# ASHOK KUMAR ALIAS GOLU v. UNION OF INDIA AND ORS

- **Citation:** [1991] 2 S.C.R. 858
- **Court:** Supreme Court of India
- **Decided:** 1991-07-10
- **Bench:** A.M. Ahmadi, P.B. Sawant, S.C. Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ashok-kumar-alias-golu-v-union-of-india-and-ors-11165
- **Pages:** 26

## Headnote

c
D
Constitution of India, 1950: Articles 14 and 21, 245 & 246--
lnsertion of S. 433A into the Code of Criminal Procedure, 1973-
-Validity of-Colourable legislation or legislative fraud-Meaning ofDoctrine of pith and substance-Applicability of.
Articles 72, 161: Clemancy-Powers of-Sections 54 and 55
/PC-Section 433A Cr. P.C. and provisions of Remission RulesWhether subject to the overriding powers of,clemency.
Indian Penal Code, 1860; Sections 45, 54, 55 and 57-Fixing
terms of imprisonment-'Life imprisonmenf-Whether imprisonment
for full span of life.
Sections 54 and 55: Whether subject to overriding powers of Articles 72/ 161 of the Constitution of India.
E ,
Criminal Procedure Code, 1973: Section 433A-Insertion a/-
Whether a colourable legislation-Constitutional validity of-IPC
(Amendment) Bill not passed by Lok Sabha while passing Cr. P.C.
(Amendment) Bill-Government claiming that both the bills were
interlinked-Effect on the Amendment Bill passed, inserting S. 433APrisoners covered under the Section-Prisoners who were sentenced to
p
death by Courts, but whose sentence commuted to life imprisonment by
executive demency-Whether forms a distinct and separate class.
G
Sections 432, 433 and 433A: Release of prisoners under Remission Rules-Remittance. of sentencf"-Exercise of power under sections
432 and 433-Whether restricted by S. 433A.
·
Rajasthan Prisons (Shortening of Sentence§) Rules, 1950: Premature release of Prisoners-Whether subject to overriding powers of
Sections 432, 433 and 433A Cr. P. C. and Articles 72/ 161 of the Constitution of India, 1950.
H
Statutory Construction: Extern1,1I aid-Language of a provision
858
'
ASHOK KUMAR v. U.0.1.
859
plain and clear-Reading down the same with the aid of a Bill which has not
become an enactment-Whether could be resorted to.
A
The petitioner was. convicted for murder and sentenced to life
imprisonment, which was confirmed by the High Court. Later, he f'ded a
Writ Petition before the High Court for premature release on the plea
that he was entitled to be considered for release under the Rajasthan
B
Prisons (Shortening of Sentences) Rules, 1958 notwithstanding the
insertion of Section 433A in the Code of Criminal Procedure, 1973 with
efl'ect from 18.12.1978, just two days before his conviction. It was contended that Section 433A Cr. P.C. which places an embargo of 14years
imprisonment before premature release could not curtail the constitutional power vested in the Governor by virtue of Article 161 of the
Constitution. The High Court, dismissed the Writ Petition on the C
ground that the petitioner's representations to the Governor and State
Home Minister were pending consideration. However, the High Court
directed that the two representations of the petitioner should be disposed·
of within one month.
Unable to secure his release from the High Court as also from the
State Government, the petitioner f'ded the present Writ Petition before
this Court, contending that the insertion of Section 433A in the Code of
Criminal Procedure was invalid; that in the absence of guidelines under
Arts. 72/liil of the Constitution, Section 433A Cr. P.C. could not apply
D
to life convicts; that the Rajasthan Prisons (Shortening of Sentences)
E
Rules, 1958 would pervail over Section 433A Cr. P.C., and that the
constitution31 guarantee under Articles 14 and 21 was violated.
Dismissing the Writ Petition, this Court
HELD: 1.1. It is only when a legislature which has no power to F
legislate frames a legislation so camouflaging it as to appear to be within
its competence when it knows it is not, it can be said that the legislation
so enacted is colourable legislation. If in pith and substance the legislation does not belong to the subject falling within the limits of its power
but is outside it, the mere form of the legislation will not be determinate
of the legislative competence. [871C; 872C]
G
1.2. It is not a case of legislative incompetence to enact section
433A. No such contention was raised. Beside

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A
ASHOK KUMAR ALIAS GOLU
V.
UNION OF INDIA AND ORS.
JULY 10, 1991
B
[A.M. AHMADI, P.B. SAWANT AND S.C. AGRAWAL, JJ.]
c
D
Constitution of India, 1950: Articles 14 and 21, 245 & 246--
lnsertion of S. 433A into the Code of Criminal Procedure, 1973-
-Validity of-Colourable legislation or legislative fraud-Meaning ofDoctrine of pith and substance-Applicability of.
Articles 72, 161: Clemancy-Powers of-Sections 54 and 55
/PC-Section 433A Cr. P.C. and provisions of Remission RulesWhether subject to the overriding powers of,clemency.
