Holding

Section 433A of the Code of Criminal Procedure is constitutionally valid, prospective, and prevails over remission rules, without violating Articles 14, 20(1), 72 or 161.

Summary

The Supreme Court examined the constitutionality of Section 433A of the Code of Criminal Procedure, 1973, which imposes a mandatory minimum of fourteen years’ imprisonment on two categories of life‑sentence convicts – those convicted of offences where death is a possible punishment and those whose death sentence was commuted to life. The petitioners argued that the provision violated Articles 14, 20(1), 72 and 161 of the Constitution, exceeded Parliament’s legislative competence, and was arbitrary and irrational. The Court held that Parliament has competence under List III, that the provision does not infringe Articles 14 or 20(1), and that it merely limits the operation of Sections 432 and 433 without curtailing the constitutional power of pardon. The provision is prospective, supersedes state remission rules, and release can occur only by a government order under s.432 or by exercise of Articles 72/161. The writ petitions were dismissed, with the Court affirming the validity of Section 433A.

Issues considered

The legislative competence of Parliament to enact Section 433A under the Seventh Schedule.
Whether Section 433A violates Article 14 of the Constitution by being arbitrary or irrational.
Whether Section 433A infringes Article 20(1) by imposing a heavier penalty retrospectively.
The impact of Section 433A on the exercise of the constitutional powers of pardon and remission under Articles 72 and 161.
The prospective or retrospective operation of Section 433A with respect to sentences imposed before its commencement.
The relationship between Section 433A and the savings clause in Section 5 of the Code of Criminal Procedure.

Legislation cited

Code of Criminal Procedure, 1973s. 432, s. 433, s. 433A, s. 5
Constitution of Indias. Article 14, s. Article 161, s. Article 20(1), s. Article 246(1), s. Article 246(2), s. Article 254, s. Article 366(10), s. Article 372(1), s. Article 72
General Clauses Act, 1897s. 3(60)(b), s. 3(8)(b)
Prisons Act, 1894s. 59

Subjects

Section 433Amandatory minimum sentencelife imprisonmentremissionpardon powerArticle 14Article 20(1)Article 72Article 161legislative competenceprospective legislationdeterrencereformationprison law

Judgment

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,
.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)ecem-
ber, 1978, prescribing a minimum of 14 years' of actual imprisonment for the
two types of lifers, vires of--Pardon J11rispmde11ce-EfJects of Sectil1~ 433A
c 011 Articles 72 and 161-Whetlltr section 433A riolates Article 14 being wh<Jf/y
arbitrary and irrational-Whether section 433A lacked legislative competency
under the Lists and also comravene .Article 20(1) of the Constitution-Whether
the various provisions for ren1issio11s under the Prison Act and Rules and other
legislation had their full operation notwithstanding section 433A, thanks to the
savings provision in section 5 of the Code of Criminal Procedur~ Code Consti-
tution of India, 1950, Articles 14, 20(1), 72, 161, 246(1), (2) and 254, E•1try If.
List Ill of the Seventh Schedule, Code of Criminal Procedure, 1973, sections 5,
D
432, 433, 433A-Prisons Act, .I 894 (Central Act), section 59 (7.7) rear! . with
General Clauses Act.
Dismissing the writ petitions but partly allowing, the Court
HELD: By Iyer, J. (On behalf of Y. V. Chandrachud, CJ., P. N. Bh~gwati,
J. and himself)
E I. Section· 433A o( the Code of Criminal Procedure Sode as intr0duced
with effect from 18-12-1978 i'; constitutionally valid. May be, penologically
the prolonged terms prescribed by the Section is supererogative. [1248 C-D]
2. Section 433A is supreme over the Remission Rules and short-sentencing
Statutes made by the various Slates. [1248 DJ
3. All remissions and short-sentencing passed under Articles 72 and 161
-J
F of the Constitution are valid but release with follow. in life sentenc·e ca,es. only
• on Government making an order en masse or individually, in that behalf
[1248 D-E]
4. Section 432 and section 433 of the Code are not a manifestation of Arti·
cles 72 and 16J of the Constitution but a separate, though similar, power and
section 433A, by nullifying wholly or partially these prior provisions does not
violate or detract from the full operation of the constitutional power to pard0n,
G commute and the like. [1248 E-F]
5. Section 433A of the Code does not contravene the provisions of Arti-
cle 20(1) of the Constitution. [l 248 G]
6. Imprisonment for life lasts until the la5t breath and whatever the length
of remissions earned, the prisoner can claim release only if th~ remainil'g se'1·
tence is rnmitted by Government. [1248 G]
H
Gopal Vi11ayak Godse v. State of Maharashtra & Ors., [1961 l 3 S.C.R. 440,
reiterated.
MARU RAM V. UNION OF INDIA 1197

7. Section 433A, in both its limbs (i.e. both types of life imprisonment A
specified in it), is prospective in effect. The mandatory minimum of 14 years
actual imprisonment will not operate against those whose c~ses were decided
by trial court before the 18th J)ecember, 1978, directly or retroactively, as ex-
plained in the judgment when section 433A came into force. AJJ 'lifers' whose
conviction by the court of first instance was entered prior to that date ar~ entitl-
ed to consideration by Government for release on the strength of earned remis-
sions although a release can take place only if Government makes an order to B
that effect. It foJJows by the same logic, that short-sentendng legislations if
any, will entitle a prisoner to claim release thereunder if his conviction by the
.court of first instance was before section 433A: was brought into effect.
[1248 H, 1249 A]
8. The power under Articles 72 and 161 of the Constitution can be exer·
cised by the Central and the State Governments, not by the President or Gover·
nor on their own. The advice of the appropriate Government binds the c
Head of the State. No separate order for each individual case is necessary but
any general order made must be clear enough to identify the group of cases
and indicate the application of mind to the whole group. [1249-D]
9. Considerations for exercise of power under Articles 72/161 may be
myriad and their occasions protean, and are left to the appropriate Government,
but no consideration nor occasion can be wholly irrelevant, irrational, discrimi· D
natory or ma/a fide. Only in these rare cases will the court examine the
·exercise. [1249 D·El
10. Although the remission rules or short-sentencing provIS1ons proprio
vigore may not apply as against section 433A, if the Government, Ce'11ral or
State, guides itself by the self-same rules or schemes in the exercise of its consti-
tutional power. Until fresh rules are made in keeping with experience gather- E
ed, current social conditions and accepted penological thinking, the present re·
mission and release schemes may usefully be taken as guidelines under Arti-
cles 72/ 161 and orders for release passed. Government cannot be faulte.d, if in
some intractably savage delinquents, section 433A is itself treated as a guide·
line for exercise of Articles 72/ 161. [1249 E·G]
11. The U.P. Prisoners' Release on Probation Act, 1938 enahling limited
enlargement under licence will be effective as legislatively sanctioned imprison· F
hlent of a loose and liberal type and such licensed enlargement will he reckoned
for the purpose of the 14-year duration. Similar other statutes and rules wiil
enjoy similar efficacy. [1249 G·H]
12. Penal humanitarianism and rehabilitative desideratum warrant liberal
paroles, subject to security safeguards, and other humanizing strategies for in·
mates so that the dignity and worth of the human person are not desecrated by G
making mass jails anthropoid zoos. Human rights awareness must infuse insti·
tutional reform and search for alternatives. [1250 A-Bl
13. Law in action fulfils itself not by declaration alone and necds the
wings of communication to the target community. So, the whole judgment wdl
translated in the language of the State, must be kept prominently in each ward
and made available to the inmatQ> in the jail library. [1250 B-CJ.
H
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 inter-
missions of freedom is to do violence to language and liberty. [1250 C-0]
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]

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 ennmerat-
ed 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 pro-
vided 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
c 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 cog-
nate 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 commuta-
D tion 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 short-
sentencing under Entry 4 of List II is, subject to Articles 246(1) and (2) and
so parliamentary legislation prevails over State legislation. Moreover, Article
E · 254 resolves the conflict in favour of parliamentary legislati:Jn. If a State m-
tends 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 obtain-
ed 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 re-
H 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 salva-
tiqn 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 remis-
sjon plus the period undergone equal that term the prisoner may win his freedom.
E
Any amount of remission to result in manumission requires action under sec·
tion 432(1), read with the Remission Rules. That is why Parliament, tracing
the single source of remission of sentence to Section 432, blocked it by t':te non
obstante clause. No remission, however long, can set the prisoner free at the
instance of the State, before the judicial sentence has run out, save by action
under the constitutional power or under section 432. So read, section 433A y
achieves what it wants-arrest the release of certain classes 0f "lifers" before a
certain period, by blocking of section 432. [1217 G-H, 1218 A-El
Sentencing is a judicial function and whatever may be done in the matter
of executing that sentence in the shape of remitting. commuting or otherwise
abbreviating, the Executive cannot alter the sentence itself. Remission cannot
detract from the quantum or quality of sentence or its direct and side-effects
except to the extent of entitling the prisoner to premature freedom if the deduc- G
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., [1 Q(l] 2
S.C.R. 133; Gopal Vinayak Godse v. State of Maharashtra & Ors., [1961] 3
S.C.R. 440, referred to.
1200 SUPRE:\1E COURT REPORTS [1981] 1 S.C.R.

A 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
B 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]

,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 anti-
social categories may legitimately be applied to s. 433A. (The sonnd rationale
E. 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 ordi- .,.
narily 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
F. 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
H 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 B
governmental decision and the order may issue even without foe Governor's
approval although, under the Rules of Business and as a matter of constitu-
tional 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
D
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
E
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 G
any flagrant excess were clearly made out. [1211 F-GJ
2. Courts cannot abdicate constitutional obligations even if Parliament be
pachydermic and politicians indifferent, with great respect, ordinarily th~y ~re
not. Indeed, Judges must go further, 011 account of their accountabilitv to the
Constitution and the country and clarify that where constitutional liberties are
imperilled judges cannot be non-aligned. But where counterfeit constitutional -H
.claims are pressed with forensic fervour courts do not readily oblige by con·
· senting to be stampeded. Justice is made· of sterner stuff, though its core is
-lik:o "the gentle rain from heaven" being interlaced with mercy. [1213 F-H]
.1202 SUPREME COURT REPORTS [1981] 1 S.C.R.

A Per Fazal Ali, J. (Concurring)-
!. Section 433A of the Code is constitutionally valid. Section 433A is
actually a social piece of legislation which by one stroke seeks to prevent
dangerous criminals from repeating offences and on the other protects the
society from harm and distress caused to innocent persons. [1256 B-C] ~

2. The dominant purpose and the avowed object of the legislature in
introducing section 433A in the Code of Criminal Procedure unmistakably
B 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 imprison-
ment is given or where a sentence of death is commuted to that of life imprison-
ment. Section 433A when it confines its application only to these cate-
gories of offences which are heinous and amount to a callous outrage on huma-
nity, 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
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 im-
prisonment 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
E 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 crimi-
nals 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, diffi-
cult 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 mitigat-
ed. Secondly, while reformation of the criminal is only one side of the pic-
ture, 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 Arti-
cle 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'.l- A
blished 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 punish-
ment 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 B
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 c
·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 Govern- E
oment under· Article 161' have absolute and unfettered powers to grant pardon,
reprieves, rem1ss10ns, etc. This power can neither be altered, modified or inter-
fered with by any statutory provision. But, the fact remains that higher the
power, the more cautious would be its exercise. This is particularly so be-
cause 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 F
'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 G
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 evi-
dence that all or most of the criminals who are punished are amenable to re- H
formation. 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
1204 SUPREME COURT REPORTS [1981] 1 S.C.R.

