# MARU RAM ETC. ETC v. UNION OF INDIA & ANR - **Citation:** [1981] 1 S.C.R. 1196 - **Court:** Supreme Court of India - **Decided:** 1980-11-11 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maru-ram-etc-etc-v-union-of-india-anr-8236 - **Pages:** 66 ## Headnote 1.196 A MARU RAM ETC. ETC. v. UNION OF INDIA & ANR. November 11, 1980 B [Y. v. CHANDRACHUD, C.J., P. N. BHAGWATI, v. R. KRISHNA IYER, c D .S. MURTAZA FAZALALI AND A. D. KOSHAL, JJ.J Prison-Prisoner Le?islatio11 vis-a-vis-Code of Criminal Procedure Code, 1973 (Act ll of 1974)-Section 433A. as introduced with effect from 18th J)ecember, 1978, prescribing a minimum of 14 years' of actual imprisonment for the two types of lifers, vires of--Pardon J11rispmde11ce-EfJects of Sectil1~ 433A 011 Articles 72 and 161-Whetlltr section 433A riolates Article 14 being wh in the jail library. [1250 B-CJ. 14. Section 433A does not forbid parole or other release within the 14-year '5pan. So to interpret the Section as to intensify inner tension and taboo intermissions of freedom is to do violence to language and liberty. [1250 C-0] F G H 1198 SUPREME COURT REPORTS [1981] 1 S.C.R .. A 15. Parliament has the legislative competency to enact foe providons in section 433A of Criminal Procedure Code. [1214 F] c D E It is trite law that the Lists in the Seventh Schedule broadlv delineate the· rubrics of legislation and must be interpreted liberally. Articie 246(2) gives power to Parliament to make laws with respect to any of the matters ennmerated in List III. Entries I and 2 in List ill (especially Entry 2) are abundantly comprehensive to cover legislation such as is contained in section 433A, which merely enacts a rider, as it were, to ss. 432 and 433(a). A legislation on the topic of "Prisons and Prisom,rs" cannot be read into section 433A. On the other hand, section 433A sets a lower limit to the execution nf punishment provided by the Penal Code and is appropriately placed in the Chapter on "Exe-· cution and Sentences" in the Procedure Code. Once the irr~futable positi,,n that the execution, remission and commutation of sentences primarily fall, as in the earlier 1898 Code, within the 1973 Procedure Code (Chapter XXIII) is accepted, section 433A can be rightly assigned to Entry 2 in List I Ir a~ a cognate provision integral to remh;sion and commutation, as it sets limits to the power conferred by ss. 432 and 433. This limited prescription as a proviso tr, the earlier prescription relates to execution of sentence, not conditions in pris.m or regulation of prisoner's life. The distinction between prisons and prisoners on the one hand and sentences and their execution, remission and commutation on the other, is fine but real. To bastardize section 433A as outside the legitimacy of Entry 2 in List III is to breach all canons of constitutional' interpretation of legislative Lists. [1214 B-F] 15. (i) The power of the State to enact the Jaws of rem1ss1~ns and shortsentencing under Entry 4 of List II is, subject to Articles 246(1) and (2) and so parliamentary legislation prevails over State legislation. Moreover, Article · 254 resolves the conflict in favour of parliamentary legislati:Jn. If a State mtends to legislate under Entry 2 of List III such law can prevail in tha! State as against a parliamentary legislation only if Presidential assent has· been obtained in terms of Article 254(2). In the present case, section 433A mmt hold its sway over any State legislation even regarding "prisons and pr;soners", if its provisions are repugnant to tbe Central Law. [1214G, 1215 B·C] F 15 (ii). Remission schemes do not upset sentences, but merely provide re· wards and remissions for in prison good conduct and the like. If the sentence is life imprisonment remissions,, as such. cannot help. If the sentence is for a fixed term, remissions may help, but section 433A does not come in the way. Thus incompatibility between section 433A and remission provisions exists. [1215 C-D] G 16. The fasciculus of clauses (ss. 432, 433 and 433A), read os a p1ckage, makes it clear that while the Code does confer wide powers of remission and' commutation of sentences, it er.1phatically intends to carve out an extreme cate· gory from the broad generosity of such executive power. 'fhe non '>bstante clause, in terms, excludes section 432 and the whole mandate of the rest of the Section necessarily subjects the operation of section 433(a) to a serious restric· tion. This embargo directs that commutation in such cases shall not reH duce the actual duration of imprisonment below 14 years.