Indian Penal Code, 1860; Sections 45, 54, 55 and 57-Fixing
terms of imprisonment-'Life imprisonmenf-Whether imprisonment
for full span of life.
Sections 54 and 55: Whether subject to overriding powers of Articles 72/ 161 of the Constitution of India.
E ,
Criminal Procedure Code, 1973: Section 433A-Insertion a/-
Whether a colourable legislation-Constitutional validity of-IPC
(Amendment) Bill not passed by Lok Sabha while passing Cr. P.C.
(Amendment) Bill-Government claiming that both the bills were
interlinked-Effect on the Amendment Bill passed, inserting S. 433APrisoners covered under the Section-Prisoners who were sentenced to
p
death by Courts, but whose sentence commuted to life imprisonment by
executive demency-Whether forms a distinct and separate class.
G
Sections 432, 433 and 433A: Release of prisoners under Remission Rules-Remittance. of sentencf"-Exercise of power under sections
432 and 433-Whether restricted by S. 433A.
·
Rajasthan Prisons (Shortening of Sentence§) Rules, 1950: Premature release of Prisoners-Whether subject to overriding powers of
Sections 432, 433 and 433A Cr. P. C. and Articles 72/ 161 of the Constitution of India, 1950.
H
Statutory Construction: Extern1,1I aid-Language of a provision
858
'
ASHOK KUMAR v. U.0.1.
859
plain and clear-Reading down the same with the aid of a Bill which has not
become an enactment-Whether could be resorted to.
A
The petitioner was. convicted for murder and sentenced to life
imprisonment, which was confirmed by the High Court. Later, he f'ded a
Writ Petition before the High Court for premature release on the plea
that he was entitled to be considered for release under the Rajasthan
B
Prisons (Shortening of Sentences) Rules, 1958 notwithstanding the
insertion of Section 433A in the Code of Criminal Procedure, 1973 with
efl'ect from 18.12.1978, just two days before his conviction. It was contended that Section 433A Cr. P.C. which places an embargo of 14years
imprisonment before premature release could not curtail the constitutional power vested in the Governor by virtue of Article 161 of the
Constitution. The High Court, dismissed the Writ Petition on the C
ground that the petitioner's representations to the Governor and State
Home Minister were pending consideration. However, the High Court
directed that the two representations of the petitioner should be disposed·
of within one month.
Unable to secure his release from the High Court as also from the
State Government, the petitioner f'ded the present Writ Petition before
this Court, contending that the insertion of Section 433A in the Code of
Criminal Procedure was invalid; that in the absence of guidelines under
Arts. 72/liil of the Constitution, Section 433A Cr. P.C. could not apply
D
to life convicts; that the Rajasthan Prisons (Shortening of Sentences)
E
Rules, 1958 would pervail over Section 433A Cr. P.C., and that the
constitution31 guarantee under Articles 14 and 21 was violated.
Dismissing the Writ Petition, this Court
HELD: 1.1. It is only when a legislature which has no power to F
legislate frames a legislation so camouflaging it as to appear to be within
its competence when it knows it is not, it can be said that the legislation
so enacted is colourable legislation. If in pith and substance the legislation does not belong to the subject falling within the limits of its power
but is outside it, the mere form of the legislation will not be determinate
of the legislative competence. [871C; 872C]
G
1.2. It is not a case of legislative incompetence to enact section
433A. No such contention was raised. Besides the question of vires of
section 433A of the Code has been determined by the Constitution
Bench of this Court in Maru Ram's case. This Court repelled all
the thrusts aimed at challenging the constitutional validity of section H
433A. [87IA]
A
B
860
SUPREME COURT REPORTS
[ 1991] 2 S.C.R.
1.3. It is no body's contention that Parliament was not competent
to amend the Criminal Procedure Code by which section 433A was
inserted. Whether or not the connecting Indian Penal Code (Amendment) Bill ought to have been cleared or not was a matter left to the
wisdom of the Lok Sabha. Merely because the Criminal Procedure Bill
was made law and the Indian Penal Code (Amendment) Bill was passed
by the Rajya Sabha did not obligate the Lok Sabha to clear it. The Lok
Sabha could have its own views on the proposed Indian Penal Code
amendments. It may agree with the executive's policy reflected in the
Bill, with or without modifications, or not at all. Merely because in the
subsequent instructions issued by the letter of July 10, 1979 and the
accompanying note, the Joint-Secretary had interlinked the two Bills,
C
the Lok Sabha was under no obligation to adopt the measure as such
representation could not operate as estoppel against it. It is obvious that
no question of ma/a fides on the part of the legislature was involved in
the enactment of one legislation and failure to enact another. There is
no question of 'legislative fraud' or 'colourable legislation' involved in
D
the backdrop of the. legislative history of section 433A of the Code of
Criminal Procedure. (8720-H; 873A]
1.4. In the present case if both the Bills had become law, then in
understanding or construing one legislation or the other, the scheme
common to both would he kept in view and he permitted to interact. But
where the linkage does not exist on account of the Indian Penal Code
E
(Amendment) Bill not having become law, section 433A cannot he read
down to apply to only those classes of capital offences to which it woold
have applied had the said Bill been passed by the Lok Sabha in the tenm
in which it was approved by the Rajya Sabha. The language of section
433A is clear and unambiguous and does not call for extrinsic aid for its
F
interpretation. To read down or interpret section 433A of the Code with
the ;lid of the changes proposed by the Indian Penal Code (Amendment)
Bill would tantamount to treatinK the provisions of the said Bilis
forming part of the Indian Penal Code, which is clearly impermissible. To put such an interpretation with the aid of such extrinsic
material would result in violence to the plain language of section
G
433A of the Code. [8730-F]
Maru Ram v. Union of India, (1981) 1SCR1196, followed.
