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1980 (11) TMI 167 - Supreme Court Of India

1980 (11) TMI 167 - Supreme Court Of India - 1980 AIR 2147, 1981 SCR (1)1196, 1981 SCC (1) 107 - Writ Petitions NOS. 865/79, 641/80, 409, 783, 695, 690, 747, 4346 of 1980, 147/79, 1860/80, 2389, 4115, 1365, 457,869, 4311-12, 813, 2505, 1659, 3784-94, 2602-10, 4376-91, 4392-95, 4404, 1177 of 1980. - Dated:- 11-11-1980 - KRISHNAIYER V.R., CHANDRACHUD Y.V., BHAGWATI P.N., FAZALALI SYED MURTAZA And KOSHAL A.D., JJ. R. K. Garg, Francis, Sunil K. Jain, A. P. Mohanty, S. K. Sabharwal, Mr. C. P. Pandey, .....

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Sen, D. R. Mridul, Nemi Chand Chowdhary , Sushil Kumar Jain, Dr. L. M. Singhvi, S. K. Bagga and Mrs. S. Bagga and Nand Lal for the Petitioners. P. Ram Reddy, G. N. Rao, M. Veerappa, M. C. Bhandare, M. N. Shroff, O. P. Sharma, M. S. Dhillon, Badridas Sharma, K. Parasaran, Sol. General, M. K. Banerjee, Addl. Sol. Genl. and N. Nettar and Miss A. Subhashini. O. P. Rana, S. C. Maheshwari and R. K. Bhatt for State of U.P. for The Respondent. JUDGMENT: KRISHNAIYER V.R., A procession of life convicts w .....

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by prison law and human justice. Their despair is best expressed in the bitter lines of Oscar Wilde I know not whether Laws be right, or whether Laws be wrong, All that we know who lie in gaol, Is that the wall is strong; And that each day is like a year, A year whose days are long. (Emphasis added) But broken hearts cannot break prison walls. Since prisons are built with stones of law, the key to liberation too is in law s custody. So, counsel have piled up long and learned arguments punctuated .....

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broken the law of the Constitution by enacting s. 433A. Now, the concrete question and the back-up facts. All the petitioners belong to one or other of two categories. They are either sentenced by court to imprisonment for life in cases where the conviction is for offences carrying death penalty as a graver alternative or are persons whom the court has actually sentenced to death which has since been commuted by the appropriate Governments under 5. 433(a) of the Procedure Code to life imprisonme .....

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entenced to life terms for lesser offences which do not carry death penalty as an either/or possibility. There are around 40 offences which carry a maximum sentence of life imprisonment without the extreme penalty of death as an alternative. The rules of remission and release were common for all prisoners, and most States had rules under the Prisons Act, 1894 or some had separate Acts providing for shortening of sentences or variants thereof, which enabled the life-sentencee, regardless of the o .....

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es 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 pe .....

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ges the basis of early release and narrow down the compulsive territory of 14-year jail term. Lord Denning, in the first Hamlyn Lectures and Sir Norman Anderson in the next before last of the series, emphasised; ... the fundamental principle in our courts that where there is any conflict between the freedom of the individual and any other rights or interests, then no matter how great or powerful those others may be, the freedom of the humblest citizen shall prevail. Of course, most of the petiti .....

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ve led to a system of sentencing which has worked substantial hardship and injustice on countless inmates. Indeterminate sentences generally are much longer and more costly than fixed sentences and create additional emotional strain on both the inmate and his family, who are left to wonder when they will be freed.(l) The imprisoned poet, Oscar Wilde, wrote that courts must know when adjudicating the arbitrariness of long-term minima implacably imposed in the name of social defence : (2) Somethin .....

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here a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where the sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. Piecemeal understanding, like a little learning, may prove to be a dangerous thing. To get a hang of the whole subject .....

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vided by the Indian Penal Code. (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced or for fine: (d) a sentence of simple imprisonment, for fine. F The Sections above quoted relate to remission and commutation of sentences. There were similar provisions in the earlier Code corresponding to ss. 432 and 433 (ss. 401 .....

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use of the power of remission under s. 433(a) may mean that many a murderer or other offender who could have been given death sentence by the court but has been actually awarded only life sentence may legally bolt away the very next morning, the very next year, after a decade or at any other time the appropriate Government is in a mood to remit his sentence. Bizarre freaks of remissions, - such, for instance, as the impertinent happenstance of a Home Minister s hallowed presence on an official .....

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t to enact s. 433A. In many States, we are told, lifers falling within the twin tainted categories routinely earned remissions under the extant rules resulting in their release in the matter of a few years. The penological sense of Parliament was apparently outraged by such extreme abbreviations of life sentences where the offence was grave as might have invited even death penalty. The same situation prevailed in regard to those who had actually been subjected to death penalty but, thanks to s. .....