A 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
B 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
c 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 re-
peat 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
D 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
E and others. [1980] 2 sec 684, would have to be exterminated from Indian cri-
minal 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!·
F 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.
D
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
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.
F
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. G
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.
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 SUPRE~~E COURT REPORTS [1981] 1 S.C.R.

A KRISHNA IYER, J.-A procession of 'life convicts' well over
two thousand strong, v.ith more joining the march even as the argu-
ments were on, has vicarrously mobbed this court, through their learn-
ed 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 com-
B pel8 '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 des-
pair is best expressed in the bitter lines of Oscar Wilde :(1)
I know not whether Laws be right,
C 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.
D
!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
E 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
F 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 .
G petitioners belong to one or other of two categories. They are either
sentenced by court to imprisonment for life in cases where the convic-
tion 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
.H
(!) 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. B

· 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 c
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 life-
sentencee, 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 - D
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 E
could have punished the offender with death but did not, or where the
court did punish the culprit with death but he survived through com-
mutation to life impri&•onment granted under s. 433(a) of the Proce-
dure 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 F
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 G
goals. The single issue, which has proliferated into many at the hands
of a plurality of advocates, is whether s. 433A is void for unconstitu-
tionality 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 H
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.
1208 SUPRE~1E COURT REPORTS [1981] 1 S.C.R.

A the fundamental principle in our courts that where
there is any conflict between the freedom of the individual and
any ot:her rights or interests, then no matter how great or power-
ful tlhose others may be, the freedom of the humblest ci~n
shall prevail.

B Of course, most of the petitioners belong to 'the poorest, the lowliest
and the lost'. For those who listlessly languish waiting for their date
with Freedom, the human hope of going home holds the lamp of life
burning and a blanket ban against release before a brutal span of
full 14 years, even if their habilitation be ever so complete and
convincing, benumbs the very process of restoration which is cardinal
c to the rationale of penal servitude. Indeterminate sentences for the
same reason, have been 1:riticised since they have
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
D sentiences and create additional emotional strain on both the
inmate and his family, who are left to wonder when they will
be freed.( 1)
The imprisoned poet, Oscar Wilde, wrote that courts must know
when adjudicating !he arbitrariness of long-term minima implacably
impos'ed in the name of social defence :(2 )
E
Something was dead in each of us,
And what was dead was Hope.
xx xx xx
The vilest deeds lik1~ poison weeds
F
Bloom well in prison-air :
It is only what is good in Man
That wastes and withers there :
G Pale Anguish keeps the heavy gate,
And the Warder is Despair.
Thes'e generalities only serve as a backdrop to the consideration of
the multi-pronged at!ack on the vires of s. 433A. For judicial dia-
gnosis, we must read it whole before drssecting into parts :
H · (1) Alfred Cohn and Roy Udolf, The Criminal Justice System and its
Psychology, Van Nostrand Reinhold Co. New York, p. 298-99.
(2) Ballad of Reading Gaol.
MARV RAM v. UNION OF INDIA (Krishna Iyer, J.) . 1209

433A. Notwithstanding anything contained in section 432, A
where a sentence of iJnprisonment for life rs· impcised on convic-
tion 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 B
imprisonment.
Piecemeal understanding, like a little learning, may prove to be a
dangerous thing. To get a hang of the whole subject-matter we must
read s. 432 and 433 too.
432. (1) When any person has been sentenced to punish- c
ment for an offence, the appropriate Government may, at any
time, without conditions or upon any conditions which the person
sentenced accepts, suspend the ex,ecution of his sentence or
remit the whole or any part of the punishment to which he has
been sentenced.
... D
433. The appropriate Government may, without the con-
sent of the person sentenced, commute--
(a) a sentence of death, for any other punishment provided
by the Indian Penal Code.
(b) a sentence of imprisonment for·life, for imprisonment E
for a term not ~xceeding four.teen 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 and 402 of the 1898
Code), but s. 433A is altogether new. 'Ay, there's the rub'. It is
.obvious that s. 432 clothes the appropriate Government with the
power to remit the whole or part of any sentence. The mechanic& G
for exercising this power and the conditions subject to which the
power is to be exercised are also. imprinted in the Section. This is
a wide power which, in the absence of s. 433A, extends to remission
of the entire life sentence i:f. Government chooses so to do. A liberal
/
or promiscuous use of the power of remission under s. 433(a) may
mean that many a murderer or other offender who could have been H
given death sentence by the court but has been actually awarded only
life sentence may legally bolt away the very next morning, the very
1210 SUPREME COURT REPORTS [1981] 1 S.C.R.

A next year, after a decade or at any other time the appropriate Govern-
. ment is in a mood to remit his sentence. Bizarre freaks of remissions,
· - such, for instance, af: the impertinent happenstance of a Home
Minister's 'hallowed' presence on an official visit to the Prison result-
ing in remissions of sentences - have been brought to our notice,
making us stagger at the thought that even high constitutional powers
are devalued in practice by those 'dressed in a little bfief authority'
thereby encouraging the fallacious impression that functionaries of
our Republic are re-incarnated quasi-maharajas of medieval vintage !
We will <lea~ with it a little later under Art. 161 of the Constrtution
but mention it here to prove what, perhaps, provoked Parliament to -~'·
enact s. 433A. In many States, we are told, lifers falling within the
c 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 pre-
vailed in regard to those who had actually been subjected to death
D
penalty but, thanks to s. 433(a), had a commuted sentence of life
imprisonmentJ. Taking cognizance of such utter punrtive laxity in
these two graver classes of cases, the Joint Committee, which went
into the Indian Penal Code (Amendment) Bill, suggested that a long
enough minimum sentence should be suffered by both classes of
E lifers. The draconian provision (as some counsel have described it)
was the product of the Joint Committee's proposal to add a proviso
to s. 57 of the Penal Code. Its appropriate place was in the Proce-
dure Code and sos. 433A was enacted when the Criminal Procedure
Code was amended. It was a punitive prescription made to parlia-
mentary 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) s·o 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
G provision:

The Code of Criminal Procedure, 1973 came into force on +
the 1st day of April, 1974. The working of the new Code has
been carefully watched and in the light of the experience it has
H been found necessary to make a few changes for removing
certain difficulties and doubts. The notes· on clauses explain in
brieJ the reasons for the amendments.
. MARV RAM v. UNION OF INDIA (Krishna lyer, J.) 1211

The notes on clauses gives the further explanat!on : .A
Clause 33 : Section 432 contains provision relating to
powers of the appropriate Government to suspend or remit
sentences.· The Joint Committee on the Indian Penal Code
(Amendment) Bill, 1972, had suggested th~ insertion of a pro-
viso to section 57 of the Indian Penal Code to the effect that a
B
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 Criminal Procedure Code, a new section is being inserted c
to cover the proviso inserted by the Joint Committee.
This takes us to the Joint Committee's recommendation on s. 57 of
the Penal Code that being the inspiration for clause 33. For the
sake of completeness, we may quote that recommendatron :
Section 57 of the Code as proposed to be amended had D
provided that in calculating fractions of terms• of punishment,
imprisonment for life should be reckoned as equivalent to
rigorous imprisonment for twenty years. In this connection
attention of the Committee was brought to the aspect that some-
t!mes due to grant of remission even murderers sentenced or
commuted to life imprisonment were released at the end of 5 E
to 6 years. The committee feels· that such a convict shauld 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 resulting in premature releases of life F
sentencees for capital offences. This proposal was transposed into the
Criminal Procedure Code (Amendment) Bill in clause 33 and
eventuated in the incarnation of s. 433A with none in Parliament
shedding a human rights tear, although before us several counsel
have turned truly eloquent, even indignant, in the name of human
rights. Of course, parliamentary taciturnity does not preclude G ,
forensic examination about legislative competency. Nor does it re-
lieve this court, as sentinel on the qui vive, from defending funda-
mental rights against legislative aggression, if any flagrant excess were
clearly made out.
We have to examine the legislative history of ss. 432 and 433 H
and study the heritage of Arts. 72 and 161 of the Constitution. But
this we will undertake at the appropriate stage. Before proceeding.
'1212 SUPREME COURT REPORTS [1981] 1 S.C.R.

A further, we may briefly formulate the contentions which have been
urged by wave after wave of counsel. The principal cffallenge has
been based upon an alleged violation of Arts. 72 and 161 by the
.enactment of s. 433A. Sarvashri Nand Lal, R. K. Garg, Mridul,
Tarkunde and Dr. Singh.vi, among others have argued this point with
repetitive vehemence and feeling for personal freedom. The bar is
B the bastion. Indeed, Shri Garg was shocked that we were not 'shock-
ed' by such long incarcerntion being made a statutory condition for
release of a 'lifer' guilty of murder and was flabergasted a.t even a
faint suggestion that th1~ President or the Governor might exercise
his power of commutation guided, inter alia, by the parliamentary
pointer expressed in s. 433A. The next contention voiced with
c convincing vigour by Shri Tarkunde was thats. 433A violated Art. 14
being wholly arbitrary and irrational. Shri Mridul, with persuasive
flavour, stressed that s·. 433A lacked legislative competency under the
Lists and must be struck down for the additional reason of contraven-
tion of Art. 20(1) of the Constitution and backed his plea with
. American authorities, Shri Kakkar made an independent contribution,
D
apart from endorsement of the earlier submissions by other counsel.
The main thrust of his argument, wh!ch wa& ingeniously appealing,
was that the various provisions for remissions under the Prison Rules
and other legislatioos had their full operation notwithstanding
s. 433A, thanks to the savings provision m s. 5 of the Procedure
E
Code.
Dr. Singh.vi, who brought up the rear, belatedly but eruditely
strengthened the arguments of those who had gone before him by
reference ro the abortive history of the amendment of s. 302 l.P.C.
and the necessity of having to read down the texfi of s. 433A in the
context of the story o.E its birth. Apart from t:he legislative vicrs-
F situdes in the light of which he wanted US' to interpret s. 433A restric-
tively, Dr. Singhvi treated us to the provisions of the Irish Consti:tu-
tion 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 of the hi:gh prerogative power& under Arts. 72 and
161 of the Constitution. Others who appeared in the many writ
G petitions made supplementary submissions numerically strong but
lacking legal muscles, some of which we will refer to in passing. One
of the lifers, having been an advocate by profession, chose to appear
in person and made brief submissions in interpretation which did not
impress us.
H The Union of India, represented by the learned Solicitor Gene-
ral, has repudiated the infirmities imputed to s. 433A. We must
appreciatively mention that he did tersely meet point by point, with
MARU RAM v. UNION OF INDIA (Krishna Iyer, !.) · 1213

persuasive preCision, juristic nicety, case-law erudition and fair con- · .A
cession. His· submissions have helped us see the issues in perspec-
tive 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 ~rguments on a seemingly small point does B
credit to the expansive potential of the forensic cosmos but brings
despair when we contemplate the utter chaos in court having regard
to the total litigation crying for justice. A new modus vivendi is as
imperative as it is urgent if the kismet of the court system must sur-
vive the challenge - 'to be or not to be'!
A preliminary observation may be merited since much argument
c
has been made on the duty of tihis court to uphold human r!ghts.
Counsel for the petitioners, who now rightly toll the knell of prisoners'
reformative freedom, have not shown us any criticism in the Press -
the Fourth Estate - or by any member or Party in Parliament or
outside, about this allegedly obnoxious provision repelling rules of D
remission and legislations for shortening sentences, the high tide of
human rights notwithstanding. Judge Learned Hand's famous' warn-
ing about liberty lying in the bosoms of the people comes to mind.
Court coines last; where is the first?
Issues of liberty are healthy politics and those sincerely committed
to human rights must come to the support of poor prisoners who have E
no votes nor voice and may perhap& be neglected by human rights
vocalists with electoral appetites. It is a little strange that when no
dissent is raised in Press or Parliament and a legislation has gone
through with ease there should be omnibus demand in court as a
.·~ last refuge for release of prisoners detained under a permanent legisla-
F
tion, forgetting the functi:onal limitations of judicial power~
Nevertheless, we will cover the entire spectrum of submissions
including those based upon fundamental freedoms because courts
cannot abdicate constitutional obligations even if Parliament be
pachydermic and politi:cians indifferent. (With great respect, ordi-
narily they are not.) Indeed, we must go further, on account of our G
accountability to the Constitution and the country and clarify that
where constitutional liberties are imperilled judges cannot be non-
aligned. But we must remind counsel that where counterfeit constrtu-
tional claims are pressed with forensic fervour courts do not readily.
oblige by consenting to be stampeded. Justice is made of sterner ~tuff,
though its core is like 'the gentle rain from heaven' being interiaced H
with mercy. We may now proceed to deal with the principal argu-
ments and logically we must dispose of the question of legislative
..