K.C. Gajapati Narayan Deo v. State of Orissa, (1954) SCR 1 and
Sonapur Tea Co. Ltd. v. Must Mariruznessa, (1962] l SCR 724, relied
H
on.
>
·•
...
ASHOK KUMAR v. U.0.1.
861
State of Himachal Pradesh v. A Parent of a student of Medical
A
College, Simla, [1985] 3 SCC 169and W.R. Moram v. Deputy Commissioner of Taxation for N.S. W., [1940] AC 838, referred to.
2 .1. The law governing suspension, remission and commutation
of sentence is both statutory and constitutional •. The stage for the exercise of this power generally speaking is post-judicial, i.e., after the
judicial process has come to an end. The duty to judge and to award
appropriate punishment to the guilty is a judicial function which cul·
minates by a judgment pronounced in accordance with law. After the
judicial function thus ends the executive function of giving effect to the
judicial verdict commences. [873G-H; 874A]
2.2. One who could have been visited with the extreme punishment of death hut on account of the sentencing court's generosity was
sentenced to the lesser punishment of Imprisonment for life and another
who actually was sentenced to death but on account of executive
generosity bis sentence was commuted under section 433(a) for Imprisonment for life have been treated under section 433A as belonging to
that class of prisoners who do not deserve to be released unless they
have completed 14 years of actual incarceration. Thus, the effect of
section 433A is to restrict the exercise of power under sections 432 and
433 by the ,stipulation that the power will not be so exercised as would
enable the two categories of convicts referred to in section 433A to
freedom h4ifore they have completed 14 years of actual Imprisonment.
This is the legislative policy which is clearly discernible from the plain
language of section 433A of the Code. Such prisoners constitute a singie
class and have, therefore, been subjected to the uniform requirement of
suffering atleast 14 years of internment. [874G-H; 875A·C]
3. The expression 'life Imprisonment' must be read in the context
of section 45 IPC. Read so, it would ordinarily mean Imprisonment for
the full or complete span of life. Section 65, 116, 119, 120 and 511 of the
Indian Penal Code fix the term of Imprisonment thereunder as a fraction of the maximum fixed for the principal offence. It is for the purpose
of working out this fraction that it became necessary to provide under
section 57 that imprisonment for life shall be reckoned as equivalent to
imprisonment for 20 years. If such a provision had not been made it
w9uld have been impossible to work out the fraction of an indefinite
term. In order to work out the fraction of terms of punishment provided
in the above sections it was imperative to lay down the equivalent term
for life Imprisonment. [875G; 876C-E]
B
c
D
E
F
G
H
862
SUPREME COURT REPORTS
[1991] 2 S.C.R.
A
Gopal Godse v. State of Maharashtra, [i961] 3 SCR 440;
aff"mned.
B
c
D
4.1. Unless the sentence for life imprisonment is commuted or
remitted by the appropriate authority under the provisions of the rele·
vant law, a convict is bound in law to serve the entire life term in prison;
the roles framed under the Prisons Act or life statute may enable such a
convict to earn remissions but such remissions will not entitle him to
release before he has completed 14 years of incarceration in view of
section 433A of the Code unless of course power has been exercised
under Article 72/161 of the Constitution. Where a person has been
sentenced to imprisonment for life the remissions earned by him during
his internment in prison under the relevant remission rules have a
limited scope and must be confined to the scope and ambit of the said
roles and do not acquire significance until the sentence is remitted
under section 432, in which case the remission would be subject to
limitation of section 433A of the Code, or constitutional power has been
exercised nnder Articles 72/ 161 of the Constitution. ,[878D-E]
4.2. Articles 72 and 161 confer the clemency power of pardon,
etc., on the President and the State Governors, respectively. This
constitntional power would override the statutory power contained in
sections 432 and 433 and the limitation of section 433A of the Code as
well as the power conferred by sections .54 and 55 !PC. No doubt, this
E
power has to be exercised by the President/Governor on the advice of
his Council of Ministers. [880A·B]
4.3. Though in Maru Ram's case, this Court recommended the
framing of guidelines for the exercise of power under Articles 72/ 161 of
the Coustitntion of India, it had no binding effect on the Constitution
F
Bench which decided Kehar Singh's case. Nor has this Court said anything in Kehar Singh's Case with regard to uSing the provisions of extent Remission Rules as guidelinesforihe exercise of clemency powers. [881H; 882A]
Maru Ram v. Union of India, [1981) l SCR 1196; Kehar Singh v.
