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TMI Blog1980 (11) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 strong; And that each day is like a year, A year whose days ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, 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 single issue, which has proliferated into many at the hands of a plurality of advocates, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 might have been sentenced or for fine: (d) a sentence of simple imprisonment, for fine. F The Sections above quoted relate to remission and commutation of sente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of lifers. The draconian provision (as some counsel have described it) was the product of the Joint Committee s proposal to add a proviso to s. 57 of the Penal Code. Its appropriate place was in the Procedure Code and so s. 433A was enacted when the Criminal Procedure Code was amended. It was a punitive prescription made to parliamentary measure which prohibited premature release before the lifer suffered actual incarceration for 14 years. No opposition to this clause was voiced in Parliament (Sixth Lok Sabha) so far as our attention was drawn, although that was, vocally speaking, a period of high tide of human rights (1978). The objects and Reasons throw light on the why of this new provision: The Code of Criminal Procedure, 1973 came into force on the 1st day of April, 1974. The working of the new Code has been carefully watched and in the light of the experience it has been found necessary to make a few changes for removing certain difficulties and doubts. The notes on clauses explain in brief the reasons for the amendments. The notes on clauses gives the further explanation: Clause 33: Section 432 contains provision relating to powers of the appropriate Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulate the contentions which have been urged by wave after wave of counsel. The principal challenge has been based upon an alleged violation of Arts. 72 and 161 by the enactment of s. 433A. Sarvashri Nand Lal, R.K. Garg, Mridul, Tarkunde and Dr. Singhvi, among others have argued this point with repetitive vehemence and feeling for personal freedom. The bar is the bastion. Indeed, Shri Garg was shocked that we were not shocked by such long incarceration being made a statutory condition for release of a lifer guilty of murder and was flabbergasted at even a faint suggestion that the President or the Governor might exercise his power of commutation guided, inter alia, by the parliamentary pointer expressed in s. 433A. The next contention voiced with convincing vigour by Shri Tarkunde was that s. 433A violated Art. 14 being wholly arbitrary and irrational. Shri Mridul, with persuade flavour, stressed that s. 433A lacked legislative competency under the Lists and must be struck down for the additional reason of contravention of Art. 20(1) of the Constitution and backed his plea with American authorities, Shri Kakkar made an independent contribution, apart from endorsement of the earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soners reformative freedom, have not shown us any criticism in the Press-the Fourth Estate-or by any member or Party in Parliament or outside, about this allegedly obnoxious provision repelling rules of remission and legislations for shortening sentences, the high tide of human rights notwithstanding. Judge Learned Hand s famous warning about liberty lying in the bosoms of the people comes to mind. Court comes last; where is the first ? Issues of liberty are healthy politics and those sincerely committed to human rights must come to the support of poor prisoners who have no votes nor voice and may perhaps be neglected by human rights vocalists with electoral appetites. It is a little strange that when no dissent is raised in Press or Parliament and a legislation has gone through with ease there should be omnibus demand in court as a last refuge for release of prisoners detained under a permanent legislation, forgetting the functional limitations of judicial power. Nevertheless, we will cover the entire spectrum of submissions including those based upon fundamental freedoms because courts cannot abdicate constitutional obligations even if Parliament be pachydermic and politic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulation of prisoner s life. The distinction between prisons and prisoners on the one hand and sentences and their execution, remission and commutation on the other, is fine but real. To bastardize s. 433A as outside the legitimacy of Entry 2 in List III is to breach all canons of constitutional interpretation of legislative Lists. Parliament has competency. Let us assume for a moment that the laws of remission and short-sentencing are enacted under Entry 4 of List II. In that event the States competency to enact cannot be challenged. After all, even in prison-prisoner legislation, there may be beneficient provisions to promote the habilitative potential and reduce warder-prisoner friction by stick-cum-carrot strategies. Offer of remission paroles, supervised releases, opportunities for self-improvement by family contacts, time in community work centres and even meditational centres, can properly belong to prison legislation. Rewards by remissions, like punishments by privations are permissible under Entry 4 of List II. Indeed, progressive rehabilitatory prison laws which have a dynamic correctional orientation and reformatory destination, including meaningful intermission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 imperative intent to keep imprisoned for at