· Section 43 1.A does declare emphatically an imperative intent to keep imprisoned for at least 14 years those who fall within the sinister categories spelt out in the orerativ.e. part of section 433A. [1216 B·C] \,__ MARU RAM V. UNION OF INDIA 1199' It. is elementary that a non obstante tail should not wag a statutory dog. A non obstimte clause cannot whittle down the wide import of the principal part. The enacting part is clear and the non obstante clause cannot cut down its scope. [1217 A-BJ Aswini Kumar Ghose and Another v. Aravinda Bose & Another, [1953] S.C.R. 1., followed . . To read down section 433A to give overriding effect to the Remission Rules of the State would render the purposeful exercise a ludicrous futility. If "Laws suffer from the disease of Language'', courts must cure the patient, not kill him. · "Notwithstanding the "notwithstanding ...... " in section 433A, the Remission Rules and like provisions stand excluded so far as "lifers" punished for capital offences are concerned. [1217 D-E] 17. Sentencing is a judicial function but the execution of the sentenc~. after th~ ci;~tts. pronouncement, is ordinarily a matter for the Executive under the Procedure Code, going by Entry 2 in List III of the Seventh Scheduk. Once a sentence has been imposed, the only way to terminate it before the stipulated term is by action under ss. 432/433 of the Code or Articles 72/161. And if the latter power under the Constitution is not invoked, the only source of salvatiqn is the play of power under ss. 432 and 433(a) so far as a 'lifer' is concerned. No. release by reduction or remission of sentence is possible under the corpns juris as it stands, in any other way. The legislative power of the State under Entry 4 of List II, even if it be stretched to snapping point, can deal 0nly with Prisons and Prisoners, never with truncation of judicial sentences. Remissions by way of reward or otherwise cannot cut down the sentence as such and cannot grant final exit passport for the prisoner except by Government action under section 432(1). The topic of Prisons and Prisoners does not cover release by way of reduction of the sentence itself. That belongs to Criminal Procedure in Entry 2 of List III although when the sentence. ·is for a fixed term and remissjon plus the period undergone equal that term the prisoner may win his freedom. Any amount of remission to result in manumission requires action under sec· tion 432(1), read with the Remission Rules. That is why Parliament, tracing the single source of remission of sentence to Section 432, blocked it by t':te non obstante clause. No remission, however long, can set the prisoner free at the instance of the State, before the judicial sentence has run out, save by action under the constitutional power or under section 432. So read, section 433A achieves what it wants-arrest the release of certain classes 0f "lifers" before a certain period, by blocking of section 432. [1217 G-H, 1218 A-El Sentencing is a judicial function and whatever may be done in the matter E y of executing that sentence in the shape of remitting. commuting or otherwise abbreviating, the Executive cannot alter the sentence itself. Remission cannot detract from the quantum or quality of sentence or its direct and side-effects except to the extent of entitling the prisoner to premature freedom if the deducG tion following upon the remission has that arithmetic effect. The nature of a life sentence is incarceration until death, judicial sentence of imprisonment for life cannot be in jeopardy merely because of long accumulation of remissions. Release would follow only upon an order under section 401 of the Crimir.al Procedure Code, 1898 (corresponding to s. 432 of the 1973 Code) by the appro· priate Government or on a clemency order in exercise of power under Article 72 or 161 of the Constitution. [1218 F-G. 1219H, 1220A, E-FJ H Saraf Chandra Rabha and Ors. v. Khagendranath Nath & Ors., S.C.R. 133; Gopal Vinayak Godse v. State of Maharashtra & Ors., S.C.R. 440, referred to. [1 Q(l] [1961] 2 3 1200 SUPRE:\1E COURT REPORTS [1981] 1 S.C.R. A B ,c E. F. {;) H 18. Section 433A escapes the exclusion of section 5 of the Code of Criminal Procedure. A thing is specific if it is explicit. It need not be "express". What is precise, exact, definite and explicit, is specific. Sometimes, what is specific may also be special but yet they are distinct in semantics. From this angle, the Criminal Procedure Code is a· general Code. The remission rules an· special. laws but section 433A is a specific, explicit, definite provision dealing with a particular situation or narrow class of cases, as distinguished from the general run of cases covered by section 432 Crl. P.C. Section 433A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicitly to a particularised treatment. Therefore, section 433A applies in preference to any special or local law because section 5 expressly declares that specific provisions, if any, to the contrary will prevail over any special or .local law. [1225 G-H, 1226 A·C] Hakim Khuda Yar v. Emperor, A.I.R. 1940 Lah. 129; Baldeo & Ors. v. Emperor, A.I.R. 1940 All. 263, approved. ' Bikram Sardar & Ors. v. Emperor, A.I.R. 1941 Born. 146, dissented from. In Re Net Book Agreement, 1951 [1962] 3 All E.R. QBD 751, quoted with· approval. 