Union of India, [ 1989) l SCC 204; Bhagirath v. Delhi Administration,
G
[1985] 3 SCR 743 and Gopal Godse v. State of Maharashtra, [1961) 3
SCR 440, affirmed.
5. It is true that Articles 72/161 make use of two expressions
•remissions' with regard to punishment and 'remit' in relation to sentence but it is not proper to express any opinion as to the content and
H
amplitude of these two expressions in the abstract, in the absence of a
fact-sitnation. '[882B]
-+

ASHOK KUMAR v. U.0.1. (AHMADI, J.]
863
6.1. The hypothetical question whether it was permissible in law
to grant conditional premature release to a life convict even before
completion of 14 years of actual imprisonment, which release would
tantamount to the prisoner serving time for the purpose of section 433A
Cr. P.C., need not be answered without being fully aware oftbe conditions imposed for release. In each case, the question whether the grant
of conditional premature release answers the test laid down by this
Court in Maru Ram's case, would depend on the nature of the conditions imposed and the circumstances in which the order is passed and is
to be executed. No general observation can be made. [882C-H]
Maru Ram v. Union of India, [1981] 1SCR1196; referred to.
A
B
7. In the instant case, petitioner has not completed 14 years of C
actual incarceration and as such he cannot invoke sections 432 and 433
of the Code of Criminal Procedure. His continued detention is consis·
tent with section 433A of the Code and there is nothing on record to
show that it is otherwise illegal and void. The outcome of his clemency
application under the Constitution is not put in issue in the present D
proceedings if it has been reject•d, and if the same is pending despite
the directive of the High Court it would be open to the petitioner to
approach the High Court for the compliance of iis order. [883E·Ff
ORIGINAL JURISDICTION: Writ (Cr!.) Petition No. 96 of
1989.
E
(Under Article 32 of the Constitution of India).
Nand Lal, S.K. Bagga and Mrs. S.K. Bagga for the Petitioner.
V.C. Mahajan, Mrs. Indra Sawhney, Ms. A. Subhashini, F
Aruneshwar Gupta, Surya Kant and I. Makwana for the Respondents.
The Judgment of the Court was delivered by
AHMADI, J. Liberty is the life line of every human being. Life
without liberty is 'lasting' but not 'living'. Liberty is, therefore, conG
sidered one of the most precious and cherished possessions of a human
being. Any attempt to take liberties with the liberty of a human being
is visited with resistance. Since no human being can tolerate fetters on
his personal liberty it is not surprising that the petitioner Ashok
Kumar alias Golu continues to struggle for his liberty, premature
release, not fully content with the enunciation of the Jaw in this behalf H
864
SUPREME COURT REPORTS
[1991] 2 S.C.R.
A by this Court in Maru Ram v. Union of India, [1981] 1SCR1196.
The questions of law which are raised in this petition brought
under Article 32 of the Constitution arise upon facts _of which we give
an abridged statement. On the basis of a FIR lodged on October 21,
1977, the petitim1er was arrested on the next day- and he along with
B others was chargesheeted for the.murder of one Preln Nagpal. The
petitioner was tried and convicted for murder on December 20, 1978 in
Sessions C~se No. 32 of 1978 by the learned Sessions Judge,
Ganganagar, and was ordered to suffer imprisonment for life. His
appeal, Criminal Appeal No. 40 of 1979, was dismissed by the High
Court of Rajasthan. Since then he is serving time. It appears that he
C filed a Habeas Corpus Writ Petition No. 2963 of 1987 in the High
Court of Rajasthan at Jodhpur for premature release on the plea that
he was entitled to be considered for such release under the relevant
rules of Rajasthan Prisons (Shortening of Sentences) Rules, 1958,
(hereinafter alluded to as 'the 1958 Rules') notwithstanding the insertion of Section 433A in the Code of Criminal Procedure, 1973
D (hereinafter called 'the Code') with effect from December 18, 1978,
just two days before his conviction. His grievance was that he was
being denied the benefit of early release under the 1958 Rules under
the garb of the newly added Section 433A, on the ground that it places
a statutory embargo against the release of such a convict 'unless he has
served atleast 14 years of imprisonment'. He contended that the said
E
provision could not curtail the constitutional power vested in the
Governor by virtue of Article 161 of the Constitution which had to be
exercised on the advice of the Council of Ministers which advice could
be based on a variety of considerations including the provisions of the
1958 Rules. The writ petition was, however, dismissed by the High
Court on October 31, 1988, on the ground that it was premature
F
inasmuch as the petitioner's two representations, one to the Governor
and another to the State Home Minister, were pending consideration.
