MARU RAM ETC. ETC. v. UNION OF INDIA & ANR

Citation: [1981] 1 S.C.R. 1196

Court: Supreme Court of India

Bench: Y.V. CHANDRACHUD, P.N. BHAGWATI, V.R. KRISHNA IYER, S. MURTAZA FAZAL ALI, A.D. KOSHAL

Case summary

This limited prescription as a proviso tr, the earlier prescription relates to execution of sentence, not conditions in pris. Dismissing the writ petitions but partly allowing, the Court HELD: By Iyer, J.

Judgment text

1. 196 MARU RAM ETC. ETC. v. UNION OF INDIA & ANR. November 11, 1980 [Y. v. CHANDRACHUD, C. J. , P. N. BHAGWATI, v. R. KRISHNA IYER, . S. MURTAZA FAZALALI AND A. D. KOSHAL, JJ. J Prison-Prisoner Le? islatio11 vis-a-vis-Code of Criminal Procedure Code, 1973 (Act ll of 1974)-Section 433A. as introduced with effect from 18th J)ecember, 1978, prescribing a minimum of 14 years' of actual imprisonment for the two types of lifers, vires of--Pardon J11rispmde11ce-EfJects of Sectil1~ 433A 011 Articles 72 and 161-Whetlltr section 433A riolates Article 14 being wh in the jail library. [1250 B-CJ. 14. Section 433A does not forbid parole or other release within the 14-year '5pan. 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-0] [1981] 1 S. C. R.. 15. Parliament has the legislative competency to enact foe providons in section 433A of Criminal Procedure Code.

[1214 F] It is trite law that the Lists in the Seventh Schedule broadlv delineate the· rubrics of legislation and must be interpreted liberally. Articie 246(2) gives power to Parliament to make laws with respect to any of the matters ennmerated in List III. Entries I and 2 in List ill (especially Entry 2) are abundantly comprehensive to cover legislation such as is contained in section 433A, which merely enacts a rider, as it were, to ss. 432 and 433(a). A legislation on the topic of "Prisons and Prisom,rs" cannot be read into section 433A. On the other hand, section 433A sets a lower limit to the execution nf punishment provided by the Penal Code and is appropriately placed in the Chapter on "Exe-· cution and Sentences" in the Procedure Code.

Once the irr~futable positi,,n 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 IIr a~ a cognate provision integral to remh;sion and commutation, as it sets limits to the power conferred by ss. 432 and 433. This limited prescription as a proviso tr, the earlier prescription relates to execution of sentence, not conditions in pris. m 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. [1214 B-F] 15.

(i) The power of the State to enact the Jaws of rem1ss1~ns and shortsentencing under Entry 4 of List II is, subject to Articles 246(1) and (2) and so parliamentary legislation prevails over State legislation. Moreover, Article · 254 resolves the conflict in favour of parliamentary legislati:Jn. If a State mtends to legislate under Entry 2 of List III such law can prevail in tha! State as against a parliamentary legislation only if Presidential assent has· been obtained in terms of Article 254(2). In the present case, section 433A mmt hold its sway over any State legislation even regarding "prisons and pr;soners", if its provisions are repugnant to tbe 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 (ss. 432, 433 and 433A), read os a p1ckage, makes it clear that while the Code does confer wide powers of remission and' commutation of sentences, it er. 1phatically intends to carve out an extreme cate· gory from the broad generosity of such executive power. 'fhe non '>bstante clause, in terms, excludes section 432 and the whole mandate of the rest of the Section necessarily subjects the operation of section 433(a) to a serious restric· tion. This embargo directs that commutation in such cases shall not reduce the actual duration of imprisonment below 14 years. · Section 431. A 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 orerativ. e. part of section 433A. [1216 B·C] MARU RAM V. UNION OF INDIA 1199' It.

is elementary that a non obstante tail should not wag a statutory dog. A non obstimte clause cannot whittle down the wide import of the principal part. The enacting part is clear and the non obstante clause cannot cut down its scope. [1217 A-BJ Aswini Kumar Ghose and Another v. Aravinda Bose & Another, [1953] S. C. R. 1. , followed. . To read down section 433A to give overriding effect to the Remission Rules of the State would render the purposeful exercise a ludicrous futility. If "Laws suffer from the disease of Language'', courts must cure the patient, not kill him. · "Notwithstanding the "notwithstanding...... " in section 433A, the Remission Rules and like provisions stand excluded so far as "lifers" punished for capital offences are concerned. [1217 D-E] \,__ 17. Sentencing is a judicial function but the execution of the sentenc~. after th~ ci;~tts.

pronouncement, is ordinarily a matter for the Executive under the Procedure Code, going by Entry 2 in List III of the Seventh Scheduk. Once a sentence has been imposed, the only way to terminate it before the stipulated term is by action under ss. 432/433 of the Code or Articles 72/161. And if the latter power under the Constitution is not invoked, the only source of salvatiqn is the play of power under ss. 432 and 433(a) so far as a 'lifer' is concerned. No. release by reduction or remission of sentence is possible under the corpns 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 0nly with Prisons and Prisoners, never with truncation of judicial sentences. Remissions by way of reward or otherwise cannot cut down the sentence as such and cannot grant final exit passport for the prisoner except by Government action under section 432(1).

The topic of Prisons and Prisoners does not cover release by way of reduction of the sentence itself. That belongs to Criminal Procedure in Entry 2 of List III although when the sentence. ·is for a fixed term and remissjon plus the period undergone equal that term the prisoner may win his freedom. Any amount of remission to result in manumission requires action under sec· tion 432(1), read with the Remission Rules. That is why Parliament, tracing the single source of remission of sentence to Section 432, blocked it by t':te 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, section 433A y achieves what it wants-arrest the release of certain classes 0f "lifers" before a certain period, by blocking of section 432.