least 14 years those who fall within the sinister categories spelt out in the operative part of s. 433A. The argument is that the non obstante clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcluding the impact of Prison Remissions which led to unduly early release of graver lifers . Parliament knew the vice , had before it the State Remission Systems and sought to nullify the effect in a certain class of cases by use of mandatory language. To read down s. 433A to give overriding effect to the Remission Rules of the State would render the purposeful exercise a ludicrous futility. If Laws suffer from the disease of Language , courts must cure the patient, not kill him. We have no hesitation to hold that notwithstanding the notwithstanding in s. 433A, the Remission Rules and like provisions stand excluded so far as lifers punished for capital offences are concerned. The learned Solicitor General explained why the draftsman was content with mentioning only s. 432 in the non obstante clause. The scheme of s. 432, read with the court s pronouncement in Godse s case (supra), furnishes the clue. We will briefly indicate the argument and later expatiate on the implications of Godse s case (supra) as it has an important bearing on our decision. Sentencing is a judicial function but the execution of the sentence, after the courts pronouncement, is ordinarily a matter f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imprisonment for life. He had earned considerable remissions which would have rendered him eligible for release had life sentence been equated with 20 years of imprisonment a la s. 55 I.P.C. On the basis of a rule which did make that equation, Godse sought his release through a writ petition under Art. 32 of the Constitution. He was rebuffed by this Court. A Constitution Bench, speaking through Subba Rao, J., took the view that a sentence of imprisonment for life was nothing less and nothing else than an imprisonment which lasted till the last breath. Since death was uncertain, deduction by way of remission did not yield any tangible date for release and so the prayer of Godse was refused. The nature of a life sentence is incarceration until death, judicial sentence of imprisonment for life cannot be in jeopardy merely because of long accumulation of remissions. Release would follow only upon an order under s. 401 of the Criminal Procedure Code, 1898 (corresponding to s. 432 of the 1973 Code) by the appropriate Government or on a clemency order in exercise of power under Arts. 72 or 161 of the Constitution. Godse (supra) is authority for the proposition that a sentence of imprison ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences, remissions lead nowhere and cannot entitle a prisoner to release. In this view, the remission rules do not militate against s. 433A and the forensic fate of Godse (who was later released by the State) who had stock-piled huge remissions without acquiring a right to release, must overtake all the petitioners until 14 years of actual jail life is suffered and further an order of release is made either under s. 432 or Arts. 72/161 of the Constitution. The next submission urged to show that s. 433A is bad is based on Art. 20(1) of the Constitution. It is a rule of ancient English vintage that export facto infliction of heavier penalties that prevailed at the time of commission of the offence is obnoxious. It is incarnated as Art. 20(1) in our Constitution. The short question is whether the inflexible insistence on 14 years as a minimum term for release retroactively enlarges the punishment. Another argument addressed to reach the same conclusion is that if at the time of the commission of the offence a certain benign scheme of remissions ruled. the penalty to which he would then have been subjected was not the punishment stated in the Penal Code but that sentence reduced or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen 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 the Code including s. 433A. Section 5 runs thus : 5. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they must denote something different from the words express provision . For a provision of a statute to be an express provision affecting another statute or part of it, it would have, I think, to refer in so many words to the other statute or to the relevant portion of it and also to the effect intended to be produced on it. Failing this, it could hardly be aid to be express .... But the word specific denotes, to my mind, something less exacting than the word express . It means, I think, a provision which specifies that some special law is to be affected by that particular provision. A dictionary meaning of the very to specify as given in Murray s New English Dictionary, is to mention, speak of or name (something) definitely or explicitly; to set down or state categorically or particularly.... and a meaning of the adjective specific in the same dictionary is precise definite, explicit.. exactly named or indicated or capable of being so, precise, particular. What I think the words specific provision really mean therefore is that the particular provision of the Criminal Procedure Code must, in order to affect the special.. law, clearly indicate, in it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but s. 433A is a specific, explicit, definite provisions dealing with a particular situation. Or narrow class of cases, as distinguished from the general run of cases covered by s. 432 Cr. P. C. Section 433A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicity to a particularised treatment. It follows that s. 433A applies in