The High Court directed that t_hey should be disposed of within one
month. In this view of the matter the High Court did not deem it
necessary to consider the various questions of law raised in the petition
on merits. After the rejection of his writ petition by the High Court,
G
the petitioner through his counsel addressed a letter dated November
28, 1988 to the Governor inviting his attention to the earlier representation dated August 29, 1988 and requesting him to take a decision
thereon within a month as observed by the High Court. Failing to
secure his early release notwithstanding the above efforts, the
petitioner has invoked the extraordinary jurisdiction of this Court
H
under Article 32 of the Constitution.
~
1
ASHOK KUMAR v. U.0.1. [AHMADI, J.]
865
The petitioner's case in a nutshell is that under the provisions of
the 1958 Rules, a 'lifer' who has served an actual sentence of about 9
years and 3 months is entitled to be considered for premature release if··
the total sentence including remissions works out to 14 years and he is
reported to be of good behaviour. However, the petitioner contends,
his case for premature release is not considered by the concerned
authorities in view of the newly added section 433A of the Code on the
interpretation that by virtue of the said provision the case df a 'lifer'
cannot be considered for early release unless he has completed 14
years of actual incarceration, the provisions of sections 432 and 433 of
the Code as well as the 1958 Rules notwithstanding. According to him,
evt;n if the provisions of sections 432 and 433 of the Code do not come
into play unless a convict sentenced to life imprisonment has completed actual incarceration for 14 years as required by section 433A, the
authorities have failed to realise that section 433A cannot override the
constitutional power conferred by Articles 72 and 161 of the Constitutional on the President and the Governor, respectively, and the State
Government i.e,, the Council of Ministers, could advise the Governor
A
B
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to exercise power under Article 161 treating the 1958 Rules· as
guidelines. Since the petitioner had already moved the Governor
under Article 161 of the Constitution it was incumbent on the State
Government to consider his request for early release, notwithstanding
section 433A, and failure to do so entitled the petitioner to immediate
release as his continued detention was, wholly illegal and invalid. In
support of this contention the petitioner has placed reliance on the
E
ratio of Maru Ram's decision.
The petitioner brands section 433A of the Code to be a 'legislative fraud' inasmuch as the said provision was got approved by the
Parliament on the assurance that the said provision is complementary
to the various amendments proposed in the Indian Penal Code. In the
F
alternative it is contended that in any case this Court should by a
process of interpretation limit the· scope of section 433A of the Code to
those cases only to which it would have been limited had the legislation
proposing jlmendments in the Indian Penal Code gone through. In any
case after the decision of this Court in Maru Ram's case, the:efficacy of
section 433A is considerably reduced and the petitioner is entitled to G
early release by virtue of the power contained in Article 161 read with
the 1958 Rules even if guidelines are not formulated notwithstanding
the subsequent decision of this Court in Kehar Singh v. Union of India,
(1989] 1 SCC 204. Counsel submitted that after the decision of this
Court in Bhagirath v. Delhi Administration, [1985] 3 SCR 743 whereunder this Court extended the benefit of section 428 of the Code even H
A
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E
866
SUPREME COURT REPORTS
[ 1991] 2 S.C.R.
to life convicts, the ratio in Gopal Godse v. State of Maharashtra,
[1961] 3 SCR 440 had undergone a change. On this broad approach,
counsel for the petitioner, formulated questions of law which may be
stated as under:
1. Whether the insertion of section 433A in the Code was a
legislative fraud inasmuch as the connected legislation, namely,
the Indian Penal Code (Amendment) Bill XLII of 1972 did not
become law although passed by the Rajya Sabha as the IPC
(Amendment) Act, 1978, on November 23, 1978?
2. Whether on the ratio of Marn Ram's decision, in the absence
of any guidelines formulated by the State under Article 72 or 161
of the Constitution, section 433A of the Code would not apply to
life convicts and the 1958 Rules will prevail for the purpose of
exercise of power under Article 72 or 161 of the Constitution?
Inter-connected with this question, the following questions were
raised:
a) Whether Maru Ram's decision is in conflict with Kehar
Singh's J.udgment on the question of necessity or otherwise of
guidelines for the exercise of power under Article 72 and 161 of
the Constitution?
b) Whether the use of two expressions "remiss.ion" and "remit"
in Articles 72 and 161 convey two different meanings and if yes,
whether the content of power in the two expressions is different?
~
c) Whether the persons sentenced to death by Courts, whose
Fdeath sentence has been commuted to life imprisonment by
executive clemency, form a distinct and separate class for the
purpose of application of section 433A of the Code as well as for
the purpose of necessity (or not) of guidelines for premature
release in exercise of power under Articles 72 and 161, from the
persons who at the initial stage itself were sentenced to life impriG
sonment by CO!lrt verdict? And whether in the latter case guidelines are mandatory under Article 72 and 161 and a well designed
scheme of remission must be formulated if the constitutional
guarantee under Articles 14 and 21 is to be preserved?
d) Whether the whole law of remission needs to be reviewed
H
after Bhagirath's case wherein this Court held that imprisonment
I
ASHOK KUMAR v. U.O.l. [AHMADI, J.]