[1217 G-H, 1218 A-El 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 Crimir. al Procedure Code, 1898 (corresponding to s. 432 of the 1973 Code) by the appro· priate Government or on a clemency order in exercise of power under Article 72 or 161 of the Constitution. [1218 F-G. 1219H, 1220A, E-FJ Saraf Chandra Rabha and Ors. v. Khagendranath Nath & Ors.

, [1 Q(l] 2 S. C. R. 133; Gopal Vinayak Godse v. State of Maharashtra & Ors. , [1961] 3 S. C. R. 440, referred to. 1200 SUPRE:\1E COURT REPORTS [1981] 1 S. C. R. 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 an· special. laws but section 433A is a specific, explicit, definite provision dealing with a particular situation or narrow class of cases, as distinguished from the general run of cases covered by section 432 Crl. P. C. Section 433A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicitly to a particularised treatment.

Therefore, section 433A applies in preference to any special or local law because section 5 expressly declares that specific provisions, if any, to the contrary will prevail over any special or . local law. [1225 G-H, 1226 A·C] Hakim Khuda Yar v. Emperor, A. I. R. 1940 Lah. 129; Baldeo & Ors. v. ,c Emperor, A. I. R. 1940 All. 263, approved. ' Bikram Sardar & Ors. v. Emperor, A. I. R. 1941 Born. 146, dissented from. In Re Net Book Agreement, 1951 [1962] 3 All E. R. QBD 751, quoted with· approval. 19. It is trite law that civilised criminal jurisprudence interdicts retroactive impost of heavier suffering by a later law. Ordinarily, a criminal legislation must be so interpreted as to speak futuristically. While there is no vested right.

for any convict who has received a judicial sentence to contend that the penalty should be softened and that the law which compels the penalty to be carried out in full cannot apply to him, it is the function of the court to adopt ~ liberal construction when dealing with a criminal statute in the ordimry course of things. This humanely inspir e Gov· ernor 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 Governmnet. [1239 C-H, 1240 A-Bl Shamsher Singh & Anr, v. State of Punjab. [1975] 1 S. C. R. 814, applied. 22.

Victimology, a burgeoning branch of humane criminal justice, must find fulfilment, 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 se11tinel on the qui ~ive, from defending fundamental rights against legislative aggression, if any flagrant excess were clearly made out. [1211 F-GJ 2. Courts cannot abdicate constitutional obligations even if Parliament be pachydermic and politicians indifferent, with great respect, ordinarily th~y ~re not.

Indeed, Judges must go further, 011 account of their accountabilitv to the Constitution and the country and clarify that where constitutional liberties are imperilled judges cannot be non-aligned. But where counterfeit constitutional -H . claims are pressed with forensic fervour courts do not readily oblige by con· · senting to be stampeded. Justice is made· of sterner stuff, though its core is -lik:o "the gentle rain from heaven" being interlaced with mercy. [1213 F-H] Per Fazal Ali, J. (Concurring)- !. 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-C] ~ 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. [1251 E-F] Section 433A has advisedly been enacted to apply to a very smali 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 proporticn 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 again, (ii) by deterring not only the offenders but also others from committing offences, and (iii) punishment or for that matter a punishment in the form of a long-term imprisonment may be a means to changing a person's character or personality so that out of some motivation or reasons of a personal or general nature, the offender might obey the law.

[1254 G-H, 1255 Al 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 impiisonment of fourteen y•;ars which may in fact act as a sufficient dNerrent which may prevent criminah from committing offences.. [1256 ErF] 4. No dciubt, 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 punis\lment 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, ;G 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 committ~d by ·the criminals is a factor which seems to have been completely overlooked while defending the cause of the criminals for abolishing deterrent sentences. [1256 H, 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. l. iberty is not a one-sided concept, nor does Article 21 of the Constitution contemplate such a concept. If a person commits MARU RAM V. UNION OF INDIA 1203 oJl cnmmal offence and punishment has been given to him by a procedure est'.

lblished by law which is free and fair and where the accused has been fully beard, 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 provfoions 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. [1257 C-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 charac- ·ter of punishment in respect of offences contemplated hy. it, for the time being in view of the prevailing conditions in our country. It is well settled that the Jegislature understands the needs and requirements of its people much better ·than the courts because the; Parliament consists of the elected Tepresentatives of . ·the people and if the Parliament decides to enact a legislation for the benefit of the people, such a legislation must be meaningfully constmed and given effect to so as to subserve the purpose for which it is meant. [1257 G-H, 1258 A-8] 8. There is no real inconsistency between section 433A and Articles 72 and I 61 of the Constitution of India.