19. It is trite law that civilised criminal jurisprudence interdicts retroactive impost of heavier suffering by a later law. Ordinarily, a criminal legislation must be so interpreted as to speak futuristically. While there is no vested right. for any convict who has received a judicial sentence to contend that the penalty should be softened and that the law which compels the penalty to be carried out in full cannot apply to him, it is the function of the court to adopt ~ liberal construction when dealing with a criminal statute in the ordimry course of things. This humanely inspir<:d canon, not applicable to certain terribly antisocial categories may legitimately be applied to s. 433A. (The sonnd rationale is that expectations of convicted citizens of regaining freedom on existing legal practices should not be frustrated by subsequent legislation or practice 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 i~ in .issue. In short, the benefit of doubt, other things being eqnal, must go 1;_; the citizen in penal statute, [1236 A-DJ The plain meaning of "is" and "has been" is "is" and '"has been" only and, therefore, these expressions refer to "after this Section comes into force". "Is" and "has" are not words which are weighed in the scale of grammer nicely enough in this Section and, therefore, over-stress on the prese11t tense and the present-perfect tense may not be a clear indicator. The general rule bearing on ordinary penal statutes in their constrnction must govern this case. [1236 F, G, H, 1237 A] Boucher Pierre Andre v. Supdt. Central Jail, Tihar, [1975] 1 ~.C.R. 192 at 195, followed. 20. When a person is convicted in appeal, it follows that the appellat~ court has exercised its power in the place of the original court and the guilt, conviction and sentence must be substituted for and shall have retroactive effect from the date of judgment of the trial court. The appellate conviction must relate back to the date of the trial court's verdict and substitute it. In this view, even if the appellate court reverses an earlier acquittal rendered before section 433A came into force but allows the appeal and convicts the ~ccused 'after section 433A came into force, such persons will also be entitled to th~ benefit of the remission system prevailing prior to section 433A on the. basis .,. MARU RAM V. UNION OF INDIA 1201 which has been explained. An appeal is a continuation of an appellate judg· A ment as a replacement or the original judgment. [1237 D-F] · 21. The President is symbolic, the Central Government is the reality even as the Governor is the formal head and sole i;epository 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 not under Article 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 foe Governor's approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligatory that the signature of the Governor should auth· orise the pardon, commutation or release. The position is substantially the same regarding the President. It is not open either to the President or the Governor to take independent decision or direct release or refuse release of any one of their own choice. It is fundamental to the Westminster system that the Cabinet rules and the Queen reigns. The President and the Governor, be they ever so high in textual terminology, are but functional eurhemisms promptly acting on and only on the advice of the Council of Ministers save in a n·arrow area of power. So, even without reference to Article 367(1) and ss. 3(8)(b) and 3(60)(b) of the General Clauses Act, 1897, that, in the matter of exercise of the powers under Articles 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice of the ministers. Article 74, after the 42nd Amendment silences speculation and obligates compliance. Tt>e Gov· ernor vis a vis his Cabinet is no higher than the President save in a narrow area which does not include Article 161. The constitutional conclusion is that the Governor is but a shorthand expression for the State Government and · the President is ·an abbreviation for the Central Governmnet. [1239 C-H, 1240 A-Bl Shamsher Singh & Anr, v. State of Punjab. [1975] 1 S.C.R. 814, applied. 