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rocedure 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 provisi .....

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remit sentences. The Joint Committee on the Indian Penal Code (Amendment) Bill, 1972, had suggested the insertion of a proviso to section 57 of the Indian Penal Code to the effect that a person who has been sentenced to death and whose death sentence has been commuted into that of life imprisonment and persons who have been sentenced to life imprisonment for a capital offence should undergo actual imprisonment of 14 years in Jail, since this particular matter relates more appropriately to the C .....

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nty years. In this connection attention of the Committee was brought to the aspect that sometimes due to grant of remission even murderers sentenced or commuted to life imprisonment were released at the end of 5 to 6 years. The committee feels that such a convict should not be released unless he has served atleast fourteen years of imprisonment. Shortly put, the parliamentary committee concerned with the amendments to the Penal Code was seriously upset by the gross reductions and remissions resu .....

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urt, as sentinel on the qui vive, from defending fundamental rights against legislative aggression, if any flagrant excess were clearly made out. We have to examine the legislative history of ss. 432 and 433 and study the heritage of Arts. 72 and 161 of the Constitution. But this we will undertake at the appropriate stage. Before proceeding further, we may briefly formulate the contentions which have been urged by wave after wave of counsel. The principal challenge has been based upon an alleged .....

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is 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 m .....

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ference to the abortive history of the amendment of s. 302 I.P.C. and the necessity of having to read down the text of s. 433A in the context of the story of its birth. Apart from the legislative vicissitudes in the light of which he wanted us to interpret s. 433A restrictively, Dr. Singhvi treated us to the provisions of the Irish Constitution and international human rights norms by way of contrast and desired us to give effect to the rules of remission at least as directives for the exercise o .....

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to s. 433A. We must appreciatively mention that he did tersely meet point by point, with persuasive precision, juristic nicety, case-law erudition and fair concession. His submissions have helped us see the issues in perspective and focus attention on fundamentals without being side-tracked by frills and frippery. There has been much over-lapping inevitable in plural orality but the impressive array of arguments on a seemingly small point does credit to the expansive potential of the forensic c .....

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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 su .....

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luding those based upon fundamental freedoms because courts cannot abdicate constitutional obligations even if Parliament be pachydermic and politicians indifferent. (With great respect, ordinarily they are not.) Indeed, we must go further, on account of our accountability to the Constitution and the country and clarify that where constitutional liberties are imperilled judges cannot be nonaligned. But we must remind counsel that where counterfeit constitutional claims are pressed with forensic .....

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ability, result in orders of release by Government of the thousands of petitioners before us. Thus, it is of central importance to decide whether Parliament has no legislative competence to enact the impugned provision. We dismiss the contention of competency as of little substance. It is trite law that the Lists in the Seventh Schedule broadly delineate the rubrics of legislation and must be interpreted liberally. Article 246(2) gives power to Parliament to make laws with respect to any of the .....

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Once we accept the irrefutable position that the execution, remission and commutation of sentences primarily fall, as in the earlier Code (Criminal Procedure Code, 1898), within the present Procedure Code (Chapter XXXII), we may rightly assign s. 433A to entry 2 in List III as a cognate provision integral to remission and commutation, as it sets limits to the power conferred by the preceding two sections. This Limited prescription as a proviso to the earlier prescription relates to execution of .....

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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 remissio .....

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er of the State is subject to Art. 246(1) and (2) and so parliamentary legislation prevails over State legislation. Moreover, Art. 254 resolves the conflict in favour of parliamentary legislation. If a State intends to legislate under Entry 2 of List III such law can prevail in that State as against a parliamentary legislation only if presidential assent has been obtained in terms of Art. 254 (2). In the present case there is hardly any doubt that s. 433A must hold its sway over any State legisl .....

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exists. This indubitable constitutional position drove counsel to seek refuge in the limited nature of the non obstante clause in s. 433A and the savings provision in s. 5 of the Procedure Code itself. The contention was that s. 433A allowed free play for the rules of remission and shortsentencing legislation. The narrow scope of the non obstante clause was the basis of this argument. It excluded the operation of s. 432 only and thereby implicitly sanctioned the operational survival of Remission .....

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tic navigatory before turning to erudite alternatives. Oliver Wendel Holmes has wisely said: "It is sometimes more important to emphasize the obvious than to elucidate the obscure." Another sage counsel is Frankfurter s three-fold advice : (1) Read the statute; (2) read the statute, (3) read the statute ! If we read s. 433A and emphasise the obvious, it easily discloses the dividing line between sense and non-sense. The fasciculus of clauses (ss. 432, 433 and 433A), read as a package, .....

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ears. 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 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 i .....

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tening of sentences". Clearly, therefore, the States have the power to make rules on Remission Systems and many States have, for long, made and worked such rules. They are intra vires, since even new legislations on remissions and rewards are good under Entry 4 of List II. These vintage schemes do not vanish with the enactment of the Constitution but suffer a partial eclipse if they conflict with and become repugnant to a Central law like the Procedure Code. If s. 433A, by sheer repugnancy, .....