[1258 El Doubtless, the President of India under Article 72 and the State Governoment under· Article 161' have absolute and unfettered powers to grant pardon, reprieves, rem1ss10ns, 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 sponsor- •ed by the Central Government itself. It is, therefore, manifest that while exer- . cising 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 i> 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 oaspects of the matter. [1258 B-DJ Per Koshal, J. (Generally concurring) 1. The contention that the main object of every punishment must be reformation o~ the offender and that the othe. r 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 reformation. 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 fores,eeable future; (ii) . The ·question as to which of the various objects of punishment should be the basis of a penal provision has, in ttw very nature of things, to be left to the Legisla· ti.

ire and it is not for the comts to say which of them shall be given priority, preponderence or predominance. 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 5ituation. 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 •. 1f 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 out~ide the scope of the inquiry undertaken by thi~ Court into the vircs 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 o1 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 whi~h it is awarded. This is strongly indicative of reformation not being the fo:iremost object sought to . be achieved by the penal provisions adopted by the legisla· ture. 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 othcrn 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 in•o better ways of life from the social point of view over a loog perioJ. and th~ death penalty, the vires of which has been recently upheld by a majority of four in a five Judges Bench of this Court in Bachan Singh and others v. State of Punjab and others.. [1980] 2 sec 684, would have to be exterminated from Indian criminal law. The argument based on the object of reformation having to be in the forefront of the legislative purposes behind punishment is, therefore, fallacious. [1259 B-D, G-H, 1260 A·H, 126! A] 2. The contents of section 433A of the Code of Criminal Procedure (or, for that matter any other pe:nal provision) cannot be attacked --· operation of s.

432 only and thereby implicitly sanctioned the operational survival of Remission Rules made by the various States. This argument hardly appeals to reason because it fails to square with the command of the substantive text and virtually stultifies the i:mperative part of the Section. - In the province of interpretation, industry and dexterity of counsel can support any. meaning, what with lexical plurality, caselaw prodigality and profusion of canons to support any posi:tion. 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 i:mportant to emphasize the obvious than to elucidate the obscure. " Another sage counsel is Frankfurter's three-fold 1 . advice :( ) : ~ (! ) H. Friendly, Bonchmarks 202_ (1967). (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 commutation 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 commutation in such cases shall not reduce the actual duration of imprisonment below 14 years. Whether that Section suffers from any fatal consti~utional infirmity is another matter but it does declare emphatically an imperative intent to keep imprisoned for at least 14 years those who fall wrthin the sinister categories spelt out in the operative part of s. 433A.

The argument is that the non obstante clause covers only s. 432 and significantly omits the common phraseology 'or any other law in force' and, therefore, all other provisions of law which reduce or remit the length of the incarceration prevail over s. 433A. In particular, the Prison Rules and local short-sentencing laws will diminish the length of prison tenancy of all the lifers, despite the command of s. 433A. Why? Because the non obstante clause is limited in nature and excludes only s. 432. The Prisons Act, 1894, is 'existing Jaw' saved by Art. 366(10) and Art. 372(1). Section 59 of that Act vests rule-making power in States. Specifically s. 59 ( 5) refers to rules regulating "the award of marks and the shortening of sentences". Clearly, therefore, the States have the power to make rules on Remrssion 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 wrth and become repugnant to. a Central law like the Procedure Code. If s. 433A, by sheer repugnancy, forces a permanent holiday on the prison remission laws of the States vis a vis certain classes of 'lifers', the former must prevail in situations of irreconcilability. Assuming that Rules under the Prisons Act are valid and cannot be dismissed as State law, a harmonious reading of s. 433A and the Prison Rules must be the way out. Otherwise, the later law must prevail or implied repeal may be inferred. We may not be MARU RAM v. UNION OF INDIA (Krishna Iyer, !. ) 1217 compelled to explore these ramifications here since the Remission Rules can peacefully co-exi'St with s~ 433A once we grasp the ratio 1 2 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). Thi& court has 3 held, way back in 1952 in Aswini Kumar Ghose( ) that a non obstante clause cannot whittle down the wide import of the principal part. ·).. _ ~ ! he enacting part is clear the non obstante clause cannot cut down. its scope. · The learned Solicitor General reinforced the conclusion by pointing out that the whole exercise of s. 433A, as the notes on clauses revealed, was aimed at excluding the impact of Prison Remissions which led to unduly early release of graver 'lifers'. Parliament knew the 'vice', had before it the State Remission Systems and· sought to nullify t'heir effect in a certain class of cases by use of mandatory language. To read down s. 433A to give overriding effect to the Remission RIJles of the State would render the purposeful exercise a 4 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 argu- . ment 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 eirecution of the sentence, after the _courts pronouncement, is ordinarily a matter for the Executive under the Procedure Code, going by Entry 2 in List III of the Seventh Schedule. Keeping aside the constitutional powers under Arts.

72 and 161 which are 'untouchable' and 'unapproachable' (I) [1961] 3 SCR 440 Gopal Vinayak Godse v. State of Maharashtra & Ors. (2) [1961] 2 SCR 133 Saratchandra Rabha & Ors. v. Khaqendranath Nath & Ors. (3) Aswini Kumar Ghosh and Anr. v. Arabinda Bose & Anr. , [1953] SCR I. (4) Reed Dickerson, The Interpretation and ·Application of Statutes P. 13. 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 t'he stipulated term is by action under ss. 432/433 or Arts. 72/161. And if the latter power under the Constitution is not invoked, the only source of salvation is the play of power under ss. 432 and 433(a) so far as a 'lifer' is concerned. No release by reduction or remission of sentence is possible under the corpus juris as it stands, in ariy other way.

The iegislative power of the State under Entry 4 of List II, even if it be stretched to snaping 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- &tood, grant final exit passport for the prisoner except by Government action under s. 432(1). The topic of Prisons and Prisoners does not cover rekase by way of reduction of the sentence itself. That belongs to Criminal Procedure in Entry 2 of List. III although when the sentence is for a fixed term and remission plus the period undergone equal that term the prisoner may win his freedom. Any amount of remission to result in manumission requires action under s. 432(1), read with the Remission Rules. That is why Parliament, tracing the single source of remission of sentence to s. 432, blocked it by the non-obstante clause.