867
for life is also an imprisonment for a term and that a life convict
is entitled to set off under section 428 Cr. P .C.?
e) Whether it is permissible in law to grant conditional premature release to a life convict even before completion of 14 years
of. actual imprisonment notwithstanding section 433A of the
Code? If yes, whether the grant of such conditional release will
be treated as the prisoner actually serving time for the purpose of
section 433A of the Code?
First the legislative history. The Law Commission had in its 42nd
Report submitted in June, 1971 suggested numerous changes in the
Indian Penal Code (IPC). Pursuant theretq an Amendment Bill No.
XLII of 1972 was introduced in the Rajya Sabha on December 11,
1972 proposed wide ranging changes in the IPC. One change proposed
was to bifurcate section 302, IPC into two parts, the first part providing that except in cases specified in the second .part, the punishment
A
B
c
for murder will be imprisonment for life whereas for the more heinous
crimes enumerated in clauses (a) to (c), of sub-section (2) the punishD
ment may be death or imprisonment for life. A motion for reference of
the Bill to the Joint Committee of both the Houses was moved in the
Rajya Sabha on December 14, 1972 by the then Minister of State in the
Ministry of Home Affairs and was adopted on the same day. The Lok
Sabha concurred in the motion of the Rajya Sabha on December 21,
1972. The Joint Parliamentary Committee presented its report to the
Rajya Sabha on January 29, 1976 recommending changes in several
clauses of the Bill. While retaining the amendment proposed in section
302, IPC, it recommended inclusion of one more Clause ( d) after clause
E
(c) in sub-section (2) thereof and at the same time recommended deletion of section 303, IPC. It also recommended substitution of the
existing section 57, IPC, by a totally new section, the proviso whereto F
has relevance. The proposed proviso was as under:
"Provided that where a sentence of imprisonment for life "is
imposed on conviction of a person for a capital offence, or
where a sentence of death imposed on a person has been
commuted into one of imprisonment for life, such person G
shall not be released from prison unless he had served at
least fourteen years of imprisonment."
.
.
The reason which impelled the Committee to introduce the above
proviso was "that sometimes due to grant of remission even murderers
sentenced or commuted to life imprisonment were released at the end
H
A
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c
868
SUPREME COURT REPORTS
[1991] 2 S.C.R.
of 5 to 6 years." The Committee, therefore, felt that such a convict
should not be released unless he has served atleast 14 years of imprisonment. It is evident from the scheme of the aforesaid recommendations that the proviso was intended to apply to only those convicts who
were convicted for a capital offence (this expression was defined by
clause 15 of the Bill recommending substitution of section 40, IPC, as
'an offence for which death is one of the punishments provided by
law') or whose sentence of death was commuted into one of imprisonment fur life and not to those who were governed by the first part of the
proposed section 302, IPC. It was pointed out by counsel that similar
benefit would have accrued to offenders convicted for offences
covered under section 305, 307 or 396 if the proposed sections 305,
307(b) and 396(b) had come into being. That, contends the petitioner's
counsel, would have considerably narrowed down the scope of the
proposed proviso to section 57, IPC, and consequently the rigour of
the said provision would have fallen on a tiny minority of offenders
guilty of a capital offence. Pursuant to the recoinmendations made by
the Committee, two bills, namely, the IPC (Amendment) Bill, 1978
D and the Code of Criminal Procedure (Amendment) Bill, 1978, came to
be introduced, the former was passed with changes by the Rajya Sabha
on November 23, 1978 while the latter was introduced in the Lok
Sabha on November 28, 1978, and in the Rajya Sabha on December 5,
1978. The proposal to add a proviso to the proposed section 57, IPC
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did not find favour as it was thought that the said subject matter
appropriately related to Chapter XXXII of the Code and accordingly
the said provision was introduced as section 433A in the Code. While
the amendments to the Code became law with effect from December
18, 1978, the IPC amendments, though passed by the Rajya Sabha
could not be got through the Lok-Sabha and lapsed. It may here be
mentioned that the IPC Bill as approved by the Rajya Sabha contained
the proposal to divide section 302 into two parts, in fact an additional
clause was sought to be introduced in the second part thereof and
sections 305, 307 and 396 were also sought to be amended as proposed
by the Committee. This in brief is the legislative history.
In the backdrop of the said legislative history'· counsel for the ·
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petitioner argued that a legislative fraud was practised by enacting
section 433A of the Co<ie and failing to carry out the corresponding
changes in sections 302, 305, 307, 396, etc., assured by the passing of
the Indian Penal Code (Amendment) Act, 1978, by the Rajya Sabha
on November 23, 1978. According to him it is evident from the scheme
of the twin Amendment Bills that the legislative intent was to apply
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the rigour of section 433A of the Code to a small number of heinous
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ASHOK KUMAR v. U.0.J. [AHMADI. J.]