22. Victimology, a burgeoning branch of humane criminal justice, must find fulfilment, not through barbarity but by compulsory recoupment by the wrong-doer of the damage inflicted, not by giving more pain to the offender but by lessening the loss of the forlorn. The State itself may have its strategy of alleviating hardships of victims as part of Article 41. So the mandatory minimum in section 433A cannot be linked up with the distress of the dependants. [1251 B-C] Observations: 1. Parliamentary taciturnity does not preclude forensic examination about legislative competency. Nor does it relieve the Supreme Court, as se11tinel on the qui ~ive, from defending fundamental rights against legislative aggression, if any flagrant excess were clearly made out. [1211 F-GJ 2. Courts cannot abdicate constitutional obligations even if Parliament be pachydermic and politicians indifferent, with great respect, ordinarily th~y ~re not. Indeed, Judges must go further, 011 account of their accountabilitv to the Constitution and the country and clarify that where constitutional liberties are B D E G imperilled judges cannot be non-aligned. But where counterfeit constitutional -H .claims are pressed with forensic fervour courts do not readily oblige by con· · senting to be stampeded. Justice is made· of sterner stuff, though its core is -lik:o "the gentle rain from heaven" being interlaced with mercy. [1213 F-H] .1202 SUPREME COURT REPORTS [1981] 1 S.C.R. A Per Fazal Ali, J. (Concurring)- B !. Section 433A of the Code is constitutionally valid. Section 433A is actually a social piece of legislation which by one stroke seeks to prevent dangerous criminals from repeating offences and on the other protects the society from harm and distress caused to innocent persons. [1256 B-C] ~ 2. The dominant purpose and the avowed object of the legislature in introducing section 433A in the Code of Criminal Procedure unmistakably seems to be to secure a deterrent punishment for heinous offences committed in a dastardly, brutal or cruel fashion or offences committed against the defence or security of the country. [1251 E-F] Section 433A has advisedly been enacted to apply to a very smali sphere and includes within its ambit only offences under sections 121, 132, 302, 303, 396 etc., of the Indian Penal Code, that is to say, only those offence~ where death or life imprisonment are the penalties but instead of death life imprisonment is given or where a sentence of death is commuted to that of life imprisonment. Section 433A when it confines its application only to these categories of offences which are heinous and amount to a callous outrage on humanity, has taken care of the fact that a sentence out of proporticn of the crime is extremely repugnant to the social sentiments of a civilized society. [1252 D-E, 1253 H, 1254 A-B] D 3. The deterrent punishment prevents occurrence of offences by--(i) making E it impossible or difficult for an offender to break the law again, (ii) by deterring not only the offenders but also others from committing offences, and (iii) punishment or for that matter a punishment in the form of a long-term imprisonment may be a means to changing a person's character or personality so that out of some motivation or reasons of a personal or general nature, the offender might obey the law. [1254 G-H, 1255 Al The Parliament in its wisdom chose to act in order to prevent criminals committing heinous crimes from being released; through easy remissions or substituted form of punishments without undergoing at least a minimum period of impiisonment of fourteen y•;ars which may in fact act as a sufficient dNerrent which may prevent criminah from committing offences.. [1256 ErF] 4. No dciubt, the reformative form of punishment on principle, is in fact the prime need of the hour, but before it can succeed people must be properly educated and realise the futility of committing crimes. [1255 E-F] In the present distressed and disturbed atmosphere if deterrent punis\lment is not resorted to, there will be complete chaos in the entire country and criminals will be let loose endangering the lives of thousands of innocent people of our country. In spite of all the resources at its commands, it will be, difficult for the State to protect or guarantee the life and .liberty of all the .citizens, ;G if criminals are let loose and deterrent punishment is either abolished or mitigated. Secondly, while reformation of the criminal is only one side of the