121'4 SUPREME COURT REPORTS [1981] 1 S.C.R.

A competency of Parliament to enact a ~inimum period of detention
in prison. ,
We may safely assume that, but for the bar of s. 433A, the
rules of remission and short-sentencing legislation would, in all
probability, result in orde:rs of release by Gov~rnment of the thousands
of petitioners before us. Thus, it is of central importance to decide
B whether Parliament has no legislative competence to enact the im-
pugned provision.
We dismiss the contention of competency as of little substance.
It is trite law that the Lists in the Seventh Schedule broadly d©lineate
the rubrics of legislation and must be interpreted liberally. Arti-
c cle 246(2) gives power to Parliament to make laws with respect to
any of the matters enumerated in List III. Entries 1 and 2 in
List III (especially Entry 2) are abundantly comprehensive to cover
legislation such as is contained in s. 433A, which merely enacts a
rider, as it were, to ss. 432 and 433(a). We cannot read into rt a
legislation on the topic of 'prisons and prisoners'. On the other hand,
D it sets a lower limit to the execution of the punishment provided by
the Penal Code and is appropriately placed in the Chapter on Execu-
tion and Sentences in the Procedure Code. Once we accept the
irrefutable position that the execution, remission and commutation of
sentences primarily fa\l, as in the earlier Code (Criminal Procedure
Code, 1898), within the present Procedure Code (Chapter XXXII),
E
we may rightly assign s. 433A to entry 2 m 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 execu-
tion of sentence, not conditions in prison or regulation of prisoner's
F life. The distinction between prisons and prisoners· on the one hand
and sentences and their execution, remission and commutation on the
other, is fine but real. To bastardize s. 433A as outside the legitimacy
of Entry 2 in List III is to breach all canons of constitutional inter-
pretation of legislative Lists. Parliament has competency.
Let us assume for a moment that the laws of remission and
G short-sentencing are enacted under Entry 4 of List II. In that event
the States' competency to enact cannot be challenged. After all,
even in prison-prisoner legislation, there may be beneficient provisions
to promote the habilitatrve potential and reduce warder-prisoner fric-
tion by stick-cum-carrot strategies. , Offer of remission paroles, super-
vised releases, opportunities for self-improvement by family contacts,
H time in community work centres and even meditational centres, can
properly belong to prison legislation. Rewards by remissions, like
punishments by privations are permissible under Entry 4 of List II.
MARU RAM v. UNION OF INDIA (Krishna Iyer, J.) 1215

Indeed, progressive rehabilitatory prison laws which have a dynamic A
correctional orientation and reformatory destination, including
meaningful intermissions and humane remissions is on the Indian
r· agenda of unfulfilled legislations. Apart from these futurological
measures, we have here an existing Central Law, viz. the Prisons Act,
1894 which in s. 59(27) expressly sanctions rules for premature
release. Even so, the power 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 Ill
')...__ such law can prevail in that State as· against a parliamentary legisla-
. tion only if presidential assent has been obtained in terms of Art. 254 ·c
... (2). In the present case there is hardly any doubt that s. 433A
must hold its sway over any State legislatron even regarding 'prisons
and prisoners' if its provisions are repugnant to the Central Law. We
may read the Remission Schemes not as upsetting sentences but as
merely providing rewards and remissions for imprison good conduct
and the like. If the sentence i:s life imprisonment remissions, D
as such cannot help as GodfJe has laid down. If the sentence is for
a fixed term, remissions may help but Sec. 433A does not come in
the way. Thus, no incompatibility between Sec. 433A and remission
provisions exists.
This indubitable constitutional position drove counsel· to seek
refuge in the limited nature of the non obstante clause in s. 433A E
and the savings provision in s. 5 of the Procedure Code itself. The
contentio.n was that s·. 433A allowed free play for the rules of remis-
sion and short-sentencing 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 opera-
tional survival of Remission Rules made by the various States. This F
argument hardly appeals to reason because it fails to square with the
command of the substantive text and virtually stultifies the i:mpera-
tive part of the Section. -
In the province of interpretation, industry and dexterity of
counsel can support any. meaning, what with lexical plurality, case- G
law prodigality and profusion of canons to support any posi:tion. We
-+· had better base ourselves on the plain purpose and obvious sense
of the statute which is a sure semantic. navigatory before turning to
erudite alternatives. Oliver Wendel Holmes has wisely said : "It is
sometimes more i:mportant to emphasize the obvious than to elucidate
the obscure." Another sage counsel is Frankfurter's three-fold H
.advice :(1)
:~ (!) H. Friendly, Bonchmarks 202_ (1967).
1216 SUPREME COURT REPORTS [1981] 1 S.C.R.

A (1) Read the statute;
(2) read the statute;
('3) read the statute !

If we read s. 433A and emphasise the obvious, it easily discloses
B
the dividing line between sense and non-sense. The fasciculus of
clauses (ss. 432, 433 and 433A), read as a package, makes it clear
that while the Code does confer wide powers of remission and com-
mutation of sentences it emphatically intends to carve out an extreme
category from the broad generosity of such executive power. The _ -~
c non obstante clause, in terms, excludes s. 432 and the whole mandate
of the rest of the Section necessarily subjects the operation of
s. 433(a) to a serious restriction. This embargo directs that com-
mutation in such cases shall not reduce the actual duration of
imprisonment below 14 years. Whether that Section suffers from any
fatal consti~utional infirmity is another matter but it does declare
D emphatically an imperative intent to keep imprisoned for at least 14
years those who fall wrthin the sinister categories spelt out in the
operative part of s. 433A. The argument is that the non obstante
clause covers only s. 432 and significantly omits the common
phraseology 'or any other law in force' and, therefore, all other
provisions of law which reduce or remit the length of the incarcera-
E tion prevail over s. 433A. In particular, the Prison Rules and local
short-sentencing laws will diminish the length of prison tenancy of
all the lifers, despite the command of s. 433A. Why? Because the
non obstante clause is limited in nature and excludes only s. 432.
The Prisons Act, 1894, is 'existing Jaw' saved by Art. 366(10) and
Art. 372(1). Section 59 of that Act vests rule-making power in States.
F Specifically s. 59 ( 5) refers to rules regulating "the award of marks
and the shortening of sentences". Clearly, therefore, the States have
the power to make rules on Remrssion Systems and many States have,
for long, made and worked such· rules. They are intra vires, since
even new legislations on remissions and rewards are good under
Entry 4 of List II. These vintage schemes do not vanish with the
G enactment of the Constitution but suffer a partial eclipse if they
conflict wrth and become repugnant to. a Central law like the Proce-
dure Code. If s. 433A, by sheer repugnancy, forces a permanent
holiday on the prison remission laws of the States vis a vis certain
classes of 'lifers', the former must prevail in situations of irreconcil-
ability. Assuming that Rules under the Prisons Act are valid and
H cannot be dismissed as State law, a harmonious reading of s. 433A
and the Prison Rules must be the way out. Otherwise, the later law
must prevail or implied repeal may be inferred. We may not be
MARU RAM v. UNION OF INDIA (Krishna Iyer, !.) 1217

compelled to explore these ramifications here since the Remission A
Rules can peacefully co-exi'St with s~ 433A once we grasp the ratio
in Godse's case( 1 ) and Rabha's case( 2 ).
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 B
Application of Statutes by Reed Dickerson, p. 10). Thi& court has
held, way back in 1952 in Aswini Kumar Ghose( 3 ) that a non obstante
clause cannot whittle down the wide import of the principal part.
·).._ ~ !he enacting part is clear the non obstante clause cannot cut down.
its scope. ·
The learned Solicitor General reinforced the conclusion by point- c
ing out that the whole exercise of s. 433A, as the notes on clauses
revealed, was aimed at excluding the impact of Prison Remissions
which led to unduly early release of graver 'lifers'. Parliament knew
the 'vice', had before it the State Remission Systems and· sought to
nullify t'heir effect in a certain class of cases by use of mandatory
language. To read down s. 433A to give overriding effect to the D
Remission RIJles of the State would render the purposeful exercise a
ludicrous futility. If 'Laws suffer from the disease of Language',(4 )
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'
E
punished for capital offences , are concerned.
The learned Solicitor General explained why the draftsman was
content with mentioning only s. 432 in the non obstante clause. The
, scheme of s. 432, read with the court's pronouncement in Godse's ·
)._ case (supra), furnishes the clue. We will briefly indicate the argu- .
ment and later expatiate on the implications of Godse's case (supra) F
as it has an important bearing on our decision.
Sentencing is a judicial function but the eirecution of the
sentence, after the _courts pronouncement, is ordinarily a matter for
the Executive under the Procedure Code, going by Entry 2 in List III
of the Seventh Schedule. Keeping aside the constitutional powers G
under Arts. 72 and 161 which are 'untouchable' and 'unapproachable'
(I) [1961] 3 SCR 440 Gopal Vinayak Godse v. State of Maharashtra &
Ors.
(2) [1961] 2 SCR 133 Saratchandra Rabha & Ors. v. Khaqendranath Nath
& Ors.
(3) Aswini Kumar Ghosh and Anr. v. Arabinda Bose & Anr., [1953] SCR
I.
(4) Reed Dickerson, The Interpretation and ·Application of Statutes P. 13.
1218 SUPREME COURT REPORTS [1981] 1 S.C.R.