No remission, however long, can set the prisoner free at the instance of the State, before the judicial sentence has run out, save by action under the constitutional power or under s. 432. So read, the inference is inevitable, even if the contrary argument be ingenious, that s. 433A achieves what it wants - arrest the release of certain classes of 'lifers' before a certain period, by blocking s. 432. Arts. 72 and 161 are, of course, excluded from this discussion as' being beyond any legislative power to curb or confine. We are loathe, to loading this judgment with citations but limit it to two leading authorities in this part of the case. Two Jundamental 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 i11 the shape of remitting, commuting or otherwise abbreviating, the Executive cannot alter the sentence itself.

In Rablw's case(1), a Constitution Bench of this Court illumined this branch of law. What is the jural consequence of a remission of sentence? (1) [1961] 2 SCR 133 at 137-138. MARU RAM v. UNION OF INDIA (Krishna Iyer, J. ) 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 beeii ordered to be remitted. An order of remission thus does not in any way interfere with the order of the collrt; 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 revrsional court. This distinction is well brought out in · the 0 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 t'he judgment but does not al'ter it qua judgment. " Though, therefore, the effect of an order of remission is to wipe out that pact 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 undergon~, 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 9I its direct and side-effects except to the extent of entitling the prisoner to pr-emature 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 1 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 oo some fiction of quantification of a sentence of uncertain duration. Godse was sentenc:ed to imprisonment for life.

He had earned considerable remissions which would have rendered him eligible for release bad life sentence been equated with 20 years ol' imprisonment a la s. 55 l. 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 hnprisonment 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 biecause of long accumulation of remissions. Releasl:'. would follow only upon an order under s. 401 of the Criminal Procedure Code, 1898 (corresponding to s.

432 of the 1973 Code) by the appropriate Government or on a clemency order in exercise of power under Arts. 72 or 161 of the Constitution. Godse (supra) is authority for the proposition that a sentence of imprisonment for life is one of "imprisonment for the whole of the remaining period of the convicted person's natural life". The legal position has been set out in the context of remissions 2 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 Prisons Act enable such a prisoner to earn remissions - ordinary, specfal and State (I) [1961} 3 SCR 440. , (2) [1%1) 3 SCR 440 at p. 447. :MARU RAM :v. ;UNION roF:INDIA (Krishna Iyer, !. ) H2'1 -'-- and the'. said ·remissions ·will :be :given credit !

towards 'his term of ·imprisonment. :For •the ,purpose ·of working . out the remis- :sions ,the .. sentence of ,transportation for :life is ordinarily equated with a . definite :period, . but it . is . only for that . particular purpose and ,not for any other purpose. As . the sentence. of transportation for life ,or its prison ,equivalent, the . life :imprisoruiient, is one of B indefinite ·duration, ·the remissions . so earned do not in practice J1e1p such a convict as it is not possible to "predicate t. he 'timt of hrs death. That is why the rules provide for a procedure to enable ·the ·appropriate Government to Temit the . sentence under s. . 401 of •the Code of Criminal Procedure on a consideration of •the relev~t factors, ·including the period of remissions earned. c The question of remission is exclusively within the province of the appropriate . Government; and in this case it is admitted that, 'though the appropriate . Government made certain remissions under ·s. 401 .

of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has "-· not yet acquired any right to release. In Godse's case, Subha Rao, J. , also . drew the conceptual lines of 'remission', 'sentence' and 'lifecsentence'. 'Remission' limited :in time, helps computation . but . does not ipso jure operate ,as . release . of ·foe prisoner. . But when . the $entence . 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 factilm and quan- ,tum ot' ·the :sentence in tact. That is the ratio of Rabha (supra). •Here, again, jf 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 rs· that since ins. 433A we deal only with life ·sentences, remissions . lead nowhere and cannot entitle a . prisoner . to . release.

In this view, the Temission 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. '. G Thenext'submission 'urged to show thats. 433A: is bad is based on Art. 20(1) ·of Neither argument has force. The first one fails because s. 302 I. P. C. (or other like offence) fixes the sentence to be life imprisonment. 14 Years' duration is never heavier than life term. The second submission fails because a remission, in the case of' life imprisonment, ripens into a reduction of sentence of the entire balance only whim a final release order is made. Gods~ (supra) is too emphatic and unminc! ng to admit' of a different conclusion. The ib.

aunting distance of death which is the terminus ad quern of life . imprisonment makes deduction based on remission indefinite enough not to fix the elate with certitude. Thus, even if remissions are given full faith and credit, the date of release may not come to pass1 unless all the unexpired, uncertain balance is remitted by ,a Government order under s. 432. If this is not done, the prisoner will continue in custody. We assume here that the constitutional power is kept sheathed. :E Let us assume for the sake of argument that remissions have been earned by the prisoner. In Murphy v. Commonwealth, 172 Mass. 264, referred to by Cooley and cited ·before us (infra), it has been held that earned remissions may not be taken away by subsequent legislation. Maybe, direct effect of such a privative measure 'F may well cast a heavier penalty. We need not investigate this position here. A possible confusion creeps into this discussion by equating life imprisonment with 20 years imprisonment.

Reliance is placed for this purpose on s. 55 IPC and on definitions in variqus Remission Schemes. All that we need say, as clearly pointed out in Godse, is that these equivalents are meant for the limited objective of computa~ tion 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 ; ~ : MARU RAM v. UNION OF INDIA (Krishna Iyer, J. ) 1223 vests no right to release when the sentence is life imprisonment. No ~eater punishment is inflicted by s. 433A than the law annexed <>riginally 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 Pra- . desh v. Ratan Singh & Ors. [1976] Supp. SCR 552. Maybe, a difference may exist in cases of fixed term sentences. 1 . 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 plausi- ;bility, is that s. 5 of the Procedure Code saves all remissions, shortsentencing schemes as special and local laws and, therefore, they must . prevail over the Code including s. 433A. Section 5 runs thus': 5.