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efully co-exist with s. 433A once we grasp the ratio in Godse s case and Rabha s case. We cannot agree with counsel that the non obstante provision impliedly sustains. It is elementary that a non obstante tail should not wag a statutory dog (see for similar idea, "The Interpretation and Application of Statutes by Reed Dickerson, p. 10). This court has held, way back in 1952 in Aswini Kumar Ghose that a non obstante clause cannot whittle down the wide import of the principal part. The enacti .....

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o 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 .....

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Schedule. Keeping aside the constitutional powers under Arts. 72 and 161 which are untouchable and unapproachable for any legislature, let us examine the law of sentencing, remission and release. Once a sentence has been imposed, the only way to terminate it before the stipulated term is by action under 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 concer .....

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t action under s. 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 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 o .....

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ed from this discussion as being beyond any legislative power to curb or confine. We are loathe to loading this judgment with citations but limit it to two leading authorities in this part of the case. Two fundamental principles in sentencing jurisprudence have to be grasped in the context of the Indian corpus juris. The first is that sentencing is a judicial function and whatever may be done in the matter of executing that sentence in the shape of remitting, commuting or otherwise abbreviating, .....

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espect 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 .....

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unishment 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 whi .....

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of this juristic distinction is that 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. 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 a .....

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igible 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, deductio .....

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72 or 161 of the Constitution. Godse (supra) is authority for the proposition that a sentence of imprisonment for life is one of "imprisonment for the whole of the remaining period of the convicted person s natural life". The legal position has been set out in the context of remissions in life sentence cases thus: Unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisone .....

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sportation for life or its prison equivalent, the life imprisonment, is one of indefinite duration, the remissions so earned do not in practice help such a convict as it is not possible to predicate the time of his death. That is why the rules provide for a procedure to enable the appropriate Government to remit the sentence under s. 401 of the Code of Criminal Procedure on a consideration of the relevant factors, including the period of remissions earned. The question of remission is exclusivel .....

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as release of the prisoner. But when the sentence awarded by the judge is for a fixed term the effect of remissions may be to scale down the term to be endured and reduce it to nil, while leaving the factum and quantum of the sentence in tact. That is the ratio of Rabha (supra). Here, again if the sentence is to run until life lasts, remissions, quantified in time, cannot reach a point of zero. This is the ratio of Godse. The inevitable conclusion is that since in s. 433A we deal only with life .....

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at 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 com .....

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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 when a final release order is made. Godse (supra) is too emphatic and unmincing to admit of a different conclusion. The haunting distance of death which is the term .....

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n 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 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 de .....

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is that life sentence is nothing less than life-long imprisonment. Moreover, the penalty then and now is the same-life term. And remission vests no right to release when the sentence is life imprisonment. No greater punishment is inflicted by s. 433A than the law annexed originally to the crime. Nor is any vested right to remission cancelled by compulsory 14 years jail life once we realise the truism that a life sentence is a sentence for a whole life. see Sambha Ji Krishan Ji v. State of Mahar .....

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emes 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 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 .....

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ocal 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 1941 Bom. 146, he frankly stated, takes a contrary but scrappy view. The Judicial Committee in Pakala Narayana Swamy v. The King Emperor inconclusively considered what is a specific law, in a similar setting. Two later cases of Lahore [a full be .....

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Decisions (supra). The setting in which the issue was raised was precisely similar and the meaning of specific provision to the contrary was considered by Young, C.J. in the Lahore case where the learned Judge observed : The word specific is defined in Murray s Oxford Dictionary as precise or exact in respect of fulfillment, conditions or terms; definite, explicit . In a similar situation, the same words fell for decision in the Allahabad case where Braund, J., discussed the meaning of specific .....

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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 spec .....

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aw or the effect on it intended to be produced in express terms. Lord Hatherley in (1893) 3 AC 933 at 938 has defined the word specific in common parlance of language as meaning distinct from general .. It would, no doubt, be possible to multiply illustrations of analogous uses of the words specify and specific . But this is I think sufficient to show that, while requiring something less than what is express , they nevertheless require something which is plain certain and intelligible and not me .....

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ral. Fowler regards this word related to the central notion of species as distinguished from genus and says that it is often resorted to by those who have no clear idea of their meaning but hold it to diffuse an air of educated precision . Stroud says specifically... means as such . Black gives among other things, the following meaning for specific : definite, explicit; of an exact or particular nature... particular; precise. While legalese and English are some times enemies we have to go by jud .....

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times, what is specific may also be special but yet they are distinct in semantics. From this angle, the Criminal Procedure Code is a general Code. The remission rules are special laws but s. 433A is a specific, explicit, definite provisions dealing with a particular situation. Or narrow class of cases, as distinguished from the general run of cases covered by s. 432 Cr. P. C. Section 433A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it expli .....