picture, rehabilitation of the victims and granting relief from the tortures and ·suffering which are caused to them as a result of the offences committ~d by ·the criminals is a factor which seems to have been completely overlooked while defending the cause of the criminals for abolishing deterrent sentences. [1256 H, 1257 A-B] H 5. A person who has deprived another person completely of his liberty for ever and has endangered the liberty of his family has no right to ask the court to uphold his liberty. l.iberty is not a one-sided concept, nor does Article 21 of the Constitution contemplate such a concept. If a person commits MARU RAM V. UNION OF INDIA 1203 oJl cnmmal offence and punishment has been given to him by a procedure est'.lblished by law which is free and fair and where the accused has been fully beard, no question of violation of Article 21 arises when the question of punishment is being considered. Even so, the provisions of the Code of Criminal ·Procedure of 1973 do provide an opportunity to the offender, after his guilt is .proved to show circumstances under which an appropriate sentence could be imposed on him. · These guarantees sufficiently comply with the provfoions of Article 21. Thus, while considering the problem of penology courts should not overlook the plight of victimology and the sufferings of the people who ·die, suffer or are maimed at the hands of criminals. [1257 C-E] 6. In cases where section 433A applies, no question of reduction of sentence arises at all unless the President of India or the Governor choose to exercise •their wide powers under Article 72 or Article 161 of the Constitution which also have to be exercised according to sound legal principles. Any reduction or modification in the deterrent punishment would far from reforming the ·criminal be counter-productive. (1257 F-G] 7. Parliament by enacting section 433A has rejected the reformative charac- ·ter of punishment in respect of offences contemplated hy. it, for the time being in view of the prevailing conditions in our country. It is well settled that the Jegislature understands the needs and requirements of its people much better ·than the courts because the; Parliament consists of the elected Tepresentatives of .·the people and if the Parliament decides to enact a legislation for the benefit of the people, such a legislation must be meaningfully constmed and given effect to so as to subserve the purpose for which it is meant. [1257 G-H, 1258 A-8] 8. There is no real inconsistency between section 433A and Articles 72 and I 61 of the Constitution of India. [1258 El Doubtless, the President of India under Article 72 and the State Governoment under· Article 161' have absolute and unfettered powers to grant pardon, reprieves, rem1ss10ns, etc. This power can neither be altered, modified or interfered with by any statutory provision. But, the fact remains that higher the power, the more cautious would be its exercise. This is particularly so because the present enactment has been passed by the Parliament on being sponsor- •ed by the Central Government itself. It is, therefore, manifest that while exer- . cising the powers under the aforesaid Articles of the Constitution neither the 'President, who acts on the advice of the Council of Ministers. nor the State ·Government is likely to overlook the object, spirit and philosophy of section · 433A so as to create a conflict between the legislative intent and the executive power. It cannot be doubted as a proposition of law that where a power i> vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all the oaspects of the matter. [1258 B-DJ Per Koshal, J. (Generally concurring) 1. The contention that the main object of every punishment must be reformation o~ the offender and that the othe.r objects-deterrence, prevention ·and retribution-should be relegated to the background and be brought into play only incidentally is not correct for three reasons: (i) There is no evidence that all or most of the criminals who are punished are amenable to reformation. The matter has been the· subject of social debate and so far as one can judge, will continue to remain at that level in the fores,eeable future; (ii) .The ·question as to which of the various objects of punishment should be the basis A B c E F G H 1204 SUPREME COURT REPORTS [1981] 1 S.C.R. A B c D E F of a penal provision has, in ttw very nature of things, to be left to the Legisla· ti.ire and it is not for the comts to say which of them shall be given priority, preponderence or predominance. As it is, the choice must be that of the legislature and not that of the courts and it is