Nothing ~ontained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the trme 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, t! he 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 ther~ is a specific provision to the contrary, then that will over-ride the special or local law. Is s. 433A a specific law contra?

If so, that will be the last word and will hold even against the special or local law. Three rulings were cited by the learned Solicitor General to make out that s. 433A is a specific law. A Bombay case in AIR 2 1941 Born. 146( ), he frankly stated, takes a contrary but scrappy view. The Judicial Committee in Pakala Narayana Swamy v. The 3 'King Emperor( ) inconclusively considered what is a specific Jaw, fo a similar setting. Two later cases of Lahore [a full bench of five (1) Cooley's Constitutional Limitations, Vol. I, 8th Edn. p. 544. (2) Biram Sardar & Ors. v. 'Emperor, AIR 1941 Born. 146. {3) 1939 IA 66. SUPREME COURT 'REPOR'l'S {1981] 1 S. C. R~ 1 2 'jil'dgese''] ! 'an'o 0£ Allah'ablid '[a ·bench of three :judges( )] discussed 'alinost an 'identfoal Hi's\. Je and held that some provisions of the Proce- 1dii! e;Cciae'-were '·spedfic 'sections to :the· contrary and would repeal· any ''Special 'law on the subjeet.

Section 1(2) of the Criminal Procedure Code, 1898, is the ·pre- I" vious incarnation cf s. 5 of the Present Code and contains virtually the same phraseology. The expression 'specific provision to the contrary' 'in the Code of 1898 'was cc:insfdefod in the two ·Full Bench Decisions (supra). The setting in which the issue 'was raised \Vas precisely similar and the ·meaning of 'specific provision to the con- •trary' was ·considered :by Young, C. J. in the Lahore case where the 3 -c learned Judge observed : ( ) 'The ·word 'specillc' is defined in Murray's Oxford Dictionary ·as 'precise or exact in respect of fulfilment, conditions or terms; definite,·explicit'. In a similar situation, the same words fell for decision in the Allah'abad case where Braund, J. , drscussed the me:aning·of 'specific 4 lprovision' in 'greater detail and observed : ( ) ·1 ·have, I confess, enter. tained soine doubt as to what exactly the words 'specific provisians' mean.

I think first, that they must denou~ something different from the words 'express provision'. For a provision of a statute to be an 'express' provision affectmg 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 'r portion of it and also to the effect intended to be produced c:iil ·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 provisi. cin whrch '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 Dictronary, is 'to mention, speak of or name (something) definirely 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 provisron' really mean therefore is that the particular (1) Hakim Khuda Yar v. Emperor, AIR 1940 Lah. 129. 'fl (2) Baldeo & Ors. v. · Emperor, AIR 1940' All; 263. (3) A~R 1940 Lah. 129 at p. 133. (4) AIR 1940 All. 263 at 269. MARU RAM v. UNION OF INDIA (Krishna Iyer, J. ) . 12. 2 5 provision of th, Criminal Procedure Code must, in order to A. 'affect' the 'sp ( 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 cdmes and criminals so relevant to punishment in our age of penological enlightenment and subjects them equally to a terrible term of 14 years in jail as a mandatory minimum. Treating unequals equally is anathema for Art. 14.

Secondly, the Section inflicts, with anti-reformative inhumanity and Procrustean cruelty, a prolonged minimum of 14 years' servitude on every life arbitrarily disregarding the audit report on progressive healing registered by some as against others. The capricious insistence on continued d1 -------- The mood and temper of our Constitution certify that arbitrary cruelty to the prisoner and negative attitude to reformation of the individual 2 are obnoxious. Even the recent ruling in Bachan Single( ) on the vires of death penalty upholds this high stance. · Basic to the submissions of counsel for the petitioners is the humane_ assumption that the object of sentencing is not deterrent torture simpliciter but mainly the rehabilitation of the prisoner. Human dignity, emphasised in the Preamble, compassion, implicit in the prescription of fair procedure in Art. 21, and the irrationality of arbitrary incarceratory brutality vi:olative of Art.

14 invest the demand for a reformatory component in jail regimen with the status of a constitutional requirement. We need not pro. long the judgment by substantiation of this proposition because the learned Solicitor General, with . sweet reasonableness and due ·regard to the precedents of ilhis court, has not displtted that reform of the prisoner is one of the major purpose of punishment. ' The sequiter is irresistible. Any provision that wholly or sub- F stantially 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 count,er-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 ':' :'(l)'Sentencing and Probation-Published by National College of the Stat¢ P Judiciary, Reno, Nevada, USA, p, 68. (2) Bachan Singh v. State of Punjab (1980] 2 SCC 684. 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, bad and indifferent, to serve !! fixed and. arbitrary minim. um it is an angry flat untouched by the proven criteril), Qf re;-. form. Surely, an avant garde penologist or T. M. oriented jurist wou. kJ. BJ . regard enlightem:d sentencing as. abbreviated life behind bats coupled with rehabilitatory exposure i·nside and outside. May be,. he may even criticise the draconian duration, blindly ru. oning beyond 14 y.

ears, as penological illiteracy. Criminologists concentrate on the. activisation of the creative intelligence of the culprit hy various procedures and by his release from jail at a cut-of! ' point when the jural-neutral 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 i! incarnates as legislation, cannot meet the social science content of Arts. 14 and 21 which are part of the suprema lex. While the light of this logic is not lost on us and the non-institu•.