preference to any special or local law because s. 5 expressly declares that specific provisions, if any, to the contrary will prevail over any special or local law. We have said enough to make the point that specific is specific enough and even though special to specific is near allied and thin partition do their bounds divide the two are different. Section 433A escapes the exclusion of s. 5. The stage is now set for considering the contention that S. 433A violates Art. 14 for two reasons. It arbitrarily ignores the unequal, yet vital, variations of crimes and criminals so relevant to punishment in. Our age of penological enlightenment and subjects them equally to a terrible term of 14 years in jail as a mandatory minimum. Treating unequals equally is anathema for Art. 14. Secondly, the Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lor relations, sounds insensitive. Karuna, daya, prema and manavata, are concepts of spiritualised humanism secularly implicit in our constitutional preamble. Alienation of our justice system from our cultural quintessence, thanks to the hang-over of the colonial past, may be the pathological root of the brute penology which confuses between crime and criminal. Torturing the latter to terminate the former is not promotional of human dignity and fair legal process. Be that as it may, this court in Sunil Batra, has observed : The winds of change must blow into our carcers and self-expression and self-respect and self-realization creatively substituted for the dehumanising remedies and wild-life techniques still current in the jail armoury. A few prison villains-they exist-shall not make martyrs of the humane many; and even from these few, trust slowly begets trust. Sarvodaya and antyodaya have criminological dimensions which our social justice awareness must apprehend and actualize. I justify this observation by reference to the noble but inchoate experiment (or unnoticed epic) whereby Shri Jai Prakash Narain redemptively brought murderously dangerous dacoits of Chambal Valley i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... One of the subjects dealt with in the Manual is release planning . We need nat tarry long to tell the truth that every sinner has a future, given the social chance, and every prisoner a finer chapter as a free person, given the creative culturing of his psychic being. The measure of this process is not the mechanical turn of the annual calendar fourteen times over, but the man-making methodology of the correctional campus, together with individual response. It follows that an inflexible 14 year term for lifers under s. 433A eschews chances of human change and puts all the penal eggs in the linear cellular basket. May be, the failure of prisons (this is the title of a recent book by a competent criminologist) has not occurred to Parliament when it enacted s. 433A or the Gandhian gospel has, by 1978, lost its living impact on the parliamentary majority in the field of prison reform. We cannot speculate on these imponderables and must do our batting from within textual crease. Surely arbitrary penal legislation will suffer a lethal blow under Art. 14. But the main point here is whether s. 433A harbours this extreme vice of arbitrariness or irrationality. We must remember that Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anti-social behaviour has to be countered not by undue cruelty but by reculturisation. Therefore the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human to day views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defence. We, therefore, consider a therapeutic rather than an in terrorem outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw: if you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries . We emphasise here that Remission Schemes offer healthy motivation for better behaviour, inner improvement and development of social fibre. While eccentricities of remission reducing a murderer s life term to short spells of 2 or 3 years in custody may scandalise penologists, such fear may not flabbergas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly refuses to consider the subsequent conduct of the prisoner and forces all convicts, good, bad and indifferent, to serve a fixed and arbitrary minimum it is an angry flat untouched by the proven criteria of reform. Surely, an avant garde penologist or T.M. Oriented jurist would regard enlightened sentencing as abbreviated life behind bars coupled with rehabilitatory exposure inside and outside. May be, he may even criticise the draconian duration, blindly running beyond 14 years, as penological illiteracy. Criminologists concentrate on the activisation of the creative intelligence of the culprit by various procedures and by his release from jail at a cut-off point when the jural-netural tests of mental-moral normalcy, otherwise called Rehabilitation Indices, are satisfied. To violate these research results and to be addicted to a 14- year prison term is a penal superstition without any rational support and, therefore, is arbitrary. Why not 20 years? or a whole life? No material, scientific cultural or other has been placed for our consumption by the State indicating that if a murderer does not spend at least 14 endless years inside jail he will be a social menace when released. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the thought that, personal opinions apart, a very long term in prison for a murderer cannot be castigated as so outrageous as to be utterly arbitrary and violative of rational classification between lifers and as so blatantly barbarous as to be irrational enough to be struck down as ultra vires. Even the submission that no penal alibi justifies a prisoner being kept walled off from the good earth if, by his e. conduct, attainments and proven normalisation, he has become fit to be a free citizen, cannot spell unconstitutionality. And the uniform infliction of a 14-year minimum on the transformed and the unkept is an unkind disregard for redemption inside prison. Even so, to overcome the constitutional hurdle much more material, research results and specialist reports, are needed. How to assert who has become wholly habilitated and who not, unless you rely on the Rehabilitation Index ? Currently, we have theories, and experiments awaiting social scientists certificates of certitude. For instance, deep relaxation recipes and meditational techniques, researched with scientific tools, well-known and sophisticated experiments, neurological and psychological, claim to have achieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial award or statutory commutation by the executive should not devalue the sterness of the sentence to be equated with the life sentence awarded for the obviously less serious clauses of offences where the law itself has fixed a maximum of only life imprisonment, not death penalty as a harsher alternative. The logic is lucid although its wisdom, in the light of penological thought, is open to doubt. We have earlier stated the parameters of judicial restraint and, as at present advised, we are not satisfied that the classification is based on an irrational differentia unrelated to the punitive end of social defence. Suffice it to say here, the classification, if due respect to Parliament s choice is given, cannot be castigated as a capricious enough to attract the lethal consequence of Art. 13 read with Art. 14. Law and Life deal in relatives, not absolutes. No material, apart from humane hunches, has been placed by counsel whose focus has been legal, not social science-oriented, to show that prolonged jail life reaches a point of no return and is unreasonable. On the materials now before us, we do not strike down s. 433A on the score of capricious classification. Some day, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation must be so interpreted as to speak futuristically. We do not mean to enter the area of Art. 20(l) which has already been dealt with. What we mean to do is so to read the predicate used in s. 433A as to yield a natural result, a humane consequence, a just infliction. While there is no vested right for any convict who has received a judicial sentence to contend that the penalty should be softened and that the law which compels the penalty to be carried out in full cannot apply to him, it is the function of the court to adopt a liberal construction when dealing with a criminal statute in the ordinary course of things. This humanely inspired canon, not applicable to certain terribly anti-social categories may legitimately be applied to s. 433A. (The sound rationale is that expectations of convicted citizens of regaining freedom on existing legal practices should not be frustrated by subsequent legislation or practices unless the language is beyond doubt). Liberality in ascertaining the sense may ordinarily err on, the side of liberty where the quantum of deprivation of freedom is in issue. In short, the benefit of doubt, other things being equal, must go to the citizen in penal s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 original court and the guilt, conviction and sentence must be substituted for and shall have retroactive effect from the date of judgment of the trial court. The appellate conviction must relate back to the date of the trial court s verdict and substitute it. In this view, even it the appellate court reverses an earlier acquittal rendered before S. 433-A came into force but allows the appeal and convicts the accused, after S. 433-A came into force, such persons will also be entitled to the benefit of the remission system prevailing prior to S. 433-A on the basis we have explained. An appeal is a continuation of an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nconvinced be, the submissions of counsel in this behalf. It is apparent that superficially viewed, the two powers, one constitutional] and the other statutory, are coextensive. But two things may be similar but not the same.That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States. The source is different, the substance is different, the strength is different although the stream may be flowing along the same bed. We see the two powers as far from being identical, and, obviously, the constitutional power is untouchable and unapproachable and cannot suffer the vicissitudes of simple legislative processes. Therefore, s. 433A cannot be invalidated as indirectly violative of Arts. 72 and 161. What the Code gives, it can take, and so, an embargo on ss. 432 and 433(a) is within The legislative power of Parliament. Even so, we must remember the constitutional status of Arts. 72 161 and it is common ground that s. 433A does not and cannot affect even a wee-bit the pardon power of the Governor or the President. The nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resident save in a narrow area which does not include Art. 161. The Constitutional conclusion is that the Governor is but a shorthand expression for the State Government and the President is an abbreviation for the Central Government. An issue of deeper import demands our consideration at this stage of the discussion. Wide as the power of pardon, commutation and release (Arts. 72 and 161) is, it cannot run riot; for no legal power can