869
crimes which fell within the meaning of the expression capital offence.
It was to achieve this objective that section 302, IPC was proposed to
be bifurcated so that a large number of murders would fall within the
first part of the proposed provision which prescribed the punishment
of life imprisonment only and thus fell beyond the mischief of section
433A of the Code. To buttress his submission our attention was invited
to Annexure II to the petition which is a copy of the letter dated July
10, 1979, written by the Joint-Secretary in the Ministry of Home
Affairs to Home Secretaries of all the concerned State Governments
explaining the purport of the newly added section 433A. After explaining that section 57, IPC, had a limited scope, namely, calculating
fractions of terms of imprisonment only, he proceeds to state in
paragraph 3 of the letter as under:
"The restrictions imposed by section 433A applies only to
those life convicts who are convicted for offences for which
death is one of the punishments prescribed by law. In the
Indian Penal Code (Amendment) Bill, 1978 as passed by
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the Rajya Sabha and now pending in the Lok Sabha, D
section 302 is proposed to be amended so as to provide that
the normal punishment for murder shall be imprisonment
for life and that only in certain cases of aggravating
circumstances will the court have discretion to award death
sentences."
Then in paragraph 4 he proceeds to clarify as under:
"Even regarding these convicts the restriction imposed by
section 433A is not absolute for, the Constitutional power
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of the Governor under Article 161 to commute and remit
sentences remains unaffected and can be exercised in each F
case in which the exercise of this power is considered
suitable."
In paragraph 6 of the detailed note appended to the said letter, the
legal position was explained thus:
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"It may be pointed out that the restriction introduced by
section 433A does not apply to all life convicts. It applies
only to t&ose prisoners who are convicted of a capital
offence i.e. an offence for which death is one of the punishments prescribed by law. Once the Indian Penal Code
(Amendment) Bill becomes the law, offenders sentenced
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[1991] 2 S.C.R.
under proposed section 302(i) will not be covered by this
provision as the offence will not be a capital offence. Thus
in future the restriction introduced by st!ction 433A will not
be applicable to them and will, in effect, cover only a very
small number of cases. Even in this small number of cases
the restriction will not in any way curb the Constitutional
power to grant remission and commutation vested in the
President or the Governor by virtue of Articles 72 and
161."
There can be no doubt that by this letter it was clarified that section
433A of the Code will apply to only those convicted of a capital offence
arid not to all life convicts. It is equally clear that the said provision was
expected to apply to exceptionally heinous offences falling within the
definition of 'capital offence' once the Indian Penal Code (Amendment) Bill became law. Section 433A was, therefore, expected to deny
premature release before completion of actual 14 years of incarceration to only those limited convicts convicted of a capital offence, i.e.,
an exceptionally heinous crime specified in the second part of the
proposed section 302, IPC. Lastly it clarifies that section 433A cannot
and does not in any way affect the constitutional power conferred on
the President/Governor under Article 72/ 161 of the Constitution. It
cannot, therefore, be denied that this letter and the accompanying
note does give an impression that certain provisions of the Indian
Penal Code (Amendment) Bill were interlinked with section 433A of
the Code.
Assuming the Criminal Procedure Code (Amendment) Bill and
the Indian Penal Code (Amendment) Bill were intended to provide an
intergrated scheme of legislation, can it be said that the failure on the
part of the Lok Sabha to pass the letter renders the enactment of the
former by which section 433A was introduced in the Code, 'a legislative fraud' .as counsel has liked to call it or to use a more familiar
expression 'colourable exercise of legislative power'? Counsel submitted that section 433A was got introduced on the statute book by deception, in that, when the former Bill was made law an impression was
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given that the twin legislation which had already been cleared· by the
Rajya Sabha on November 23, 1978 would in due course be cleared by
the Lok Sabha also so that the application of section 433A would be
limited to capital offences only and would have no application to a
large number of_'lifers'. It must be conceded that such would have been the
impact if the Indian Penal Code (Amendment) Bill was passed by the
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Lok Sabha in the form in which the Rajya Sabha had approved it.
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ASHOK KIJMAR v. U.0.1. (AHMADI, J.]
871
This is not a case of legislative incompetence to enact section
433A. No sucli submission was made. Besides the question of vires of
section 433A of the Code has been determined by the Constitution
Bench of this Court in Maru Ram's case. This Court repelled all the
thrusts aimed at challenging the constitutional validity of section
433A. But counsel submitted that the question was not examined from
the historical perspective of the twin legislations. Counsel for the State
submitted that it was not permissible for us to reopen the challenge
closed by the Constitution Bench on the specious plea that a particular
argument or plea was not canvassed or made before that Bench. The
objection raised by counsel for the State Government is perhaps not
without substance but we do not propose to deal with it because even
otherwise we see no merit in the submission of the petitioner's
counsel. It is only when a legislature which has no power to legislate
frames a legislation so camouflaging it as to appear to be within its
competence when it knows it is ucit, it ~an be said ihat the legislation so
enacted is colourable legislation. In K.C. Gajapati Narayan Dea v.