E tional altemativ1:s to prison as the healing hope of humane habilita.. tion are worthy of· exploration, we are in the province of constitu.. · tionality where the criteria are different. We have no doubt that reform of the prisoner, as a social defencl} strategy, is high on the agenda of Indian penal policy reform. The -1··· question is whether a 14-year term as a mandatory minimum, is SQ extremist and arbitrary as to become unconstitutional, even assuming the rehabilitatory recipe to be on our penologicaLphannacopea, Wr. cannot go that far as judges, whatever our personal dispositions may incline us were we legislators. c: Two broad grounds to negative this extreme position 5trike us, Deterrence, as one' valid punitive component has been a. ccepted in 1 Sunil Batra( ) by a five-judge bench (see Desai J. supra). So, a, measure of minimum incarceration of 14 years for the gravest cla. Ss of crimes like murder cannot be considered shocking, having .

regard to the escalation of norrendous crime in the country and the 1. 1act that this court has upheld even death penalty Oi. mited thougb to. 'the (I) Sunil Bam1 v. Delhi AdministrationJ19,78] 4 . SC,:. C 494· at S79, ·• (', . MARU RAM v. UNION OF. INDIA (Krishna Iyer, 1. ) 1233. rarest ·of rare cases'('). The time has not, perhaps, arriled to ex- . elude deterrence and ,c. -en public denunciation itltogether. Secondly, ;>even for correctional therapy, a long 'hospitalisation' in prison may !! Omctir:ies 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 '!

lf the lie; once a murderer always a murderer and, ther;fore, early release will spell a hell of manslaughter. Social ~dentists must accept Robert Ingersoll's tart remark : "In the hist:ory of the world, the man who is ahead has always been called a heretic". We, as Judges, hav~ no power to legislate but only to invigilate. In the current state of things and ethos of society we have to content ourselves wi! h th·~ 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 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 :c: 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 inore. material, research results and specialist reports, arc needed. How to assert who has . F become wholly habilitated and who not, unless you rely on the Reha- 2 'y-bilitation Index ? ( ) Currently, we have theories, and experiments awaiting social scientists' certificates of "certitude. For ins:ancc, deep relaxation recipes and meditational techniques, • researched with scientific tools, well-known and sophisticated experi- G ments, neurological and psychological, claim . to have achieved a breakthrough and has pnt across to the scientific world a Rehabilitation Index. This complex of 1ests, reference to which, culled from a publication titled "Criminology and Consciousness, Series I," (developed by the Maharshi European Research University according to 11 . (I) Bachan Singh v.

State of Punjab [1980! 2 SCC 684. • 0 (2) .. Freedom Behind Bars -Criminology and Consciousness, Serles I 1979, lt-fa. harild European Research University Press publicatioli P. 73. · SUPREME 'coURT REPORTS [1981] 1 S. C. R. J234 scientifically established standard measures of sucr,essful rehabilitation), as credentials enough to be t1aken cognisance of in some Indian Prisons. There are sceptics and scepticism is good because it 'is the chastity of' the intellect'. But to dogmatic disbelievers one may . only say with John Dewey : "Every great advance iJ? - science has issued from a new audacity of imagination". But court\;, when assaying constitutionality, have to wait till the Establishment accepts it in some measure. So, we are not now in a position to assert, as Court, that at least a 14-year term for a murderer is arbitrary, unusually cruel and unconstitutional. We hold against violation of Art. 14. Another argument based on Art.

14 may also be briefly dealt with, although we are not carried away by it. In terms, S. 433A applies only 1to two classes of life-imprisonment. The true content of the provision is that in the two specific categories specified in s. :433A the prisoner shall actually suffer the minimum jail tenure set in it. There are: around forty-one other offences, inc:luding attempt to murder, homicide not amounting to murder, grievous hurt, . dacoity and breach of trust, where life sentence is the maximum. But the u framers of 1the Penal Code have classified maximum sentences prin~i pally 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 1the maximum. The attack on its constitutionality 1 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 deatl1 the appropriate Government often by virtue of s. 433 (a) reduces the lethal rigour to life term. These classes of cases are categorised separately by s. 433A. When the crime is so serious as to invite death penalty as a possible sentence, Parliament, in its wisdom, takes the view that ameliorative judicial award or statutory commutation by the executive should not devalue the sterness of the sentence to be equated with the life sentence awarded for the obviously less serious clauses of offences where the law itself has fixed a :G 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 Sa! tisfied that the classification is based on an irrational differentia IH unrelated to the punitive end of social defence. Suffice it to say here, the classification, if due respect to Parliament's choice is given, O) [19201 2 sec ·684. '. MARU RAM v. ~ION OF-INDIA (Krishna Iyer, J. ) . cannot be castigated as a capricious enough to attract the lethal . ,consequence of Art. 13 read with Art. 14. Law and Life deal in . relatives, not absolutes. No material, apart from humane hunches, has been placed by counsel whose focus has been legal, no~ social . 'Seience-oriented, to show that prolonged jail life reaches a point of .. no return and is unreasonable. On the materials now before us, we -do not strike down s. 433A on the score of capricious, classification. ..