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ing 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 Section inflicts, with anti-reformative inhumanity and Procrustean cruelty, a prolonged minimum of 14 years servitude on every life .....

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ahatma Gandhi s therapeutic approach to criminals and Maneka Gandhi s accent on fairness in privative processes where personal liberty is involved. The larger issues of sentencing legitimacy and constitutionality have been examined by this court in the past and throws us well into a different level of criminal justice. Of course, finer propositions need a sublime perception for fuller appreciation as the learned Judges of this Court have invariably shown. Here, the proposition is- Mr. Tarkunde a .....

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sent pursuit, the only relevant point is whether rehabilitation is such a high component of punishment as to render arbitrary, irrational and therefore, unconstitutional, any punitive technique which slurs over prisoner reformation. We feel that correctional strategy is integral to social defence which is the final justification for punishment of the criminal. And since personal injury can never psychically heal, it is obdurate obscurantism for any legislative criminologists to reject the potent .....

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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 .....

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in their life in and out of jail. The rehabilitative follow-up was, perhaps, a flop. * * * * * Prison laws, now in bad shape, need rehabilitation; prison staff, soaked in the Raj past, need reorientation; prison houses and practices, a hangover of the die-hard retributive ethos, need reconstruction; prisoners, these noiseless, voiceless human heaps or for therapeutic technology, and prison justice, after long jurisprudential gestation, must now be re-born through judicial midwifery, if need be. .....

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-productive in the long run. The Model Jail Manual, prepared by the Indian Prison echelons plus a leading criminologist, Dr. Panakkal, back in 1970, has stated, right at the outset, in its Guiding Principles: Social reconstruction and rehabilitation as objectives of punishment attain paramount importance in a Welfare State The supreme aim of punishment shall be the protection of society. through the rehabilitation of the offender Imprisonment and other measures which result in cutting off an off .....

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aim at producing constructive changes in the offender, as would be having profound and lasting effects on his habits, attitudes, approaches and on his total value schemes of life. One of the subjects dealt with in the Manual is release planning . We need nat tarry long to tell the truth that every sinner has a future, 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 .....

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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 Parliament as legislative instrumentality, with the representatives of the people contributing their wisdom to its decisions, h .....

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essential divinity and ultimate retrievability by raising the level of consciousness of the criminal and society. We may avoid, for the nonce, theories like society prepares the crime, the criminal commits its; or that crime is the product of social excess or that poverty is the mother of crime . Judicial pronouncements are authentic guidance and so a few citations may serve our purpose. In Sobraj, this court observed: It is now well-settled, as a stream of rulings of courts proves, that deterre .....

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nmental purpose be legitimate and substantial, that Purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of loss drastic means for achieving the same basic purpose. Earlier, this court in Hiralal Mullick s case stated: The dignity and divinity, the self-worth and creative potential of every individual is a higher value of the Indian people, . . Again in M .....

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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 punis .....

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g and correctional success, a prisoner earns remission enough for release after serving 7 or 8 years. It makes us blush to jettison Gandhiji and genuflect before Hammurabi abandon reformatory humanity and become addicted to the eye for an eye barbarity: Said Churchill: The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. The mood and temper of our Constitution certify that arbitrary cruelty to .....

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rationality of arbitrary incarceratory brutality violative of Art. 14 invest the demand for a reformatory component in jail regimen with the status of a constitutional requirement. We need not prolong the judgment by substantiation of this proposition because the learned Solicitor General, with sweet reasonableness and due regard to the precedents of this court, Has not disputed that reform of the prisoner is one of the major purpose of punishment. The sequiter is irresistible. Any provision tha .....

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mation of the prisoner. Had his in-prison good behaviour been rewarded by reasonable remissions linked to improved social responsibility, nurtured by familial contacts and liberal parol, cultured by predictable, premature release, the purpose of habilitation would have been served. If law-s. 433A in this case rudely refuses to consider the subsequent conduct of the prisoner and forces all convicts, good, bad and indifferent, to serve a fixed and arbitrary minimum it is an angry flat untouched by .....

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ural-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 w .....

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n the agenda of Indian penal policy reform. The question is whether a 14-year term as a mandatory minimum, is so extremist and arbitrary as to become unconstitutional, even assuming the rehabilitatory recipe to be on our penological pharmacopea. We cannot go that far as judges, whatever our personal dispositions may incline us were we legislators. Two broad grounds to negative this extreme position strike us. Deterrence, as one valid punitive component has been accepted in Sunil Batra by a five- .....