not for the latter to advise the legislature which particular object shall be kept in focus in a particular 5ituation. Nor is it open to the courts to be persuaded by their own ideas about the propriety of a particular purpose being achieved by a piece •.1f penal legislation, while judging its constitutionality. A contrary proposition would mean the stepping of the. judiciary into the field of the legislature which is not permissible. It is thus out~ide the scope of the inquiry undertaken by thi~ Court into the vircs of the provisions contained in section 433A to find out the extent to which the object of reformation is sought to be achieved thereby, the opinion of great thinkers, jurists, politicians and saints (as to what the basis o1 a penal provision should be) notwithstanding; (iii) A careful study of the Penal Code brings out clearly that the ·severity of each punishment sanctioned by the law is directly proportional to the seriousness of the offence for whi~h it is awarded. This is strongly indicative of reformation not being the fo:iremost object sought to .be achieved by the penal provisions adopted by the legisla· ture. A person who has committed murder in the heat of passion may not repeat his act at all later in .life and the reformation process in his case need 'not be time-consuming. On the other hand, a thief may take long to shed the propensity to deprive othcrn of their good money. If the reformative aspect of punishment were to be given priority and predominance in every case the murderer may deserve, in a given set of circumstances, no more than a six months' period of incarceration while a thief may have to be trained in•o better ways of life from the social point of view over a loog perioJ. and th~ death penalty, the vires of which has been recently upheld by a majority of four in a five Judges Bench of this Court in Bachan Singh and others v. State of Punjab and others .. [1980] 2 sec 684, would have to be exterminated from Indian criminal law. The argument based on the object of reformation having to be in the forefront of the legislative purposes behind punishment is, therefore, fallacious. [1259 B-D, G-H, 1260 A·H, 126! A] 2. The contents of section 433A of the Code of Criminal Procedure (or, for that matter any other pe:nal provision) cannot be attacked <'n the grouncl that they are hit by Article 14 of the Constitution inasmuch as they are arb!· trary or irrational because they ignore the reformative aspect ~f punishment. [1261 A-BJ ORIGINAL JURISDICTION: Writ Petitions Nos. 865/79, 641/80, 409, 783, 695, 690, 747, 4346 of 1980, 147179·, 1860/80, 2389, 4115, 1365, 457, 869, 4311-12, 813, 2505, 1659, 3784-94, 2602-· G 10, 4376-91, 4392-95, 4404, 1177 of 1980. (Under Article 32 of the Constitution of India) Dr. L. M. Singhvi, S. K. Bagga and Mrs. S. Bagga and Nand Lal for the Petitioners in WPs 865 and 695. D. R. Mridul, Nami Chand Chowdhary and Sushil Kumar Jain H for the Petitioners in WP 641. A. K. Sen, ( 409) & Uma Datt for the Peti~ioners in WPs. 409 and 1365. MARU RAM V. UNION OF INDIA 11105 L. M. Singhvi. S. K. lain, A. S. Sohal, Sushi! Kumar and A L. K. Pandey for the Petitioners in 783. (WP) R. K. Garg & Mrs. Urmila Sirur for the Petitioners in WP 690. K. B. Rohatgi and S. M. Ashri for the Petitioners in WP 747. S. N. Kacker, R. N. Kataria, G. K. Bansal & B. S. Malik for the Petitioners in WPs. 4311-12, 4376-95, 3784-94, 1177. B P. R. Mridul and H. K. Puri-for the Petitioner in WP 147. S. S. Khanduja for the Petitioner in WP 1860. "')..___ Arun Madan for the Petitioner in WP 2389. A. S. Sohal, M. C. Dhingra and P. N. Gupta for the Petitioner in WP 457. Cl: ., R. L. Kohli and R. C. Kohli for ithe Petitioner in WP 869. ~ P. R. Mridul, A. S. Sohal, M. C. Dhingra and L,alit Gupta for the Petitioner in WP 813. L. N. Gupta for the Petitioners in WP 2505. Srinath Singh, Vijay K. Jindal, Sarva Mitter and M. G. Gupta for the Petitioners in WP 1659. A. P! Mohanty & S. K. Sabharwal, Mr. C. P. Pandey and Lalit Gupta for the Petitioners in WP 2602-10. R. K. Garg, V. J. Francis and Sunil K. Jain for the Petitioners D in WP 4404. E . V. M. Tarkunde, Govind Mukho~y and P. K. Gupta for the ·Petitioners in WP 4115. Petitioner in 4346 (WP) in person K. Parasaran, Sol. General, M. K. Banerjee, Addl. Sol. Genl. and N. Net.tar and Miss A. Subhashini for R. 1 in all WPs. except in 457 & 869. Badridas Sharma for r. 2 in 865 & r. in 147. 0. P. Rana, S. C. Maheshwari and R. K. Bhatt for State of U.P. in 865, 4392-95, 4376-91. 