A for any legislature, let us examine the law of sentencing, remission
and release. Once a sentence has been imposed, the only way to
terminate it before t'he stipulated term is by action under ss. 432/ 433
or Arts. 72/161. And if the latter power under the Constitution is
not invoked, the only source of salvation is the play of power under
ss. 432 and 433(a) so far as a 'lifer' is concerned. No release by
B reduction or remission of sentence is possible under the corpus juris
as it stands, in ariy other way. The iegislative power of the State
under Entry 4 of List II, even if it be stretched to snaping point, can
deal only with Prisons and Prisoners, never with truncation of judicial
sentences. Remissions by way of reward or otherwise cannot cut
down the sentence as such and cannot, let it be unmistakably under-
&tood, grant final exit passport for the prisoner except by Govern-
ment action under s. 432(1). The topic of Prisons and Prisoners
does not cover rekase by way of reduction of the sentence itself.
That belongs to Criminal Procedure in Entry 2 of List.III although
when the sentence is for a fixed term and remission plus the period
undergone equal that term the prisoner may win his freedom. Any
D amount of remission to result in manumission requires action under
s. 432(1), read with the Remission Rules. That is why Parliament,
tracing the single source of remission of sentence to s. 432, blocked
it by the non-obstante clause. No remission, however long, can set
the prisoner free at the instance of the State, before the judicial
sentence has run out, save by action under the constitutional power
E
or under s. 432. So read, the inference is inevitable, even if the
contrary argument be ingenious, that s. 433A achieves what it wants
- arrest the release of certain classes of 'lifers' before a certain
period, by blocking s. 432. Arts. 72 and 161 are, of course, exclud-
ed from this discussion as' being beyond any legislative power to
F 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 Junda-
mental principles in sentencing jurisprudence have to be grasped in
the context of the Indian corpus juris. The first is that sentencing is
G a judicial function and whatever may be done in the matter of execut-
ing that sentence i11 the shape of remitting, commuting or otherwise
abbreviating, the Executive cannot alter the sentence itself. In
Rablw's case(1), a Constitution Bench of this Court illumined this
branch of law. What is the jural consequence of a remission of
H sentence?
(1) [1961] 2 SCR 133 at 137-138.
MARU RAM v. UNION OF INDIA (Krishna Iyer, J.) 1219

In the first place, an order of remission does not wipe out A
the offence; it also does not wipe out the conviction. All that
it does is to have an effect on the execution of the sentence;.
though ordinarily a convicted person would have to serve out
the full sentence imposed by a court, he need not do so with
respect to that part of the sentence which has beeii ordered to
be remitted. An order of remission thus does not in any way B
interfere with the order of the collrt; it affects only the execution
of the sentence passed by the court and frees the convicted
person from his liability to undergo the full term of imprison-
ment inflicted by the court, though the order of conviction and
sentence passed by the court still stands as it was. The power··
to grant remission is executive power and cannot have the effect c
which the order of an appellate or revisional court would have
of reducing the sentence passed by the trial court and substituting
in its place the reduced sentence adjudged by the appellate or
revrsional court. This distinction is well brought out in · the
0

following passage from Weater's "Constitutional Law" on the
D
effect of reprieves and pardons vis a vis the judgment passed by
the court imposing punishment, at p. 176, para 134 : -
"A reprieve is a temporary suspension of the punishment
fixed by law. A pardon is the remission of such
punishment. Both are the exercise of executive func-
tions and should be distinguished from the exercise of E
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 exer- F
cise of executive power which abridges .the enforce-
ment of t'he judgment but does not al'ter it qua
judgment."

Though, therefore, the effect of an order of remission is to wipe
out that pact of the sentence of imprisonment which has not been G
served out and thus in practice to reduce the sentence to the
period already undergone, in law the order of remission merely
means that the rest of the sentence need not be undergon~,
leaving the order of conviction by the court and the . sentence
passed by' it untouched.
H
The relevance of this juristic distinction is that remission cannot
detract from the quantum or quality of sentence 9I its direct and
1220 SUPREME COURT REPORTS [1981] 1, S.C.R.

A side-effects except to the extent of entitling the prisoner to pr-emature
freedom if the deduction following upon the remission has that
arithmetic effect:
;,

Ordinarily, where a sentence is for a definite team, the calculus
of remissions may benefit the prisoner to instant release at that point
B where the subtraction results in zero. Here, we are concerned with
life imprisonment and so we come upon another concept bearing on
the nature of .the sentence which has been highlighted in Godse's
case,( 1 ) Where the sentence is indeterminate and of uncertain dura-
tion, the result of subtraction from an uncertain quantity is still an
uncertain quantity and release of the prisoner cannot follow except
c oo some fiction of quantification of a sentence of uncertain duration.
Godse was sentenc:ed to imprisonment for life. He had earned
considerable remissions which would have rendered him eligible for
release bad life sentence been equated with 20 years ol' imprisonment
a la s. 55 l.P.C. On the basis of a rule which did make that equa-
tion, Godse sought his release through a writ petition under Art. 32
D of the Constitution. -He was rebuffed by this Court. A Constitution
Bench, speaking through Subba Rao, J., took the view that a sentence
of imprisonment for life was nothing less and nothing else than an
hnprisonment which lasted till the last breath. Since death was un-
certain, deduction by way of remission did not yield any tangible date
for release and so the prayer of Godse was refused. The nature of
E a life sentence is incarceration until death, judicial sentence of
imprisonment for life cannot be in jeopardy merely biecause of long
accumulation of remissions. Releasl:'. would follow only upon an
order under s. 401 of the Criminal Procedure Code, 1898 (corres-
ponding to s. 432 of the 1973 Code) by the appropriate Government
or on a clemency order in exercise of power under Arts. 72 or 161
F
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 : ( 2 )
G
Unless the said sentence is commuted or remitted by appro-
priate authority under the relevant provisions of the Indian
Penal Code or the Code of Criminal Procedure, a prisoner
sentenced to life imprisonment is bound in law to serve the life
term in prison. The rules framed under the Prisons Act enable
H such a prisoner to earn remissions - ordinary, specfal and State
(I) [1961} 3 SCR 440. ,
(2) [1%1) 3 SCR 440 at p. 447.
:MARU RAM :v. ;UNION roF:INDIA (Krishna Iyer, !.) H2'1

-'-- and the'.said ·remissions ·will :be :given credit !towards 'his term
of ·imprisonment. :For •the ,purpose ·of working .out the remis-
:sions ,the . sentence of ,transportation for :life is ordinarily equated
with a .definite :period, .but it .is .only for that .particular purpose
and ,not for any other purpose. As .the sentence.of transportation
for life ,or its prison ,equivalent, the .life :imprisoruiient, is one of
indefinite ·duration, ·the remissions .so earned do not in practice B
J1e1p such a convict as it is not possible to "predicate t.he 'timt
of hrs death. That is why the rules provide for a procedure to
enable ·the ·appropriate Government to Temit the .sentence under
s . .401 of •the Code of Criminal Procedure on a consideration
of •the relev~t factors, ·including the period of remissions earned.
The question of remission is exclusively within the province of c
the appropriate .Government; and in this case it is admitted that,
'though the appropriate . Government made certain remissions
under ·s. 401 .of the Code of Criminal Procedure, it did not remit
the entire sentence. We, therefore, hold that the petitioner has "-·
not yet acquired any right to release.
In Godse's case, Subha Rao, J., also .drew the conceptual lines
of 'remission', 'sentence' and 'lifecsentence'. 'Remission' limited :in
time, helps computation .but .does not ipso jure operate ,as .release .of
·foe prisoner. .But when .the $entence .awarded ·.by the judge :is for a
fixed term the effect of remissions· may be to scale down :the term to
be endured and reduce it to nil, while leaving the factilm and quan-
,tum ot' ·the :sentence in tact. That is the ratio of Rabha (supra).
•Here, again, jf the sentence is to run until life lasts, remissions,
.quantified in time, .cannot reach a point of zero. This is the ratio
of:Godse. The inevitable conclusion rs· that since ins. 433A we deal
only with life ·sentences, remissions .lead nowhere and cannot entitle
a .prisoner .to .release. In this view, the Temission rules do not militate
against s. 433A 'and the forensic fate of Godse (who was later
released by the State) who had stock-piled huge remissions without
acquiring ·a right to release, must overtake all the petitioners until 14
years of actual jail 'life is suffered and further an .order of release ~is
•made either under s: 432 or Arts. 72/161 of the Constitution.
'.G
Thenext'submission 'urged to show thats. 433A: is bad is based
on Art. 20(1) ·of <the ;Constitution. I~ is ·a ·rule of ·ancient English
1vintage that .ex .post iacto inflictia;n of heavier penalties that prevailed
:at ,the :time .of commission .of the offence :is obnoxious. It is incar-
,nated .as ·:Art. 20(1) in our Constitution. The short question· is
.whether ,the inflexible insistence on 14 ·years as a minimum term for IH
.release .retroactively :enlarges the punishment. 'Another argument
:addressed .to. reach 'the :same conclusion is· that if at the time Qf ·the
!7-6 S. C. India/ND/81
122!Z .SUPREME COURT REPORTS [1981] 1 S.C.R

A comni..lssion of the offence a certain berugn scheme of · reIIl1Ss1onsi
ruled, the penalty to which he would then have been subjected was
not the punishment stated in the Penal Code but that sentence reduced
or softened by the Remission Scheme or ·short-sentencing provision.
On this basis, the lifers· would ordinarily have been released well
before 14 years which is t)le harsh but mandatory minimum prescrib-
B ed by s. 433A. This indirectly casts a heavier punishment than
governed the crime when it was committed.

i> Neither argument has force. The first one fails because s. 302
I.P.C. (or other like offence) fixes the sentence to be life imprison-
ment. 14 Years' duration is never heavier than life term. The
c second submission fails because a remission, in the case of' life
imprisonment, ripens into a reduction of sentence of the entire
balance only whim a final release order is made. Gods~ (supra) is
too emphatic and unminc!ng to admit' of a different conclusion. The
ib.aunting distance of death which is the terminus ad quern of life
. imprisonment makes deduction based on remission indefinite enough
D not to fix the elate with certitude. Thus, even if remissions are
given full faith and credit, the date of release may not come to pass 1

unless all the unexpired, uncertain balance is remitted by ,a Govern-
ment order under s. 432. If this is not done, the prisoner will con-
tinue in custody. We assume here that the constitutional power is
kept sheathed.
:E
Let us assume for the sake of argument that remissions have
been earned by the prisoner. In Murphy v. Commonwealth, 172
Mass. 264, referred to by Cooley and cited ·before us (infra), it has
been held that earned remissions may not be taken away by subse-
quent legislation. Maybe, direct effect of such a privative measure
'F may well cast a heavier penalty. We need not investigate this posi-
tion here.
A possible confusion creeps into this discussion by equating life
imprisonment with 20 years imprisonment. Reliance is placed for
this purpose on s. 55 IPC and on definitions in variqus Remission
G Schemes. All that we need say, as clearly pointed out in Godse, is
that these equivalents are meant for the limited objective of computa~
tion to help the State exercise its wide powers of total remissions.
· Even if the remissions earned have totalled upto 20 years, still the
. State Government may or may not release the prisoner and until
such a release order remitting the remaining part of the life sentence
H . is passed, the prisoners cannot claim his liberty. The reason is that
· . life sentence is nothing less than life-long imprisonment. Moreover,
. the penalty then and now· is the' same - life term. And. remission
; ~ :