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son may sometimes be needed. To change a man s mind distorted by many baleful events, many primitive pressures, many evil companies and many environmental pollutions, may not be an instant magic but a slow process-assuming that correctional strategies are awarely available in prisons, a consummation devoutly to be wished but notoriously rather victoriously, absent. We agree that many studies by criminologists highpowered commissions and court pronouncements have brought home the truth of the lie .....

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ot 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 .....

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tools, well-known and sophisticated experiments, neurological and psychological, claim to have achieved a break- through and has put across to the scientific world a Rehabilitation Index. This complex of tests reference to which, culled from a publication titled "Criminology and Consciousness, Series I," (developed by the Maharshi European Research University according to scientifically established standard measures of successful rehabilitation), as credentials enough to be taken cogn .....

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ually 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 To 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, including attempt to murder, homicide not amoun .....

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to the "either or" category where the court has the responsible discretion to impose death penalty or life imprisonment and actually awards only life imprisonment. Even in cases where the court sentences a convict to death the appropriate Government often by virtue of s. 433(a) reduces the lethal rigour to life term. These classes of cases are categorised separately by s. 433A. When the crime is so serious as to invite death penalty as a possible sentence, Parliament, in its wisdom, ta .....

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nd, 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, .....

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rology is not a forensic speciality. The womb of tomorrow may hold, like Krishna to Kamsa, lethal omen to the faith of to-day. We rest content with Bertrand Russel s words of scepticism. The essence of the Liberal outlook lies not in what opinions are held, but in how they are held: instead of being held dogmatically they are held tentatively, and with a consciousness that new evidence may at any moment lead, to their abandonment. This is the way opinions are held in science, as opposed to the w .....

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imit. If such convicts are out of its coils their cases must be considered under the Remission Schemes and Shortsentencing laws. The second plea, revolves round pardon jurisprudence , if we may coarsely call it that way, enshrined impregnably in Arts. 72 and 161 and the effect of s. 433A thereon. The power to remit is a constitutional power and any legislation must fail which seeks to curtail its scope and emasculate its mechanics. Thirdly, the exercise of this plenary power cannot be left to th .....

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riminal jurisprudence interdicts retroactive impost of heavier suffering by a later law. Ordinarily, a criminal legislation must be so interpreted as to speak futuristically. We do not mean to enter the area of 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 penal .....

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e frustrated by subsequent legislation or practices unless the language is beyond doubt). Liberality in ascertaining the sense may ordinarily err on, the side of liberty where the quantum of deprivation of freedom is in issue. In short, the benefit of doubt, other things being equal, must go to the citizen in penal statute. With this prefatory caution, we may read The Section. "Where a sentence of imprisonment for life is imposed on conviction of a person........ such person shall not be re .....

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y, any person who has been convicted before s. 433A comes into force goes out of the 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 commutation 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 unles .....

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on the present tense and the present-perfect tense may not be a clear indicator. The general rule bearing on ordinary penal statutes in their construction must govern this case. In another situation, interpreting the import of "has been sentenced" this court held that "the language of the clause is neutral" regarding prospectivity. It inevitably follows that every person who has been convicted by the sentencing court before December 18, 1978, shall be entitled to the benefits .....

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nviction 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. .....

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of the original judgment. We now move on to the second contention which deals with the power of remission under the Constitution and the fruits of its exercise vis a vis S. 433-A. Nobody has a case-indeed can be heard to contend-that Articles 72 and 161 must yield to S. 433-A. Cooley has rightly indicated that where the pardoning power is vested exclusively in the (top executive) any law which restricts The power is unconstitutional . Rules to facilitate the exercise of the power stand on a diff .....

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d 433) have verbal verisimilitude and close kinship with the earlier Code of 1898 (ss. 401 and 402). Likewise, the Constitutional Provisions of today were found even in the Government of India Act, 1935. Of course, in English constitutional law, the sovereign, acting through the Home Secretary, exercises the prerogative of mercy. While the content of the power is the same even under our Constitution, its source and strength and, therefore, its functional features and accountability are different .....

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nent holiday for certain classes of lifers and s. 433(a) suffers eclipse. Since ss. 432 and 433(a) are a statutory expression and modus operandi of the constitutional power, s. 433A is ineffective because it detracts from the operation of s. 432 and 433(a) which are the legislative surrogates, as it were, of the pardon power under the Constitution. We are unconvinced be, the submissions of counsel in this behalf. It is apparent that superficially viewed, the two powers, one constitutional] and t .....

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iously, 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 .....

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repository of the executive power but is incapable of acting except on, and according to, the advice of his council of ministers. The upshot is that the State Government, whether the Governor likes it or not, can advise and act under Art. 161, the Governor being bound by that advice. The action of commutation and release can thus be pursuant to a governmental decision and the order may issue even without the Governor s approval although, under the Rules of Business and as a matter of constituti .....

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was met from the learned Solicitor General whose sure grasp of fundamentals did not permit him to controvert the proposition, that the President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers save in a narrow area of power. The subject is now beyond controversy, this court having authoritatively laid down the law in Shamsher Singh s case. So, we agree, even without reference to Art .....