0. P. Sharma and M. S. Dhillon for r. in 457 & 869. M. C. Bhandare, and M. N. Shroff for r. (State) in WP 2505. M. Veerappa for other appearing rr. in WP 2602•10. P. Ram Reddy and G. N. Rao for r. in WP 4115. F G The Judgment of Hon'ble C.J., Bhagwati, and Krishna Iyer, JJ. H ~as delivered by Iyer, J. Fazal Ali and Koshal, JJ. gave separate concurring Opinions. 16-Q S. C. lndia/ND/81 1206 A B SUPRE~~E COURT REPORTS [1981] 1 S.C.R. KRISHNA IYER, J.-A procession of 'life convicts' well over two thousand strong, v.ith more joining the march even as the arguments were on, has vicarrously mobbed this court, through their learned counsel, carrying constitutional missiles in hand and demanding liberty beyond the bars. They challenge the vires of s. 433A of the Criminal Procedure Code (Procedure Code, for short) which compel8 'caging' of two classes af prisoners, atleast for fourteen eternal infernal years, regardless of the benign remissions and compassionate concessions sanctioned by prison law and human justice. Their despair is best expressed in the bitter lines of Oscar Wilde : (1) I know not whether Laws be right, C Or whether Laws' be wrong, D E F G .H 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 wifu · evocative rhetoric. But Judges themselves are prisoners of the law and are not free to free a prisoner save through the open sesame of Justice ·according to law. Even so, there is a strange message for judges too in the rebellions words of Gandhiji's quasi-guru David Thoreau : (2) The law will never make men fr~ it is men who have got to make the law free. They are the lovers of law and order who observe the law when the government breaks it. The case of the petitioners is that Parliament has 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 s. 433(a) of the Procedure Code to life imprisonment. The common (!) The Ballad of Reading Gaol. (2) Henry David Thoreau: Slavery in MalOillchusetts, 1854. + MARU RAM v. UNION OF INDIA (Krishna Iyer, !.) . 1207 factor binding together these two categories of 'lifers' (if we may use A . this vogue word, for brevity) is obvious. The offences are so serious that the Penal Code has prescribed 'death' as an alternative punish- + ment although, in actual fact, judicial compassion or executive clemency has averted the lethal blow - but at a price, viz., prison tenancy for life. · Before the enactment of s. 433A in 1978 these 'lifers' were treated, in the matter of remissions· and release from jail, like others sentenced 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 afl 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 lifesentencee, regardless of the offence which cast him into the prison, to.get his exit vrsa long before the full span of his life had run out - often by about eight to ten or twelve years, sometimes even earlier. Then came, in 1978, despite the strident peals of human rights of that time, a parliamentary amendment to the procedure Code and s. 433A . was sternly woven, with virtual consensus, into the punitive fabric obligating the adtual detention in prison for full fourteen years as a mandatory minimum in the two classes of cases where the court could have punished the offender with death but did not, or where the court did punish the culprit with death but he survived through commutation to life impri&•onment granted under s. 433(a) of the Procedure Code. All the lifers lugged into these two categodes - and they form the bulk of life-convicts in our prisons - suddenly found themselves legally robbed' of their human longing to be set free under the remission scheme. This poignant shock is at the back of the rain of'writ petitions under Art. 32; and the despondent prisoners have showered arguments against the privative provision- (s. 433A) as constitutional anathema and penological atavism, incompetent for Parliament and violative of fundamental rights and reformatory goals. The single issue, which has proliferated into many at the hands of a plurality of advocates, is whether s. 433A is void for unconstitutionality and, alternatively, whether the said harsh provision admits of interpretative liberality which enlarges 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, emphasis·ed;(1) (!) Alfred Cohn and Roy Udo!f, the Criminal Justice System and its Psychology, Van Nostrand Reinhold Co. New York, p. 298-99. B c D E F G H 1208 SUPRE~1E COURT REPORTS [1981] 1 S.C.R. A the fundamental principle in our courts that where B c D E F there is any conflict between the freedom of the individual and any ot:her rights or interests, then no matter how great or powerful tlhose others may be, the freedom of the humblest ci~n shall prevail. Of course, most of the petitioners belong to 'the poorest, the lowliest and the lost'.