run unruly like John Gilpin on the horse but must keep sensibly to a steady course. Here, we come upon the second constitutional fundamental which underlies the submissions of counsel. It is that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power, We proceed on the basis that these axioms are valid in our constitutional order. The jurisprudence of constitutionally canalised power as spelt out in the second proposition also did not meet with serious resistance from the learned Solicitor General and, if we may say so rightly. Article 14 is an expression of the egalitarian spirit of the Constitution a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution of Liberty or the exposition set forth by Harry Jones in his The Rule of Law and the Welfare State , there is as pointed out by Mathew J., in his article on The Welfare State, Rule of Law and Natural Justice in Democracy, Equality and Freedom Substantial agreement in Juristic thought that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power, wherever it is found . It is indeed unthinkable that in a democracy governed by the rule of Law the executive Government or any or its officers should possess arbitrary power over the interests of the individual. Every action of the Executive Government must be informed with reason and should be free from ,, arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege. .... The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold Largesse in its arbitrary discretion or at its sweet will. It is insisted, as pointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o our notice that a certain Home Minister s visit to a Central Jail was considered so auspicious an omen that all the prisoners in the jail were given substantial remissions solely for this reason. Strangely enough, this propitious circumstance was discovered an year later and remission order was issued long after the Minister graced the penitentiary. The actual order passed on July 18, 1978 by the Haryana Government reads thus In exercise of the powers conferred under Article 161 the Constitution of India, the Governor of Haryana grants special: remissions on the same scale and terms as mentioned in Govt. Of India, Ministry of Home Affairs letter No. U. 13034/59/77 dated 10th June, 1977 to Prisoners who happened to be confined in Central Jail, Tihar, New Delhi on 29th May, 1977, at the time of the visit of Home Minister Govt. Of India, to the said Jail and who has been convicted by the Civil Courts of Criminal Jurisdiction in Haryana State. A. BANERJEE Secretary to Govt. of Haryana Jails Department Dated: Chandigarh, the 18th July, 1978. Push this logic a little further and the absurdity will be obvious. No Constitutional power can be vulgarised by personal vanit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in prisons will be returned to be our neighbors, and now the thrust of the entire program, as initiated under Ellis MacDougall and now continued under Dr. Ault, is to try to discern in the Soul of each convicted and sentenced person redeeming features that can be enhanced. We plan a career for that person to be pursued while he is in prison. I believe that the early data that we have on recidivism rates indicate the efficacy of what we ve done. All these go to prove that the length of imprisonment is not regenerative of the goodness within and may be proof of the reverse-a calamity which may be averted by exercise of power under Art. 161, especially when the circumstances show good behaviour, industrious conduct, social responsibility and humane responses which are usually reflected in the marks accumulated in the shape of remission. In short, the rules of remission may be effective guidelines of a recommendatory nature, helpful to Government to release the prisoner by remitting the remaining term. The failure of imprisonment as a crime control tool and the search for non-institutional alternatives in a free milieu, gain poignant pertinence while considering the mechanical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... himself inside a pit such as Folsom Prison. The rule of law, under our constitutional order, transforms alt public power into responsible, responsive, regulated exercise informed by high purposes and geared to people s welfare. But the wisdom and experience of the past have found expression in remission rules and shortsentencing laws. No new discovery by Parliament in 1978 about the futility or folly of these special and local experiences, spread ever several decades, is discernible. No High-power committee report, no expert body s recommendations, no escalation in recidivism attributable to remissions and releases, have been brought to our notice. Impressionistic reaction to some cases of premature release of murderers, without even a follow up study of the later life of these quondam convicts, has been made. We find the rise of enlightenment in penological alternatives to closed prisons as the current trend and failure of imprisonment as the universal lament. We, heart-warmingly, observe experiments in open jails, filled by lifers, liberal parolee and probations, generosity of juvenile justice and licensed release or freedom under leash-a la The Uttar Pradesh Prisoners Releas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor are stone walls and iron bars a sine qua non to make a jail. Open jails are capital instances. Any life under the control of the State, whether within the high-walled world or not, may be a prison if the law regards it as such. House detentions, for example. Palaces, where Gandhiji was detained, were prisons. Restraint on freedom