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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 consti .....

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he learned Solicitor General and, if we may say so rightly. Article 14 is an expression of the egalitarian spirit of the Constitution and is a clear pointer that arbitrariness is anathema under our system. It necessarily follows that the power to pardon, grant remission and commutation, being of the greatest moment for the liberty of the citizen, cannot be a law unto itself but must be informed by the finer canons of constitutionalism. In the Inter-national Airport Authority case this court stat .....

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odied in Article 14. It is now well settled as a result of the decisions of this Court in E. P. Royappa v. State of Tamil Nadu and Maneka Gandhi v. Union of India that Article 14 strikes at arbitrariness in State action and ensures fairness, and equality of treatment. It requires that State action must- not be arbitrary but must be based on some rational and relevant principle which is nondiscriminatory; it must not be guided by any extraneous or irrelevant considerations, because that would be .....

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r its largesse. Whatever its activity the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal. If we excerpt again from the Airport Authority case: Whatever be the concept of the rule of law, whether it be the meaning given by Dicey in his "The Law of the Constitution" or the definition give .....

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ary 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 wheth .....

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horised." The Government cannot be permitted, to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in , the matter of granting largesse and it cannot act arbitrarily. It does not stand in the same position as a private individual. It is the pride of our constitutional order that all .....

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with a favourable presumption that the did no wrong. If there is any presumption it is the other was, against the holders of power, increasing as the power increases. Likewise, Edmund Burke, the great British statesman gave correct counsel when he said: All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author, and Founder of society. Pardo .....

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sons in his State on his birthday or because a son has been born to him, it will an outrage on the Constitution to let such madness survive. We make these observations because it has been brought to our notice that a certain Home Minister s visit to a Central Jail was considered so auspicious an omen that all the prisoners in the jail were given substantial remissions solely for this reason. Strangely enough, this propitious circumstance was discovered an year later and remission order was issue .....

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of the visit of Home Minister Govt. Of India, to the said Jail and who has been convicted by the Civil Courts of Criminal Jurisdiction in Haryana State. A. BANERJEE Secretary to Govt. of Haryana Jails Department Dated: Chandigarh, the 18th July, 1978. Push this logic a little further and the absurdity will be obvious. No Constitutional power can be vulgarised by personal vanity of men in authority. Likewise, if an opposition leader is sentenced, but the circumstances cry for remission such as th .....

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he has joined the party in power or is a close relation of a political high-up. The court, if it finds frequent misuse of this power may have to investigate the discrimination. The proper thing to do, if Government is to Keep faith with the founding fathers, is to make rules for its own guidance in the exercise of the pardon power keeping, of course, a large residuary power to meet special situations or sudden developments. This will exclude the vice of discrimination such as may arise where two .....

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er-productivity by further prolongation of incarceration. But when is this critical point reached? Bitter verse burns better into us this die-hard error This too I know-and wise it were If each could know the same- That every prison that men build If built with bricks of shame, And bound with bars lost Christ should see How men their brothers maim. President Carter when he was Governor of Georgia, addressing a Bar Association, said: In our prisons, which in the past have been a disgrace to Georg .....

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n 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 r .....

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by s. 433A, conjuring up the cruel magic of 14 years behind barwhere each day is like a year, a year whose days are longas a solvent of the psychic crisis which is crimeogenic factor, blinking at the blunt fact that at least after a spell the penitentiary remedy aggravates the recidivist s malady. In the "Failure of Imprisonment" (a 1979 publication) the authors start off with the statement "The failure of imprisonment has been one of the most noticeable features of the current cr .....

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ciety. Furthermore, the heavy reliance upon prisons, particularly maximum security institutions with their emphasis upon costly security procedures, has led to an inordinate drain upon the overall resources devoted to the criminal justice area." Likewise, in many current research publications the thesis is the same. Unless a tidal wave of transformation takes place George Ellis will be proved right: There are many questions regarding our prison systems and their rehabilitative quality. Obse .....

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e than the man on the street. They want to live in peace and return to it their loved ones as soon as possible. They are not a different breed of human being or a distinct type of mentality. They are persons who have made mistakes. This point is made not to solicit pity but to bring attention to the fact that any individual could be caught in a similar web and find himself inside a pit such as Folsom Prison. The rule of law, under our constitutional order, transforms alt public power into respon .....

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n 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 releas .....

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hortsentencing schemes are humanising wheel of compassion and reduction of psychic tension. We have no hesitation to reject the notion that Arts. 72/161 should remain uncanalised. We have to direct the provisional acceptance of the remission and shortsentencing schemes as good guidelines for exercise of pardon power-a jurisdiction meant to be used as often and as systematically as possible and not to be abused, much as the temptation so to do may press upon the pen of power. The learned Solicito .....