Some day, when human sciences have advanced far beyond and noninstitutional alternatives have fully developed, parliamentary faith in the fourteen-year therapy may well change or be challenged as unscien- ·:tific 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. 1 ;we rest content with Bertrand Russel's words of scepticism. ( ) The essebce 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 1 new evidence may at any moment lead ~o their abandonment. This is the way opinions are held in scienc:e, 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 :E 'prospectivity' (loosely so called) or otherwise of s. 433A. We have already held that Art. 20( 1) is not, violated but the present point is whether; on 'a correct construction~ those ·who have been convicted prior to thecoming into force of s.. 433A are bound by the mandatory limit. If such convicts are out of its coils their cases must be considered under the Remission Schemes and 'Short-sentencing' laws. The second pilea, revolves round 'pardon jurisprudence', if we may coar- ·. sely 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 llave 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. (I) Unpopular i£ssays: Philosophy and Politics. ... •JO ·1236 Now to the first point. I. t is trite law that civilised criminal jurisprudence int(:rdiots 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 Art. 20(1) which has. already been dealt with. What we mean to do is so to read the predicate used in s. 433A as to yield a natural result, a humane consequence, a just infliction. While there is no vested .

right for any convict who has received a judicial sentence to contend that the penalty should he . softened and that the law which compels the penalty to bi~ carried out in full cannot apply to him, it is the function of the court to adopt a liberal construction when dealing with a criminal. statute in the ordinary course of things. This humanely inspired canon, not applicable to certain terribly anti-social' categories may legitimately be applied to s. 433A. (Thi~ sound rntionale is that expectations of convicted citizens of regaining freedom on existing legal practices should not be frustrated by subsequent Jegisla- 1ion or practices unless the language is beyond doubt). Liberality in .. ascertaining tlhe- 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 E, unless he had served atleast fourteen years of imprisonment". Strict confurmity 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, tlhereflore, if a . person is senten·. :ed to imprisonment for life after s. 433A comes into force, such sentence shall not be released before the 14-year condition set-out therein is fulfilled. More precisely, any person who has been convicted before s. 433A comes into force goes out of tlhe pale of the provision and will enjoy such benefits as accrued to him before s. 433A entered Chapter XXXII. The other clause in the provision suggests the application of the mandatory minimum to cases of com- Jlllltation which have already been perfected, and reads : "Where a sentence of death ..... .

has been commuted under s. 433 into one of imprisonment for life, such person shall not be released from prison unless he had served atleast fourteen years ·of imprisonment. " The draftsman, apparently, is not a grammarian. He uses the tenses without being finical. We are satisfied that even this latter clause merely means that i£ a sentence of death has ,been commuted after thiJ Section comes 1'nto force, such person shall not be released until the condition therein is complied with. 'Is' and 'has' are not words which MARU RAM v. UNION OF INDIA (Krishna Iyer, J. ) 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 constructio. n 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. (1) 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 elimination. If the trial court acquits and the higher court convicts and it so happens that the acquittal is before S. 433-A came into force and the conviction after it, could it be that the convicted person would be denied· the benefit of prospectivity and consequential non-application of S.

433-A merely because he had the bad luck to be initially acquitted? We think not. When a person is convicted in appeal, it' follows that the appellate court has exercised its power in the place of the griginal 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 t. f!. e date of the trial court's verdict and substitute it. In this view, c·ven if the appellate court reverses an earlier acquittal rendered before S. 433-. A: came ;nto force but allows the appeal and convrct3 the, accusr~d, after S. 433-A came into force, such persons will also be entitkd to the benefit of the remission system. prevailing prior to S. 433-A on the basis we have explained. An appeal is a continuation ;. if an appellate judgment as a replacement of the original judgment.

We now move on to the second contention which deals with thi: power of remission under the Constitution and the fruits of its exercise vis a vis S. 433-A. Nobody has a case-indeed cari be heard to contend-that Articles 72 and 161 must yield to S. 433-A. Cooley has rightly indicated that 'where the pardoning power if> vested exclusively in the (top executive) any law which restricts indeed uqthinkable tlrnt in a democracy governed by the rule of Law the executive Government or any of its oincers 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 differe~ce whet~er the exercise of the power involves affectation of some tight or denial of some privilege. · (1) AIR 1969 Ker 81. It (2) [1979] 3 sec 489 at 504·505.

(3) Upendra Baxi, Ed. Eastem Book c::;o. ,. Lucknow (1978) p. ~ 28... .... Tfa~ discretion or the Government has been held to bet not -unlimited in that the Government cannot give or withhold largesse in its arbitrary discretion or at its sweet will. It is insisted, as pointed out by Prof. Reich in an specially stimulating article on "The New Property" in 73 Yale Law Journal 733, "that Goverrnnent action be based on standards tliat 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 hr the matter of granting largesse and it cannot act arbitrarily. It does not stand in the s1:1me position as a private individual.

It is the pride of our constitutional order 1that 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. 1 Speaking generally, Lord Acton's' dictum deserves attention :( } I cannot accept your canon 1hat we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong. If there is any presumpti:on it is the other way, against the holders of power, increasing as the power i:ncreases. Likewise, Edmund Burke, the great British statesman gaye correct 2 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 tl!

&~ they are to accoun~ for their conduct in that tru~t 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 c:xtraneous or mala fide factors will vitiate the exercise. While constimimlal power is beyond challenge, its actual exercise may still be vulnerable. Likewise, capricious criteria will void the exercise. For example, if the Chier Minister of a State releases every one in the a· (1) Letter to Mandell (later, Bishop) CreigJiton, April 5, 1887 Historical Eisays and Studiei;, 1907. (2) Reflections on the Revolution in France 179G. . MARU RAM v. UNION OF INDIA (Krishna Iyer, J. ) 124 3 prisons in his State on his birthday or because a son has been born ,to him; i~ will be an outrage on the Constrtution 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 th_e 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 1 Haryana . Government reads thus :( ) In exercise of the powers conferred under Article 161 the Constitution of India, the Governor of Haryana grants special remissions on the same scale and. terms as mentioned . in Govt 'of India, Ministry of Home Affairs letter No. U. 13034/59/77 ·dated 10th June, 1977 to Prisoners who happened to be confined in Central Jail, Tihar, New Delhi on 29th May, ·1977, at the time of the visit of Home Minister Govt. of India, to the said Jail and who hfis been convicted by the Civil Courts of Criminal l>.