under the prison law is the lest. Licensed releases where instant re-capture is sanctioned by the law, and, likewise, parole, where the parole is no free agent, and other categories under the invisible fetters of the prison law may legitimately be regarded as imprisonment. This point is necessary to be cleared even for computation of 14 years under s. 433A. Sections 432, 433 and 433A read together. Iead to the inference we have drawn and liberal though guarded, use of this Act may do good. Prison reform, much bruised about though, is more the skin than in the soul and needs a deeper stirring of consciousness than tantrums, threats and legalised third degree, if the authentic voice of the Father of the Nation be our guide. To chain the man is not to change him; the error is obvious-a human is more than simian. Our reasoning upholds s. 433A of the Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 433A came into force. All lifers whose conviction by the court of first instance was entered prior to that date are entitled to consideration by Government for release on the strength of earned remissions although a release can take place only if Government makes an order to that effect. To this extent the battle of the tenses is won by the prisoners. It follows, by the same logic, that short-sentencing legislations, if any, will entitle a prisoner to claim release thereunder if his conviction by the court of first instance was before s. 433A was brought into effect. 8. The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to. the whole group. 9. Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 The length of this judgment (like the length of s. 433A Cr. P. C.) could have been obviated but the principles and pragmatics enmeshed in the mass of cases which are but masks for human trials warrant fuller examination even of peripherals. Moreover, Chief Justice Earl Warren s admonition makes us scrutinise the basics, undeterred by length: Our judges are not monks or scientists, but participants in the living stream of our national life, steering the law between the dangers of rigidity on the one hand and of formlessness on the other. Our system faces no theoretical dilemma but a single continuous problem: how to apply to ever-changing conditions the never-changing principles of freedom. (Fortune, November, 1955) A Final Thought Fidelity to the debate at the bar persuades us to remove a misapprehension. Some argument was made that a minimum sentence of 14 years imprisonment was merited because the victim of the murder must be remembered and all soft justice scuttled to such heinous offenders. We are afraid there is a confusion about fundamentals mixing up victimology with penology to warrant retributive severity by the backdoor. If crime claims a victim criminolog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At the same time, it cannot be gainsaid that such an objective cannot be achieved without mustering the necessary facilities, the requisite education and the appropriate climate which must be created to foster a sense of repentance and penitence in a criminal so that he may undergo such a mental or psychological revolution that he realises the consequences of playing with human lives. In the world of today and particularly in our country, this ideal is yet to be achieved and, in fact, with all our efforts it will take us a long time to reach this sacred goal. The process of reasoning that even in spite of death sentence murders have not stopped is devoid of force because, in the first place, we cannot gauge, measure or collect figures or statistics as to what would have happened if capital punishment was abolished or sentence of long imprisonment was reduced. Secondly, various criminals react to various circumstances in different ways and it is difficult to foresee the impact of a particular circumstance on their criminal behaviour.. The process of reformation of criminals with an unascertained record would entail a great risk as a sizable number of criminals instead of being re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and can be regarded as safe (1) for the society. Explaining the material and practical advantages of long-term imprisonment Sir Leon Radzinowicz in his book The Growth of Crime aptly observes as follows: Long imprisonment could be regarded as the neat response to all three requirements: it would put the miscreants behind bars for a long time; it would demonstrate that the game was not wirth the candle for others. (p. 195) The author gives examples in support of his views thus: Two English police officers were sentenced to seven years imprisonment for accepting bribes and conspiring to pervert the courts of justice, two others for hounding a vagrant. In Turkey a similar sentence was passed upon a writer for translating and publishing the works of Marx and Engels. In Russia the manager of a mechanical repair shop was sentenced to death for theft of state property. In the Philippines a Chinese businessman was condemned to public execution by firing squad for trafficking in drugs. In Nigeria something like eighty people suffered the same fate within a year or two for armed robbery. All these sentences had, of course, their elements of deterrence and retribution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain, (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. Ted Honderich in his book punishment while dealing with the deterrent form of punishment observes as follows: It is also to be noticed that the conditions have other consequences as well. Penalties must be sufficiently severe to deter effectively. Bentham has