State of Orissa, (1954] SCR 1 the Orissa Agricultural Income-tax
(Amendment) Act, 1950, was challenged on the ground of colourable
legislation or a fraud .on the Constitution as its real purpose was to
effect a drastic reduction in the amount of compensation payable
under the Orissa Estates Abolition Act, 1952. The facts were that a
Bill relating to the Orissa Estates Abolition Act, 1952 was published in
the Gazette on January 3, 1950. It provided that any sum payable for
agricultural income-tax for the previous year should be deducted from
the gross asset of an estate for working out the net income on the basis
whereof compensation payable to the estate owner could be determined. Thereafter on January 8, 1950, a Bill to amend the Orissa
Agricultural Income-tax, 1947, was introduced to enhance the highest
rate of tax from 3 annas to 4 annas in a rupee and to reduce the highest
slab from Rs.30,000 to Rs.20,000. The next Chief Minister, however,
dropped this Bill and introduced a fresh Bill enhancing the highest rate
to 12 annas 6 pies in a rupee and reducing the highest slab to Rs.15 ,000
only. On the Same becoming law it was challenged on the ground that
the real purpose of the legislation was to drastically reduce the compensation payable to the estate owners. Mukherjea, J., who spoke for
the Court observed as under:
"It may be made clear at the outset that the doctrine of
colourable legislation does not involve any question of
bona fides or ma/a [ides on the part of the legislature. The
whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If
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the legislature is competent to pass a particular law, the
motives which impelled it to act are really irrelevant. On
the other hand, if the legislature lacks competency, the
question of motive does not arise at all. Whether a statute
is constitutional or not is thus always a question of power."
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Thus the whole doctrine resolves itself into a question of competency
of the cqncerned legislature to enact the impugned legislation. If the
legislature has transgressed the limits of its powers and if such transgression is indirect, covert or disguised, such a legislation is described
as colourable in legal parlance. The idea conveyed by the use of the
said expression is that although apparently a legislature in passing the
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statute purported to act within the limits of its powers, it had in subs-
. lance and reality transgressed its powers, the transgression being veiled by what appears on close scrutiny to be a mere pretence or disguise.
In other words if in pith and substance the legislation does not belong
to the subject falling within the limits of its power but is outside it, t_he
mere form of the legislation will not be determinate of the legislative
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competence. In Sonapur Tea Co. Ltd. v. Must. Mazirunnessa, [1962] 1
SCR 724 it was reiterated relying on Gajapati' s case that the doctrine
of colourable legislation really postulates that legislation attempts to
do indirectly what it cannot do directly. Such is not the case before us.
It is no body's contention that Parliament was not competent to amend
the Criminal Procedure Code by which section 433A was inserted.
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Whether or not the connecting Indian Penal Code (Amendment) Bill
ought to have been cleared or not was a matter left to the wisdom of
the Lok Sabha. Merely because the Criminal Procedure Bill was made
law and the Indian Penal Code (Amendment) Bill was passed by the
Rajya Sabha did not obligate the Lok Sabha to clear it. The Lok Sabha
could have its own views on the proposed Indian Penal Code amendF
meats. It may agree with the executive's policy reflected in the Bill,
with or without modifications, or not at all. Merely because in the
subsequent instructions issued by the Jetter of July JO, 1979 and the
accompanying note (Annex. II) the Joint-Secretary had interlinked the
two Bills, the Lok Sabha was under no obligation to adopt the measure
as such representation could not operate as estoppel against it. Even
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the indirect attempt on the part of the High Court of Himachal
Pradesh in the ragging case to force the State Government to legislate,
State of Himachal Pradesh v. A Parent of a student of Medical College,
Simla, [ 1985] 3 SCC 169 was disapproved by this Court as a matter
falliqg,outside the functions and duties of the judiciary. It is, therefore; obvious that no question of ma/a fides on the part of the legislaH
lure was involved in the enactment of one legislation and failure to
.•
ASHOK KUMAR v. U.0.1. [AHMADI, J.]
873
enact another. There is no question of 'legislative fraud' or 'colourable
legislation' involved in the backdrop of the legislative history of
section 433A of the Code·as argued on behalf of the petitioner.
Counsel for the petitioner, however, tried to seek support from
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the Privy Council decision in W.R. Moram v. Deputy Commissioner of
Taxation for N.S. W., [1940] AC 838 Wherein the question to be
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considered was whether the legislative scheme was a colourable one
forbidden by section 5(ii) of the Australian Constitution. There was no
attempt to disguise the scheme as it was fully disclosed. The Privy
Council, while holding that the scheme was not a colourable legislation, observed that 'where there is admittedly a scheme of proposed
legislation, it seems to be necessary when the 'pith and substance' or C
'scope and effect' of any one of the Acts is under consideration, to
treat them together and to see how they interact'. But that was a case
where the scheme was carried out through enactments passed by the
concerned legislatures. It is in that context that the above observations
must be read and understood.