MARU RAM v. UNION OF INDIA (Krishna Iyer, J.) 1223

vests no right to release when the sentence is life imprisonment. No A
~eater punishment is inflicted by s. 433A than the law annexed
<>riginally to the crime. Nor is any vested right to remission cancelled
by compulsory 14 years jail life once we realise the truism that a life
sentence is a sentence for a whole life .. see Sambha Ji Krishan Ji v.
.State of Maharashtra; AIR 1974 SC 147 and State of Madhya Pra-
. desh v. Ratan Singh & Ors. [1976] Supp. SCR 552. B
Maybe, a difference may exist in cases of fixed term sentences .
.Cooley lends support :(1)
Privilege existing at time of commission of offence (e.g.
privilege of earning a shortening of sentence by good behaviour)
cannot be taken away by subsequent statute. c
_The next submission, pressed by Shri Kakkar with great plausi-
;bility, is that s. 5 of the Procedure Code saves all remissions, short-
sentencing schemes as special and local laws and, therefore, they must
.prevail over the Code including s. 433A. Section 5 runs thus':
5. Nothing ~ontained in this Code shall, in the absence D
of a specific provision to the contrary, affect any special or local
law for the trme being in force, or any special jurisdiction or
power conferred, or any special form of procedure prescribed,
by any other law for the time being in force.
The anatomy of this savings section is simple, yet subtle. E
Broadly speaking, there are three components' to be separated.
Firstly, t!he Procedure Code generally governs matters covered by it.
Secondly, if a special or local law exists covering the same area, this
latter law will be saved and will prevail. The short-sentencing
measures and remission schemes promulgated by the various States
are special and local laws and must over-ride. Now comes the third F
component which may ,be clinching. If ther~ is a specific provision
to the contrary, then that will over-ride the special or local law. Is
s. 433A a specific law contra? If so, that will be the last word and
will hold even against the special or local law.
Three rulings were cited by the learned Solicitor General to
make out that s. 433A is a specific law. A Bombay case in AIR G
1941 Born. 146(2 ), he frankly stated, takes a contrary but scrappy
view. The Judicial Committee in Pakala Narayana Swamy v. The
'King Emperor( 3 ) inconclusively considered what is a specific Jaw,
fo a similar setting. Two later cases of Lahore [a full bench of five
(1) Cooley's Constitutional Limitations, Vol. I, 8th Edn. p. 544. H
(2) Biram Sardar & Ors. v. 'Emperor, AIR 1941 Born. 146.
{3) 1939 IA 66.
SUPREME COURT 'REPOR'l'S {1981] 1 S.C.R~

'jil'dgese''] !'an'o 10£ Allah'ablid '[a ·bench of three :judges( 2 )] discussed
'alinost an 'identfoal Hi's\.Je and held that some provisions of the Proce-
1dii!e;Cciae '-were '·spedfic 'sections to :the· contrary and would repeal· any
''Special 'law on the subjeet.
Section 1(2) of the Criminal Procedure Code, 1898, is the ·pre-
I" vious incarnation cf s. 5 of the Present Code and contains virtually
B
the same phraseology. The expression 'specific provision to the con-
trary' 'in the Code of 1898 'was cc:insfdefod in the two ·Full Bench
Decisions (supra). The setting in which the issue 'was raised \Vas
precisely similar and the ·meaning of 'specific provision to the con-
•trary' was ·considered :by Young, C.J. in the Lahore case where the
-c learned Judge observed : ( 3 )
'The ·word 'specillc' is defined in Murray's Oxford Dictionary
· as 'precise or exact in respect of fulfilment, conditions or terms;
definite,· explicit'.
In a similar situation, the same words fell for decision in the
Allah'abad case where Braund, J., drscussed the me:aning·of 'specific
lprovision' in 'greater detail and observed : ( 4 )
·1 ·have, I confess, enter.tained soine doubt as to what exactly
the words 'specific provisians' mean. I think first, that they
must denou~ something different from the words 'express provi-
sion'. For a provision of a statute to be an 'express' provision
affectmg another statute or part of it, it· would have, I think, to
refer in so many words to the other statute or to the relevant 'r
portion of it and also to the effect intended to be produced c:iil
·it. Failing this, it could hardly be aid to be 'express' .... But
the word 'specific' denotes, to my mind, something less exacting ~
F than the word 'express'. It means, I think, . a provisi.cin whrch
'specifies' that some 'special law' is to be 'affected' by that parti-
cular provision. A dictionary meaning of the very ·'to specify'
. as given 'in Murray's New English Dictronary, is 'to mention,
speak of or name (something) definirely or explicitly; to set down
' or state categorically or particularly .... ' and a meaning of the
G adjective 'specific' 'in the same dictionary is 'precise ..... .
definite, explicit ...... ' exactly named· or: indicated or capable ~
·of being so, precise, particular.' What I think the words
'specific provisron' really mean therefore is that the particular
(1) Hakim Khuda Yar v. Emperor, AIR 1940 Lah. 129.
'fl (2) Baldeo & Ors. v.· Emperor, AIR 1940' All; 263.
(3) A~R 1940 Lah. 129 at p. 133.
(4) AIR 1940 All. 263 at 269.
MARU RAM v. UNION OF INDIA (Krishna Iyer, J.) .12.2 5

provision of th, Criminal Procedure Code must, in order to A.
'affect' the 'sp<:. :ii. ..... law,' clearly indicate, in itSelf and not
merely by implication to be drawn from the statute. generally,
that the 'special law' in question is to be affected without neces- ·
sarily referring to that 'special law' or the effect on it intended
to be produced in express terms. Lord Hatherley m(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 'ex-
press', they nevertheless require something which is plain cer-
tain and int~lligible and not merely . a matter of inference or
c
implication to be drawn from the statute generally. That, to·
my mind, is what is meant by the word 'specific' · in s. 1(2),
Criminal P.C. .

... fa an English case(') Buckley J., · has interp_reted the Word
'specific' to inean explicit and definable. While Indian usage of n:
English words often loses· the . Atlantic flavour and Indian Judge~
owe their fidelity to Indian meaning of foreign words and phrases,
here East and West meet and 'specific' is specific enough to avoid
being vague and general. 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 n0 clear idea of their E
meaning but hold it to. difluse an air of educated precision'. ( 2 )
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 ~nemies we have to go F
by. judicialese which is the draftsman's lexical guide.
'y-~- The contrary ,·iew in the Bombay case(•) is more ass~rtive than
explanatory, and ipse dixit, even if judicial, do not validate
themselves. We are inclined to airee with .the· opinion expressed
in the Lahore and Allahabad cases (supFa). A thing: is specific if.
it is explicit. If need not be express. The anti-thesis is between G-
'specific' and 'indefinite' or 'omnibus' and between 'implied' and
'express'. What is precise, exact. definite and explicit, is specific;
(l) Re Net Book Agreement. 1957 [1962] 3 All E.R. QBD 751.
(2) Fowle~s Modem English Usage, 2nd Edn., p. 514.
H
(3) Stroud's. Judicial Dictionary,
. Vol.
. . 4, Jrd Eda.. p.- 2836.
- ...
.
(4) Black"s Law Dictionary, 4th Edn. p. 1571.
(5) AIR 1941 Bom. 146.
122.6 SUPREME COURT REPORTS (1981] 1 S.C.R.

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 are special laws but
s. 433A is a specific, explict, 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
B picks out of a mass of imprisofilnent cases a specific class of life
imprisonment cases and subjects it explicity to a particularised
treatment. It follows that s. 433A applies in preference to any
special or local law because s. 5 expressly declares 1hat specific provi-
sions, if any, to the contrary will prevail over any special or local
law. We have said enough to make the point fhat 'specific' is
c specific enough and even though 'special' to 'specifi<:' is near allied
and 'thin partition do their bounds divide' the two are ·different.
;>(
Section 433A escapes the exclusion of s. 5.

The stage is now set for considering the contention that S. 433A
D violates Art. 14 for two reasons. It arbitrarily ignores the unequal;
yet vital, variations of cdmes and criminals so relevant to punishment
in our age of penological enlightenment and subjects them equally to
a terrible term of 14 years in jail as a mandatory minimum. Treating
unequals equally is anathema for Art. 14. Secondly, the Section
inflicts, with anti-reformative inhumanity and Procrustean cruelty, a
E prolonged minimum of 14 years' servitude on every life arbitrarily dis-
regarding the audit report on progressive healing registered by some as
against others. The capricious insistence on continued d1<tention of a
prisoner long after he has been fully resocialised is a penological
overkill, purposeless torture and constitutional blunder. These
F !wo inter-twined arguments cannot be appreciated without investigat-
ing the rational penal policy of our system and the brutal impertinence
of rigorous incarceration beyond the point of habilitation, what with
Mahatma Gandhi's therapeutic approach to criminals and Maneka
Gandhi's (1) acc:ent on fairness in privative processes where personal
liberty is involved.
G
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 proposi~
tions need a sublime perception jor fuller appreciation as the learned
Judges of this Court have invariably shown. Here, the proposition
is - Mr. Tarkunde and Mr. Garg, et a!, have pressed this to excess
ii -the primary purpose of prison sentence is hospital setting and
(I) Maneka Gandhi v. Union of India, [1978] I SCC 248.
MARU RAM v. UNION OF INDIA (Krishna Iyer, !.) 1221
psychic healing, not traumatic suffermg, · curative course, not retribu-
tive force, presented these days as a sophisticatcll variant called
public denunciation. This submission excludes other punitive
objectives such ·as deterrence through example or prolonged pain
and retribution through condign infliction. A penological screening
is fundamental t.o sentencing jurisprudence but, for our present.
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 punish-
ment of the criminal. And since personal injury can never psychi- ·
cally heal, it is obdurate obscurantism for any ·legislative crimino-
logists to reject the potential for prisoner re-socialisation from the 1
·calculus of reformative remission and timely' release. The compul-
sive span of 14 years in custody, whet'her the man within the 'lifer' has
become an angel by turning a new page or remains a savage, thanks
to jail regimen 'and jailor relations, sounds insensitive. Karuna,
D
daya, prema and manavata, are concepts of spiritualised humanism
secularly implicit in our constitutional· preamble. Alienation of
our justice system from our cultural quintessence, thanks · to the
hang-over of the colonial past, may be. the pathologi«al root of ,the
brute penology which confuses between· cfime and 'criminal:
Torturing the latter to terminate the former is not promotional of E
human dignity and fair legal process. Be that as it may, this court
in Sunil Batra, has observed: ( 1 ) • ·

The winds of change must blow into our careers and self-
..... e~pression and self-resp~ct. and . self-realization creatively
substituted for the dehumanising remedies and 'wild-life' F
· .te,c;hniques still current in the jail armoury. A few prison
·villains-they.exist-shall not make martyrs of the humane many;
and even from these few, trust slowly begets trust. Sarvodaya
and antyodaya have criminological dimensions which our social
justice awareness must apprehend and actualize. ·I justify this G
·, observation by referenc,e ·to the noble but. inchoate. experimept
(or unnoticed epic) whereby Shri Jai Prakash Narain redemp-
.. ,.tively brought murderously dangerous dacoits of Chambal. Valley
·.. into prison to .!urn a responsible. page in their life in and out
... of jail. The rehabilitative follow-up was, perhaps, a flop.
* * ·* * . ·* *
H

(1) Suni/ Batra v. Delhi Administration, [1978] 4 SCC 494·at·.566·67.
122& SUPREME COURT REPORTS '[1981] 1 S.C.R.
'

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 judici;U.
B midwifery, if need be.(1)

Again,

We share the concern and anxiety of our learned brother
Krishna Iyer, J. for reorientation of the outJook towards prison-
ers and the need to take early and effective steps for prison re-
forms. Jail Manuals are largely a hangover of th~ past, still retain-
ing anachronistic provisions like whipping and the ban on the
use of the Gandhi cap. Barbaric treatment of a prisoner from
the point of view of his rehabilitation and acceptance and reten-
D tion in the mainstream of social life, becomes counter-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 :
E 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
F off an offender from the outside world are afflictive by the very
fact of taking away from him the right ·Of self-determination.
Therefore .the prison system should not except as incidental to
justifiable !:egregation or maintenance of discipline, aggravate
the suffering inherent in such a situation.
The institution should be a centre of correctional treat-
ment, where major emphasis shall be given on the re-education
and reformation of the offender; The impacts of institutional
environment and treatment shall aim at producing constructive
changes in the offender, as would be having profound and lasting
effects on his habits, attitudes, approaches aJ!d on his total value
H
schemes· of life.
(1) Ibid 579-80.
MARU RAM y, UNION OF INDIA (Krishna Iyer, 1.) 1229