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this method because it is immunised by Art. 161. We strongly suggest that, without break, the same rules and schemes of remission be continued as a transmigration of soul into Art. 161, as it were, and benefits extended to all who fall within their benign orbit-save, of course, in special cases which may require other relevant considerations. The wide power of executive clemency cannot be bound down even by self-created rules. One point remains to be clarified. The U.P. Prisoners Release on Prob .....

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n 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 o .....

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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 Code but upbraids the abandonment of the healing hope of remissions and release betimes. To legislate belongs to another branch but where justice is the subject the court must speak. There was some argument that s. 433A is understood to be a ban on parole. Very wrong. The Section does not obligate continuous fourteen years in jail and so par .....

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e negatived the need 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 Remission Rules and short-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 individually, in that behalf. 4. We .....

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d whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government. 7. We declare that s. 433A, in both its limbs (i.e. both types of life imprisonment specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years actual imprisonment will not operate against those whose cases were decided by the trial court before the 18th December, 1978 (directly or retroactively, as .....

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lease 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 applica .....

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ment, Central or State, guides itself by the selfsame rules or schemes in the exercise of its constitutional power. We regard it as fair that until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking- a desirable step, in our view-the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinquent .....

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censed enlargement will be reckoned for the purpose of the 14-year duration. Similar other statutes and rules will enjoy similar efficacy. 12. In our view, penal humanitarianism and rehabilitative desideratum warrant liberal paroles, subject to security safeguards, and other humanizing strategies for inmates so that the dignity and worth of the human person are not desecrated by making mass jails anthropoid zoos. Human rights awareness must infuse institutional reform and search for alternatives .....

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s to intensify inner tension and taboo intermissions of freedom is to do violence to language and liberty. 11 The length of this judgment (like the length of 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 pa .....

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as merited because the victim of the murder must be remembered and all soft justice scuttled to such heinous offenders. We are afraid there is a confusion about fundamentals mixing up victimology with penology to warrant retributive severity by the backdoor. If crime claims a victim criminology must include victimology as a major component of its concerns. Indeed, when a murder or other grievous offence is committed the dependants or other aggrieved persons must receive reparation and the social .....

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atology or make good The terrible loss caused by the homicide ? Victimology, a burgeoning branch of humane criminal justice, must find fulfillment, not through barbarity but by compulsory recoupment by the wrong-doer of the damage inflicted, not by giving more pain to the offender but by lessening the loss of the forlorn. The State itself may have its strategy of alleviating hardships of victims as part of Article 41. So we do not think that the mandatory minimum in s. 433A can be linked up with .....

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mportant features of the case and on the nature and character of the reformative aspect of penology as adumbrated by Brother Krishna Iyer, J. The dominant purpose and the avowed object of the legislature in introducing s. 433A in the Code of Criminal Procedure unmistakably seems to be to secure a deterrent punishment for heinous offences committed in a dastardly, brutal or cruel fashion or offences committed against the defence or security of the country. It is true that there appears to be a mo .....

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olution 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 a .....

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e question, therefore, is-should the country take the risk of innocent lives being lost at the hands of criminals committing heinous crimes in the holy hope or wishful thinking that one day or the other, a criminal, however dangerous or callous he may be, will reform himself. Valmikis are not born everyday and to expect that our present generation, with the prevailing social and economic environment, would produce Valmikis day after day is to hope for the impossible. Section 433A has advisedly b .....

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isoner for fourteen years is really begging the question because a detention for such a long term in confinement however comfortable it is, is by itself sufficient to deter every criminal or offender from committing offences so as to incur the punishment of confinement for a good part of his life. The effect of such a punishment is to be judged not from a purely ethical point of view but from an angle of vision which is practical and pragmatic. Crime has rightly been described as an act of warfa .....

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he point of view of reformative form of punishment "prolonged and indefinite detention is justified not only in the name of prevention but cure. The offender has been regarded in one sense as a patient to be discharged only when he responds to the treatment and can be regarded as safe (1) for the society. Explaining the material and practical advantages of long-term imprisonment Sir Leon Radzinowicz in his book The Growth of Crime aptly observes as follows: "Long imprisonment could be .....

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nslating and publishing the works of Marx and Engels. In Russia the manager of a mechanical repair shop was sentenced to death for theft of state property. In the Philippines a Chinese businessman was condemned to public execution by firing squad for trafficking in drugs. In Nigeria something like eighty people suffered the same fate within a year or two for armed robbery. All these sentences had, of course, their elements of deterrence and retribution. But they have in common another element, w .....

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g to this aspect of the matter observes thus: "Maximum penalties, upper limits to the punishment a judge may impose for various kinds of crime, are essential to any system which upholds the rule of law. Objections arise only when these penalties are illogical, inconsistent, at odds with people s sense of justice .. Thus the problem with maximum penalties is not whether they should be laid down but whether they can be made reasonably proportionate to people s assessment of the comparative gr .....