Jurisdiction in Haryana State. A. BANERJEE . :;- ' i" Secretary to Govt. ofHaryana Jails. Department · Dated : Chandigarh, the 18th July, 1978. Push this logic a little further and the absurdity will be obviol,ls. 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 h!! is suffering from cancer or that his wife. is t~rminally ill or that he has completely reformed himself, the power of remission under Arts. 72/161 may ordinarily be excerised 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·w! th strong observations about his bestiality, it may be arrogant and irrelevant abuse of power to remit his entire. -! _ife sentence the yery. next day after the conviction merely because he has joined the party in power or is a clo,se relatfonof a political high-up.

The court, tf it finds frequent misuse of this power may ·have to investigate the discrimination. The proper thi'ng to do, if Government is to keep faith with the founding fathers, is to make ~ , (l) No. 41/8/78/JI (SJ, dated Chandigarh, the 28th•Iuly,l1978. ' - rules' for its own guidance in the exercise of the pardon power keeping, of course, 1a 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 rovide a form of crude retribution to those unfortunate to be ~1pprehended. At worst, prisons are brutalising, cannot be shown to rehabilitate or deter offenders and are detrimental .

to ·the re-entry of offenders into society. Furthermore, the heavy reli~ ance 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 c:riminal 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 2 proved right : ( ) •• 'There are many questions regarding our: prison systems and their rehabilitative quality. Observers from inside the walls find· pris_ons to be a melting pot oftension and anxiety. Tension and. . ,... (! ) "The Failure of lmpriso~:nent" Roman Tomasic and Ia; Dobinson~ , An Australian Perspective. ·Law in Society No. 3, George A. lion and Onwin; p. }. I • . · . · {1). lnside Folsom Prison, An ETC Pubiication, p. 24-25. anxiety are the result of a variety of abnormal conditions.

Prisons, including the so-called model prisons, rob a man of his indi:vidual identity and dignity. Contrary to popular opinion, all convicts are not rock-hard 8 individuals lacking sufficient emotional balance. They are people with fears and aspirations like everyone else. Generally, they don't want '10 fight with oi· kill their neighbour any more than the mail on the street. They want to live in peace and return to ·,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 al! 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-sentendng 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 prematur. ,. release of murderers, without even a followup study of the later . Jifo 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 parC'le~ and probations, generosity of juvenile jusfa:e: 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 lifeconvict 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 bemumbs and makesc 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 psy-· chic tension. We ·have . no hesitation to reject the notion that HARU I. AM v. UNION OP INDIA (Krishna Iyer, J. ) :12411 Arts'. 72/161 should remain uncanalised.

We have to direct the pro• visional acceptance of the remission and short-sentencing schemes aS good guiddim:s for exercise of pardon power-a jurisdiction meant .. , to be used as often and as systematically as possible and not to be abused, much as the temptation so to do may press upon the pen of power. The learned Solicitor General is right that these rules are plainly made under the Prisons Act and not under the oonstitutional power. The former fails under the pressure of s. 433A. But that, by no means.. precludes the States adopting as working rules the 5ame remission schemes which seem to us to be fairly reasonable. After all, the Government cannot meticulously study each prisoner and th~ 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 transmigra~ion 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 consi~ derations. 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 populati:on :S 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 cpnnotation and include any place notified as such for deten• , tion purposes. 'Stone walls and iron bars do not a prison make'; nor are . 'stone walls and iron bars' a ~ine 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 test. Licensed releases where instant re-capture :a is sanctioned by the law, and, likewise, parole, where the parole is -:q() . free agent, and other categories under the invisible fetters of the prison law may legitimately be regarded as' imprisonment. This point is necessary to be cleared even for computation of 14 years under s. 433A. Sections 432, 433 arid 433A read together, lead to the in(erence we have drawn and liberal though guarded, use of this Act may do good. Prison reform, much bruised about though, is more , Wible . on 'the. skin than in the soul and needs a deeper . stirring or SUPREME COURT REPORT&c'. ·''. ~·; [1981] 1 S. C. R.

consciousness than tantrums,' threats and legalised third degree, if th'e authentic vorce of the Father of the Nation be our guide. To chain the man is not to change him; the error is obvious - a human is · more than simian. Our reasoning upholds s. 433A of the Procedure 'l Code but upbraids the abandonment of the healing hope of remissions and release betimes. To legislate belongs to another branch but when: B justice rs the subject the court must speak. There was some argument that s. 433A is under. stood to be a ban on parole. Very wrong.. The Section does not obligate continuous fourteen years fa jail and so parole is permissible. We go further to say that our Prison Administra~ tion should liberalise parole to prevent pent-up tension and sex perver- . __.. /, sion 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 findrngs. 1.

We repulse all the thmsts on the vires of s. 433A. Maybe, penologically the prolonged terms prescribed by the Section- is' Supererogative. If we had our druthers we would have. negatived the need D for a fourteen-year gestation for reformation. But ours is to construe,· 'not construct, to decode, not to make a code. ' 2. We affirm the current supremacy of s. 433A over the Remis- ~ion Rules and sJ1ort-sentencing statutes made by the various States. · 3. ·We uphold all remissions and short-sentencing passed· under Articles ,72 and 161 of the Constitution but release will follow, in life sentence cases, only on Government making an order en masse or individual