One of the; subjects dealt with in the Manual is 'release- planning'.
We need not tarry long to tell the truth that every slimer has a future,
_given the social chance, and every prisoner a- fi.ner chapter as a free
person, given the creative culturing of his psychic being. The
measure of this process is not the mechanical turn of the annual
.calendar fourteen times over, but the man-making methodology of
the correctional campus, together with individual response. It follows B
that' an inflexible 14 year term for lifers under s. 433A.eschews chances
of human. change and puts all the penal eggs in tlhe linear cellulilr basket.
May be, the failllre of prisons (this is the title of a recent book by a
. competent criminologist) has not occurred to Parliament when it enacted
s. 433A or the Gandhian gospel has, by 1978, lostits 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 contrib'uting their wisdom to its decisions, has title to
an: initial presumption of constitutionality. Unless one reaches far
beyond unwisdom to absurdity, irrationality, colourability and the
like, the court must· keep its hands off:
E
A Judicial journey to the penalogical beginning revea1s that social
defence is the-objective. The triple purposes of sc:_ntencing are. retribu-
a
tion, draped sometimes as public denunciation, deterrence, another
scary variant, with. a Pavlovian touch, and in our era. of human. rights,
rehabilitation, founded. on man'.s essential divinity and. ultimate
retrievability by raising the Jevel of consciousn~ss of the criminal and F
· society. We may av9id, for the nonce, theories like 'society prepare~
the. crime, the criminal commits its;' or. that 'crime is the product of
social excess' or ·that 'poverty is the mother of crime'.
Judical pronouncements are authentic guidance and so a few
· citations may serve our purpose. In Sobraj, this court observed·: G'
a
-It is now well~settled, as stream of rulings of courts proves;
that deterrence; both specific and general rehabilitation and
institutional security are vital considerations; Compassion•
wherever· possible and cruelty only where inevitable, is the art
of correctional confinement. When prison. policy advances such Hr
a valid goal, the court will not intervene officiously.
(I) Charles Sobraj v. Supdt. Central Jail, Tihar, [1978] 4 SCC 104 at 109.
1230 SUPREME COURT REPORTS . [1981] 1 S.C.R ..

A The overall attitude was incorporated as a standard by the ·
American National Advisory Commission on Crime, Justice·
Standards and Goals : ( 1 )

In a series of decisions this court has held that, even though
the governn:iental purpose be legitimat_e and s.ubstantial, thaL
B purpose cannot be pursued by means that broadly stifle funda-
mental personal liberties when the end can be more narrowly
achieved. The breadth of .Jegislative abridgment must be viewed,
in the light of loss drastic means for achieving the same basic ·
purpose.

C, Earlier, this court in Hiralal Mullick's case ( 2 ) stated :
The dignity and divinity, the self-worth and creative poten- ··
tial of every individual is a higher value of the Indian people, ..
Again, in Mahammud Giasuddin, a bench belighted in the penological ·
basics: ( 3 )
D It is thus plain that crime is a pathological aberration, that·
criminal can ordinarily be redeemed, that State has to rehabili-
tate rather than avenge, The sub-culture that leads to anti-social
behaviour has to be countered not by undue cruelty but by
re-culturisation. Therefore the focus of interest in penology is
the individual, and the goal is salvaging him for society. The .
infliction of harsh and savage punishment i~ thus .a relic of past
and regressive times. The human to day views sentencing as a
process of reshaping a person who has deteriorated into crimi- ...,..
nality and the modern community has a primary stake in the
rehabilitation of the offender as a means of social defence. We,
F therefore, consider a therapeutic rather than an 'in terrorem' · -f
outlook, should prevail in our cr(minal courts, since brutal in-·
carceration of the person merely produces laceration of his mind_.
In the words of George Bernard Shaw : 'if you are to punish a
man retributively, you must injure him. If you are to reform :
him, you must improve him and, men are not improved by injuries'.
We emphasise here that Remission Schemes offer healthy moti-
vation for better behaviour, inner improvement and development of
social fibre. While eccentriciti:es of remission reducing a murderer's
life term to short spells of 2 or 3 years in custody may scandalise
penologists, such fear may not flabbergast any sociologist if by sheer
H' (!) 'To Solve the Age-old Problem of Crime", Roger Lapphear, J.D. p. 19. ·
(2) Hiralal Mullick v. State of Bihar, [1977] 4 SCC 44' at 49 .
. (3) Mohammad Giasuddin V; State of A.P. [1977] 3 SCC 287 at 290.
MARU RAM v. UNION OF INDIA (Krishna Iyer, J.) 1231

good behaviour, educational striving and correctional success, a ~.
prisoner , eai:ns 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 : ( 1 ) B:
' 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 the prisoner and negative attitude to reformation of the individual
are obnoxious. Even the recent ruling in Bachan Single( 2 ) on the
vires of death penalty upholds this high stance. ·

Basic to the submissions of counsel for the petitioners is the
humane_ assumption that the object of sentencing is not deterrent
torture simpliciter but mainly the rehabilitation of the prisoner. Human
dignity, emphasised in the Preamble, compassion, implicit in the
prescription of fair procedure in Art. 21, and the irrationality of
arbitrary incarceratory brutality vi:olative of Art. 14 invest the demand
for a reformatory component in jail regimen with the status of a
constitutional requirement. We need not pro.long the judgment by
substantiation of this proposition because the learned Solicitor General,
with .sweet reasonableness and due ·regard to the precedents of ilhis
court, has not displtted that reform of the prisoner is one of the major
purpose of punishment. '

The sequiter is irresistible. Any provision that wholly or sub-
F
stantially discards the relevancy of restoration of the man mired by
criminality is irrational. How is s. 433A affected by this vice? The
argument is that 14 years in prison is an inordinate spell which_ is
· not only an unrewarding torment but a negation of reformation-in-
deed, the promotion of embittered hostility to society and hardening
of brutality count,er-productive of hopeful humanization.

The argument pressed before us is that s. 433A does• injustice
to the imperative of reformation of the prisoner. Had his in-prison
good behaviour been rewarded by reasonable remissions linked to
improved_ social responsibility, nurtured by familial contacts and liberal
':' :'(l)'Sentencing and Probation-Published by National College of the Stat¢ P
Judiciary, Reno, Nevada, USA, p, 68.
(2) Bachan Singh v. State of Punjab (1980] 2 SCC 684.
SUPREME COURT REPORTS [1981] 1 S~C.R.

parol, cultured by predictable, premature release, the purpose· of habili-
tation would have been served. If law-s. 433A in this case-rudely,
refuses to consider the subsequent conduct of the prisoner and forces
all convicts, good, bad and indifferent, to serve !! fixed and. arbitrary
minim.um it is an angry flat untouched by the proven criteril), Qf re;-.
form. Surely, an avant garde penologist or T.M. oriented jurist wou.kJ.
BJ . regard enlightem:d sentencing as. abbreviated life behind bats coupled
with rehabilitatory exposure i·nside and outside. May be,. he may even
criticise the draconian duration, blindly ru.oning beyond 14 y.ears,
as penological illiteracy. Criminologists concentrate on the. activi-
sation of the creative intelligence of the culprit hy various procedures
and by his release from jail at a cut-of!' point when the jural-neutral
tests of mental-moral normalcy, otherwise called Rehabilitation Indices,
are satisfied. To violate. these research results and to be addicted·:
to a 14-year prison term is a penal superstition without any rational
support and, therefore, is arbitrary. Why not 20 years? Or a whole
life? No material. scientific cultural or other has been placed for our
consumption by the State indicating that if a murderer does not spend
at least 14 endless years inside jail he will be a social menace
when released. Sadism and impressionism even if i! incarnates as legis-
lation, cannot meet the social science content of Arts. 14 and 21
which are part of the suprema lex.

E While the light of this logic is not lost on us and the non-institu•.
tional altemativ1:s to prison as the healing hope of humane habilita..
tion are worthy of· exploration, we are in the province of constitu..·
tionality where the criteria are different.
We have no doubt that reform of the prisoner, as a social defencl}
strategy, is high on the agenda of Indian penal policy reform. The -1···
question is whether a 14-year term as a mandatory minimum, is SQ
extremist and arbitrary as to become unconstitutional, even assuming
the rehabilitatory recipe to be on our penologicaLphannacopea, Wr.
cannot go that far as judges, whatever our personal dispositions may
incline us were we legislators.
c: Two broad grounds to negative this extreme position 5trike us,
Deterrence, as one' valid punitive component has been a.ccepted in
Sunil Batra( 1 ) by a five-judge bench (see Desai J. supra). So, a,
measure of minimum incarceration of 14 years for the gravest cla.Ss
of crimes like murder cannot be considered shocking, having .regard
to the escalation of norrendous crime in the country and the 1.1act that
this court has upheld even death penalty Oi.mited thougb to. 'the

(I) Sunil Bam1 v. Delhi Administration J19,78] 4 .SC,:.C 494· at S79, ·• (',
. MARU RAM v. UNION OF. INDIA (Krishna Iyer, 1.) 1233.

rarest ·of rare cases'('). The time has not, perhaps, arriled to ex-
. elude deterrence and ,c.-en public denunciation itltogether. Secondly,
;>-
even for correctional therapy, a long 'hospitalisation' in prison may
!!Omctir:ies be needed. To change a man's mind distorted by many
baleful events, many primitive pressures, many evil companies and
many environmental pollutions, may ·not be an instant magic but a
slow process-assuming that correctional strategies are awarely avail-
able in prisons, 'a consummation devoutly to be wished' but notori-
ously, rather victoriously, absent.
We agree that many studies by criminologists, high-powered
commissions and court pronouncements have brought home the truth
'!lf the lie; once a murderer always a murderer and, ther;fore, early
release will spell a hell of manslaughter. Social ~dentists must accept
Robert Ingersoll's tart remark : "In the hist:ory of the world, the man
who is ahead has always been called a heretic". We, as Judges, hav~
no power to legislate but only to invigilate. In the current state of
things and ethos of society we have to content ourselves wi!h th·~
thought that, personal . opinions apart, a very long term in prison.
for a murderer cannot be castigated as so outrageous as to be utterly
°' '
arbitrary ·and violative of rational classification between lifers and
lifers and as so blatantly barbarous as to be irrational .enough to be
struck down as .ultra vires,, Even the submission that no penal alibi
justifies a prisoner being kept walled off from the good earth if, by his :c:
conduct, attainments and proven normalisation, he has become fit to
be. a free citizen, cannot spell unconstitutionality. And the uniform
infliction of a 14-year minimum on the transformed and the unkept
is an unkind disregard for redemption inside prison. Even so, to
overcome the constitutional hurdle much inore. material, research
results and specialist reports, arc needed. How to assert who has .F
become wholly habilitated and who not, unless you rely on the Reha-
'y-bilitation Index ?( 2 ) Currently, we have theories, and experiments
awaiting social scientists' certificates of "certitude.
For ins:ancc, deep relaxation recipes and meditational techniques,
• researched with scientific tools, well-known and sophisticated experi-
G
ments, neurological and psychological, claim .to have achieved a break-
through and has pnt across to the scientific world a Rehabilitation
Index. This complex of 1ests, reference to which, culled from a
publication titled "Criminology and Consciousness, Series I," ( deve-
loped by the Maharshi European Research University according to
. (I) Bachan Singh v. State of Punjab [1980! 2 SCC 684.
11
• (2) ..Freedom Behind Bars -Criminology and Consciousness, Serles I 1979,
0

lt-fa.harild European Research University Press publicatioli P. 73. ·
J234 SUPREME 'coURT REPORTS [1981] 1 S.C.R.

