ali, J., I am appending a very short note of my own. 2. That the four main objects which punishment of an offender by the State is intended to achieve are deterrence, prevention, retribution and reformation is well recognised and does not appear to be 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, make....
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....e 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 ref....