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that it can be achieved at all must come from the efforts of those in a position to know and to judge the particular offender." (p. 332) The existence of a distinct number of sentencing categories and a list of the offences within each should be of great aid in other words, in assuring consistency of treatment for present offences and in determining the appropriate sentence levels for NEW offences." (p. 340) This is exactly what s. 433A of the Code of Criminal Procedure seeks to achie .....

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ment 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 .....

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. In anticipation of the discussion to come of com promise theories of punishment, we can say that punishment may be justified by being both economically deterrent and also deserved." I am not at all against the reformative form of punishment on principle, which in fact is the prime need of the hour, but this matter has been thoroughly considered by Graeme Newman in his book The Punishment Response and where he has rightly pointed out that before the reformative form of punishment can succe .....

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st intentioned reforms often turn out to have unfortunate results. Thus, for example, in the area of criminal sentencing, a popular area at present, practical moves to reform should be based soundly on the historical precedents of criminal law and not on grand schemes that will sweep all of what we have out the door. There have been many examples of grand schemes that looked great on paper, but by the time they had been trans formed into legislation were utterly unrecognizable. It seems to follo .....

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he modern trends in penology there are very rare cases where the courts impose a sentence of death and even if in some cases where such sentences are given, by the time the case reaches this Court, a bare minimum of the cases are left where death sentences are upheld. Such cases are only those in which imposition of a death sentence becomes an imperative necessity having regard to the nature and character of the offences, the antecedents of the offender and other factors referred to in the Const .....

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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 happe .....

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all the citizens, if criminals are let loose and deterrent punishment is either abolished or mitigated. Secondly, while reformation of the criminal is only one side of the picture, rehabilitation of the victims and granting relief from the tortures and sufferings which are caused to them as a result of the offences committed by the criminals is a factor which seems to have been completely overlooked while defending the cause of the criminals for abolishing deterrent sentences. Where one person .....

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and punishment has been given to him by a procedure established by law which is free and fair and where the accused has been fully heard, no question of violation of Art. 21 arises when the question of punishment is being considered. Even so, the provisions of the Code of Criminal Procedure of 1973 do provide an opportunity to the offender, after his guilt is proved, to show circumstances under which an appropriate sentence could be imposed on him. These guarantees sufficiently comply with the .....

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also have to be exercised according to sound legal principles as adumbrated by Brother Krishna Iyer, J. I, therefore, think that any reduction or modification in the deterrent punishment would r far from reforming the criminal be counter-productive. Thus, on a consideration of the circumstances, mentioned above, the conclusion is inescapable that parliament by enacting s. 433A has rejected the reformative character of punishment, in respect of offences contemplated by it, for the time being in v .....

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2 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 remains that higher the power, the more cautious would be its exercise. This is particularly so because the present enactment has been passed by the Parliament on being sponsored by the Central Government itself. It is, therefore, manifest that while exercising the powers .....

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ideration of all the aspects of the matter. So viewed, I am unable to find any real inconsistency between s. 433A and Articles 72 and 161 of the Constitution of India as contended by the petitioners. I also hold that all the grounds on which the constitutional validity of s. 433A has been challenged must fail. I dismiss the petitions with the modification that s. 433A would apply only prospectively as pointed out by Brother Krishna Iyer, J. KOSHAL, J.-On a perusal of the judgment prepared by my .....

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, Fazal Ali, J., I am appending a very short note of my own. 2. That the four main objects which punishment of an offender by the State is intended to achieve are deterrence, prevention, retribution and reformation is well recognised and does not appear to be open to dissent. In its deterrent phase, punishment is calculated to act as a warning to others against indulgence in the anti-social act for which it is visited. It acts as a preventive because the incarceration of the offender, while it l .....

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in 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 be .....

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ent. They assert: "Neither reformers nor psychologists have, by and large, succeeded in reducing recidivism by the convicted criminals. Neither harshness nor laxity has succeeded in discouraging repeaters .... Criminality is not a disease admitting of cure through quick social therapy .. " The matter has been the subject of social debate and, so far as one can judge, will continue to remain at that level in the foreseeable future. 4. Secondly, the question as to which of the various ob .....

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as to demand the death penalty and nothing else, both as a preventive and a deterrent, and without regard to retribution and reformation. On the other hand, offences involving moral turpitude may call for reformation as the chief objective to be achieved by the legislature. In a third case all the four objects may have to be borne in mind in choosing the punishment. As it is, the choice must be that of the legislature and not that of the courts and it is not for the latter to advise the legislat .....

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f the provisions contained in section 433A to find out the extent to which the object of reformation is sought to be achieved thereby, the opinions of great thinkers, jurists, politicians and saints (as to what the basis of a penal provision should be) notwithstanding. 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 di .....

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