A scientifically established standard measures of sucr,essful rehabilita-
tion), as credentials enough to be t1aken cognisance of in some
Indian Prisons. There are sceptics and scepticism is good because it
'is the chastity of' the intellect'. But to dogmatic disbelievers one may
.only say with John Dewey : "Every great advance iJ?- science has
issued from a new audacity of imagination". But court\;, when assay-
ing constitutionality, have to wait till the Establishment accepts it
in some measure. So, we are not now in a position to assert, as
Court, that at least a 14-year term for a murderer is arbitrary, un-
usually 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
c applies only 1to two classes of life-imprisonment. The true content
of the provision is that in the two specific categories specified in s.
:433A the prisoner shall actually suffer the minimum jail tenure set
in it. There are: around forty-one other offences, inc:luding attempt to
murder, homicide not amounting to murder, grievous hurt, . dacoity
u and breach of trust, where life sentence is the maximum. But the
framers of the Penal Code have classified maximum sentences prin~i
1

pally on the basis of gravity of the crime. By that token, where a
terrible crime has been committed the Penal Code has . prescribed
death penalty as 1the maximum. The attack on its constitutionality
has recently been repulsed by this Court. ( 1 ) The main mass of cases
E where life imprisonment is actually inflicted by the courts belongs to
· ·the "either or" category where the court has the responsible discre-
tion to impose death penalty or life imprisonment and actually awards
only life imprisonment. Even in cases where the court sentences a
convict to deatl1 the appropriate Government often by virtue of s.
433 (a) reduces the lethal rigour to life term. These classes of cases
are categorised separately by s. 433A. When the crime is so serious
as to invite death penalty as a possible sentence, Parliament, in its
wisdom, takes the view that ameliorative judicial award or statutory
commutation by the executive should not devalue the sterness of the
sentence to be equated with the life sentence awarded for the obvi-
:G ously less serious clauses of offences where the law itself has fixed a
maximum of only life imprisonment, not death penalty as a harsher
alternative. The logic is lucid although its wisdom, in the light of
penological thought, is open to doubt. We have earlier stated the
parameters of judicial restraint and, as at present advised, we are
not Sa!tisfied that the classification is based on an irrational differentia
IH unrelated to the punitive end of social defence. Suffice it to say
here, the classification, if due respect to Parliament's choice is given,
O) [19201 2 sec ·684.
'.

MARU RAM v. ~ION OF-INDIA (Krishna Iyer, J.)

. cannot be castigated as a capricious enough to attract the lethal A
.,consequence of Art. 13 read with Art. 14. Law and Life deal in
.relatives, not absolutes. No material, apart from humane hunches,
has been placed by counsel whose focus has been legal, no~ social
.'Seience-oriented, to show that prolonged jail life reaches a point of
.. no return and is unreasonable. On the materials now before us, we
-do not strike down s. 433A on the score of capricious, classification .
..Some day, when human sciences have advanced far beyond and non-
institutional alternatives have fully developed, parliamentary faith in
the fourteen-year therapy may well change or be challenged as unscien-
·:tific credulity and superstitious cruelty. But that is a far-away day
,and futurology is not a forensic speciality. The womb of tomorrow
.may hold, like Krishna to Kamsa, lethal omen to the faith of to-day.
c
;we rest content with Bertrand Russel's words of scepticism. ( 1 )
The essebce of the Liberal outlook lies not in what opinions
are ,held, but in how -they are held : instead of being held dogma-
tically they are held tentatively,· and with a consciousness that
new evidence may at any moment lead ~o their abandonment. 1D
This is the way opinions are held in scienc:e, as opposed to the
way in· which they are held in theology.
The major submissions which deserve high consideration may
·now be taken up. They are three and important in their outcome in
·the prisoners' freedom from behind bars. The first turns on the
'prospectivity' (loosely so called) or otherwise of s. 433A. We have :E
already held that Art. 20( 1) is not, violated but the present point is
whether; on 'a correct construction~ those ·who have been convicted
prior to the coming into force of s. 433A are bound by the mandatory
limit. If such convicts are out of its coils their cases must be consi-
dered under the Remission Schemes and 'Short-sentencing' laws. The F
second pilea, revolves round 'pardon jurisprudence', if we may coar-
·.sely call it -that way, enshrined impregnably in Arts. 72 and 161
and the effect of s. 433A thereon. The power to remit is a constitu-
tional power and any legislation must fail which seeks to curtail its
scope and emasculate its mechanics. Thirdly, the exerCise of this
:Plenary power cannot be left to the fancy, frolic or frown of Govern- G
ment, State or Central, but must embrace. reason, relevance and
reformation, as all public power in a republic must. On this basis,
we will llave to scrutinise and screen the survival value of the various
Remission Schemes and short-sentencing projects, not to test their
supremacy over s. 433A, but to train the wide and beneficient power
to remit life sentences without the hardship of fourteen fettered H
. years.
(I) Unpopular i£ssays: Philosophy and Politics.

. ..•JOii
· 1236 SUPREME COURT REPORTS {1981] 1 S.C.R.

A Now to the first point. I.t is trite law that civilised criminal
jurisprudence int(:rdiots retroactive impost of heavier suffering by a
later law. Ordinarily, a criminal legislation must be so interpreted
as to speak futuristically. We do not mean to enter the area of Art.
20(1) which has. already been dealt with. What we mean to do is
so to read the predicate used in s. 433A as to yield a natural result,
a humane consequence, a just infliction. While there is no vested
.right for any convict who has received a judicial sentence to contend
that the penalty should he .softened and that the law which compels
the penalty to bi~ carried out in full cannot apply to him, it is the
function of the court to adopt a liberal construction when dealing
with a criminal. statute in the ordinary course of things. This humanely
c inspired canon, not applicable to certain terribly anti-social' cate-
gories may legitimately be applied to s. 433A. (Thi~ sound rntionale
is that expectations of convicted citizens of regaining freedom on
existing legal practices should not be frustrated by subsequent Jegisla-
1ion or practices unless the language is beyond doubt). Liberality in
D ..ascertaining tlhe- sense may ordinarily err on .the side of liberty where·
the quantum of deprivation of freedom is in issue. In short,. the
benefit of doubt., other things being equal, must go to the citizen in
penal statute. With this prefatory caution, we may read the Section.
"Where a sentence of imprisonment for life is imposed on conviction
of a person .. ; ...... such person shall not be released from prison
E, unless he had served atleast fourteen years of imprisonment". Strict
confurmity to tense applied by a precision grammarian may fault the
draftsman for using the past-perfect tense. That apart, the plain
meaning of this clause is that "is" means "is" and, tlhereflore, if a
.person is senten·.:ed to imprisonment for life after s. 433A comes into
force, such sentence shall not be released before the 14-year condition
F
set-out therein is fulfilled. More precisely, any person who has been
convicted before s. 433A comes into force goes out of tlhe pale of
the provision and will enjoy such benefits as accrued to him before
s. 433A entered Chapter XXXII. The other clause in the provision
suggests the application of the mandatory minimum to cases of com-
G Jlllltation which have already been perfected, and reads : "Where a
sentence of death ..... . has been commuted under s. 433 into one
of imprisonment for life, such person shall not be released from prison
unless he had served atleast fourteen years · of imprisonment." The
draftsman, apparently, is not a grammarian. He uses the tenses
without being finical. We are satisfied that even this latter clause
H merely means that i£ a sentence of death has ,been commuted after thiJ
Section comes 1'nto force, such person shall not be released until the
condition therein is complied with. 'Is' and 'has' are not words which
MARU RAM v. UNION OF INDIA (Krishna Iyer, J.) 1237

are weighed in ,the scales of grammar nicely enough in this Section
' ' and, ·therefore, over-stress on the present tense and the present-perfect
tense may not be··· a clear indicator. The general rule bearing on
ordinary penal statutes in ·their constructio.n must govern this case. In
another. situation, interpreting the import of "has been sentenced"
this court held that "the language of the clause is neutral" regarding
prospectivity.(1) It inevitably follows that every person who has been
convicted by the sentencing court before December 18, 1978, shall be
entitled to the benefits accruing to him from the Remission Scheme
or short-sentencing project as if s. 433A did not stand in his way.
The Section uses the word 'conviction' of a person and, in the·context,'
it must mean 'conviction' by the sentencing court; for. that first
quantified his deprivation of personal liberty.
c -
We are mindful of one anomaly and must provide for its elimi-
nation. If the trial court acquits and the higher court convicts and it
so happens that the acquittal is before S. 433-A came into force and
the conviction after it, could it be that the convicted person would D
be denied· the benefit of prospectivity and consequential non-applica-
tion of S. 433-A merely because he had the bad luck to be initially
acquitted? We think not. When a person is convicted in appeal,
it' follows that the appellate court has exercised its power in the place
of the griginal court and the guilt, conviction and sentence must be
substituted for and shall have retroactive effect from the date of E
judgment of the trial court. The appellate conviction must relate back
to t.f!.e date of the trial court's verdict and substitute it. In this view,
c·ven if the appellate court reverses an earlier acquittal rendered before
S. 433-.A: came ;nto force but allows the appeal and convrct3 the,
accusr~d, after S. 433-A came into force, such persons will also be
entitkd to the benefit of the remission system. prevailing prior to
S. 433-A on the basis we have explained. An appeal is a continua-
tion ;.if an appellate judgment as a replacement of the original judg-
ment.

We now move on to the second contention which deals with thi:
G
power of remission under the Constitution and the fruits of its exercise
vis a vis S. 433-A. Nobody has a case-indeed cari be heard to con-
tend-that Articles 72 and 161 must yield to S. 433-A. Cooley has
rightly indicated that 'where the pardoning power if> vested exclu-
sively in the (top executive) any law which restricts <the power is
unconstitutional'. Rules to facilitate the exercise of the power stand
(1) Boucher Pierre Andre .v. Supdt. ·Central ;Jail, Tihar [1975] 1 SCR !92,
at 19'1,
. '
18-{) S.C. India/ND/81
\238 ' SUPREME COURT REPORTS [1981] 1 S.C.R.