also pointed out that a penalty may be justified when the distress it causes to the offenders and others is not greater than the distress that will result if he and others undeterred, offended in the future. Ted Honderich after highlighting various aspects of the deterrent form of punishment concludes as follows:- There are classes of offenders who are not deterred by the prospect of punishment, it cannot be acceptable that a society should attempt to prevent all offences by punishment alone .......... In anticipation of the discussion to come of com prom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the offender and other factors referred to in the Constitution Bench judgment of this Court in Bachan Singh v. State of Punjab. In these circumstances, I am of the opinion that the Parliament in its wisdom chose to act in order to prevent criminals committing heinous crimes from being released through easy remissions or substituted form of punishments without undergoing atleast a minimum period of imprisonment of fourteen years which may in fact act as a sufficient deterrent which may prevent criminals from committing offences. In most parts of our country, particularly in the north, cases are not uncommon where even a person sentenced to imprisonment for life and having come back after earning a number of remissions has committed repeated offences. The mere fact that a long term sentence or for that matter a sentence of death has not produced useful results cannot support the argument either for abolition of death sentence or for reducing the sentence of life imprisonment from 14 years to something less. The question is not what has happened because of the provisions of the penal Code but what would have happened if deterrent punishments were not given. In the present distresse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sound legal principles as adumbrated by Brother Krishna Iyer, J. I, therefore, think that any reduction or modification in the deterrent punishment would r far from reforming the criminal be counter-productive. Thus, on a consideration of the circumstances, mentioned above, the conclusion is inescapable that parliament by enacting s. 433A has rejected the reformative character of punishment, in respect of offences contemplated by it, for the time being in view of the prevailing conditions in our country. It is well settled that the legislature understands the needs and requirements of its people much better than the courts because the Parliament consists of the elected representatives of the people and if the Parliament decides to enact a legislation for the benefit of the people, such a legislation must be meaningfully construed and given effect to so as to subserve the purpose for which it is meant. Doubtless, the President of India under Art. 72 and the State Government under Art. 161 have absolute and unfettered powers to grant pardon, reprieves, remissions, etc. This power can neither be altered, modified or interfered with by any statutory provision. But, the fact remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object of penal legislation but so is retribution which is also described as a symbol of social condemnation and a vindication of the law. The question on which a divergence of opinion has been expressed at the bar is the emphasis which the legislature is expected to place on each of the said four objects. It has been contended on behalf of the petitioners that the main object of every punishment must be reformation of the offender and that the other objects above mentioned must be relegated to the background and be brought into play only incidentally, if at all. I have serious disagreement with this proposition and that for three reasons. 3. In the first place, there is no evidence that all or most of the criminals who are punished are amenable to reformation. It is true that in recent years an opinion has been strongly expressed in favour of reformation being the dominant object of punishment but then an opposite opinion has not been lacking in expression. Champions of the former view cry from housetops that punishment must have as its target the crime and not the criminal. Others, however, have been equally vocal in bringing into focus the mischief flowing from what the crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a penal provision should be) notwithstanding. 5. The third reason flows from a careful study of the penal law prevalent in the country, especially that contained in the Indian Penal Code which brings out clearly that the severity of each punishment sanctioned by the law is directly proportional to the seriousness of the offence for which it is awarded. This, to my mind, is strongly indicative of reformation not being the foremost object sought to be achieved by the penal provisions adopted by the legislature. A person who has committed murder in the heat of passion may not repeat his act at all later in life and the reformation process in his case need not be timeconsuming. On the other hand, a thief may take long to shed the propensity to deprive others of their good money. If the reformative aspect of punishment were to be given priority and predominance in every case the murderer may deserve, in a given set of circumstances, no more than a six months period of incarceration while a thief may have to be trained into better ways of life from the social point of view over a long period, and the death penalty, the vires of which has been recently upheld by a majority of four in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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