A. on a different footing. (1) The Constitution is the suprema lex and
any legislation, even by Parliament, must bow-before it. It is not
necessary to delve into the details of these two Articles; nor even to
trace the antiquity of the royal prerogative which has transmigrated
into India through the various Westminster statutes, eventually to
blossom as the power of pardon vested in· the President or the
JS Governor substantially in overJapping measure and concurrently
exercisable.
The present provisions (ss. 432 and 433) have verbal verismi-
litude 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. We
will examine ~his aspect a little later. Suffice it to say that Arts. 72
D and 161 are traceable to s. 295 of the Government of India Act., 1935.
The Central' Law Commission has made certain observations based
on Rabha's case (2) to the effect ,that the effect of granting pardon
is not to interfere with the judicial sentence but to truncate its execu-
tion. There is no dispute regarding thls branch of pardon jurispru-
dence. What is urged is that by ithe introduction of s. 433A, s. 432
is granted a permanent 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
F power under the CoI)stitution. We are unconvinced by the submis-
sions of counsel in this behalf.
It is apparent 'that superficially viewed, the two powers, one
constitu~ional and the other s·tatutory, are co-extensive. But two things_
may be similar but no.t the same. That is precisely the difference.
We cannot agree that the power which is the creature of the Code can
G be equated with a high prerogative vested by the Constitution in the
highest functionaries of the Union and the States. The source h'
different, the substance is different, the strength is different, although
the stream may be flowing along the same bed. We see the· two
powers as far from being identical, and, obviously, the constitutional
power is 'untouchable' and 'unapproachable' and cannot suffer the
(1) Cooley's Constitutional Limitations, Vol. 1, 4th Edn. p. 218.
(2) [1961] 2 SCR. 133.
" ' MARU RAM v. ·UNION ,OF INDIA (Kr}.rh,na Iyer, ·J.) '1239

'Vicis.situdes. of simple legislative' processes~ . Therefore, s. 433A cannot A.
.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 1the legislative power of Parliament. ·
' 72
· Even so, we must remember the constitutional status of Arts.
161 and it is common ground that s. 433A does not and cannot B.
affect even a wee-bit the pardon power of the Governor or the
President. The necessary sequel to this logic is that notwithstanding
·s. 433A the President and the Governor continue to. exercise the
power of commutation and release under the a!Jresaid Ar·ticles.
Are we back to Square one ? Has Parliament indulged in legis~ ~
htive futility with a formal victory but a real defeat? The answer
is 'yes' and 'no' Why 'yes'? because the President is symbolic, the
Central Government is· the. reality even as the Governor is the formal
head and sole 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 D
Governor likes it m 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 constitutional cour-
tesy, it is obligatory that the signature of the Governor should autho- E
rise the pardon, commutation or release. The position is substantially
the same regarding the President. It is not open either to the Presi-
dent 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 £ystem that the Cabinet rules• and the Queen
· reigns. Being too deeply rooted as foundational to our system no F
:serious encounter was met from the learned Solicitor General whose
sure grasp of fundamentals did not permit him to controvert the pro-
position, 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
G
.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(1). So, we agree, even without reference to Art, 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 Arts. 72 and 161, the
two highest dignitaries in our' constitutional scheme act and must act
mot on their own judgment but in accordance with the aid and advice·
(1) Shamsher Singh & Anr. v. State of Punjab [1975] 1 SCR 814~

' .
1240 SUPREME COURT REPORTS [1981] 1 S.C.R.

A of the ministers. Article 74, after the 42nd Amendment silences
speculation and obligates compliance. The Governor v'is a vis his
Cabinet is no higher than the President save in a narrow area which
does not include Art. 161. The Constitutional conclusion is that the
Governor is but a shorthand expression for the State Government
and the President is an abbreviation for the Central Government.
B An issue of deeper import demands our consideration a~ this stage
of the discussion. Wide as the power of pardon, commutation and
release (Arts. 72 and 161) is, it cannot run riot; for no legal power
can run unruly like John Gilpin on the horse but must keep sensibly
to a steady course. Here, we come upon the second constitutional
c fundamental whii:h underlies the submissions of counsel. It is that
all public power, including constitutional power, ~hall never be exer-·
cisable arbitrarily or mala fide and, ordinarily, guidelines for faif
and equal execution are guarantors of the valid play of power, We
proceed on the basis that these axioms are valid in our constitutionat
order.
D The jurisprudence of con1<titutionally canalised power as spelt
out in the second proposition also did not meet with serious resistance
.from the learned Solicitor General and, if we may say so rightly.
Article 14 is an expression of the egalitarian spirit of the Constitution
and is a clear pointer tha~ arbitrariness is anathema under our sys.tern.
It necessarily follows that the power to pardon, grant remission and
E
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 ( 1 ) this court stated :
"The rule inhibiting arbitrary action by Government which ~·
F we have discussed above must apply equally where such corpora-
tion is dealing with the public, whether by way of giving jobs or
entering into contracts or otherwise; and it cannot act arbi-
trarily and enter into relationship with 'any person it likes at its
sweet will, but its action must be in conformity with some
principle which meets the test of reason and relevance.
G
This rule also flows directly from the doctrine of equality
embodied 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( 2 ) and Maneka Gandhi v. Union of India( 3 ) that Article
(I) R. D. Shetty v. International Airport Authority [19791 3 SCC 489 at
H 511-512.
(2) [1974] 2 SCR 348.
(3) [t978J 1 sec 248.
MARG RAM v. UNION ·OF INDIA (Krishna Iyer, J.) 124·1

. . , 14 strikes at arbitrariness in. State· action and ensures f~imess and
equality of treatment. It requires that State action must: not be
arbitrary but must be based. on some rational and relevant prin-
·ciple which is non-discriminatory; it must not be guided by any
extraneous or irrelevant considerations, because that would be
denial of equality~ The principle of Teasonableness and rationa-
lity which is legally as well as philosophically an essential
element of equality or non-arbitrariness is projected by Article 14
and it must characterise every State action, whether it be under
authority of Jaw or in exercise of executive power withont making
of law."
Mathew, J. In V. Punnan Thomas v. State of Kera/a ( 1 ) observed : C.,
"The Goyernment, is not and should ncit be as free as an
individual in selecting the recipients for 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
D.
and capricious standards for the choice· of persons with whom
. alone it will deal.
IJ; we excerpt ,again from the Airport Authority case :(2) \'
· Whatever be the concept of the rule of law, whether it be
the meaning given by Dicey in his "The Law of the Constitu- ·
tion" or the definition given by Hayek in his "Road to Serfdom" E
and "Constitution of_ Liberty". or the exposition set forth by Harry
Jones in his "The Rule of Law and the Welfare State", there is
as pointed out by Mathew J., in bis article on "The Welfare
State, Rule of Law and Natural Justice" in "Democracy,
Equality and Freedom~'( 3 ) "Substantial agreement in Juristic.
thought that the great purpose of the rule of law notion is the F
protection of the individual. against, arbitrary exercise of power,
wherever it is found". It i!> indeed uqthinkable tlrnt in a demo-
cracy governed by the rule of Law the executive Government or
any of its oincers should possess ·arbitrary power over the inte-
rests of the individual. Every action of the Executive Govern-
ment must be informed with reason and should be free from.
arbitrariness. That is the very essence of the rule of law and
\' its bare minimal· requirement. And -to the application of· . this
principle it makes no differe~ce whet~er the exercise of the power
involves affectation of some tight or denial of some privilege. ·
(1) AIR 1969 Ker 81. It
(2) [1979] 3 sec 489 at 504·505.
(3) Upendra Baxi, Ed. Eastem Book c::;o.,. Lucknow (1978) p.~ 28 ...
SUPREME COURT REPORTS [f9'8l'] 1 S.C.R.

.... Tfa~ discretion or the Government has been held to bet
not -unlimited in that the Government cannot give or withhold
largesse in its arbitrary discretion or at its sweet will. It is
insisted, as pointed out by Prof. Reich in an specially stimulating
article on "The New Property" in 73 Yale Law Journal 733,
"that Goverrnnent action be based on standards tliat are not
B arbitrary or unauthorised." The Government cannot be permitted
to say that it will give jobs or enter into contracts or issue quotas
or licences only in favour of those having grey hair or belonging
to a particular political party or professing a particular religious
faith. The Government is still ,the Government when it acts hr
the matter of granting largesse and it cannot act arbitrarily. It
c does not stand in the s1:1me position as a private individual.
It is the pride of our constitutional order 1that all power, whatever its
source, must, in its exercise, anathematise arbitrariness and obey
standards and guidelines intelligible and intelligent and integrated with
the manifest purpose of the power. From this angle even the power
D
to pardon, commute or remit is subject to the wholesome creed that
guidelines should govern the exercise even of presidential power.

Speaking generally, Lord Acton's' dictum deserves attention :(1}
I cannot accept your canon 1hat we are to judge Pope and
King unlike other men, with a favourable presumption that they
did no wrong. If there is any presumpti:on it is the other way,
against the holders of power, increasing as the power i:ncreases.

Likewise, Edmund Burke, the great British statesman gaye correct
counsel when he: said : ( 2 ) ~
F All persons possessing a portion of power ought to be
strongly and awfully impressed with an idea that they act in
trust, and tl!&~ they are to accoun~ for their conduct in that tru~t
to the one great Master, Author, and Founder of society.
Pardon, using this expression in the amplest connotation, ordains
G fair exercise, as. we have indicated above; Political vendetta or party
favouratism cannot but be interlopers in this area. The order which is
the product of c:xtraneous or mala fide factors will vitiate the exercise.
While constimimlal power is beyond challenge, its actual exercise may
still be vulnerable. Likewise, capricious criteria will void the exercise.
For example, if the Chier Minister of a State releases every one in the
a· (1) Letter to Mandell (later, Bishop) CreigJiton, April 5, 1887 Historical
Eisays and Studiei;, 1907.
(2) Reflections on the Revolution in France 179G.
.MARU RAM v. UNION OF INDIA (Krishna Iyer, J.) 124 3

prisons in his State on his birthday or because a son has been born A
, to him; i~ will be an outrage on the Constrtution to let such madness·
survive. We make these observations because it has been brought to
our notice that a certain Home Minister's visit to a Central Jail was
considered so auspicious an omen that all th_e prisoners in the jail
were given substantial remissions solely for this reason. Strangely
enough, this propitious circumstance was discovered an year later B
and remission order was issued long after the Minister graced the
penitentiary. The actual order passed on July 18, 1978 by the
Haryana .Government reads thus :( 1)
In exercise of the powers conferred under Article 161 the
Constitution of India, the Governor of Haryana grants special
remissions on the same scale and. terms as mentioned .in Govt
'of India, Ministry of Home Affairs letter No. U. 13034/59/77
·dated 10th June, 1977 to Prisoners who happened to be confined
in Central Jail, Tihar, New Delhi on 29th May, ·1977, at the
time of the visit of Home Minister Govt. of India, to the said Jail
and who hfis been convicted by the Civil Courts of Criminal l>.
Jurisdiction in Haryana State.

A. BANERJEE
. :;- ' i"
Secretary to Govt. ofHaryana
Jails. Department ·
Dated : Chandigarh, the
18th July, 1978.
Push this logic a little further and the absurdity will be obviol,ls. No
Constitutional power can be vulgarised .by personal vanity of men
in· authority. Likewise, if an opposition leader is sentenced, but the F
circumstances cry for remission such as that h!! is suffering from
cancer or that his wife.is t~rminally ill or that he has completely re-
formed himself, the power of remission under Arts. 72/161 may
ordinarily be excerised and a refusal may be wrong-headed. If, on
the other hand, a brutal murderer, -blood-thirsty in his massacre, has
been sentenced by a court·w!th strong observations about his bestia-
lity, it may be arrogant and irrelevant abuse of power to remit his
entire .-!_ife sentence the yery. next day after the conviction merely
because he has joined the party in power or is a clo,se relatfonof a
political high-up. The court, tf it finds frequent misuse of this power
may ·have to investigate the discrimination. The proper thi'ng to do, H
if Government is to keep faith with the founding fathers, is to make
(l) No. 41/8/78/JI (SJ, dated Chandigarh, the 28th•Iuly,l1978.'
~ ,
-
1244 SUPREME COURT REPORTS [1981)- 1 5.C.R.

A rules' for its own guidance in the exercise of the pardon power keep-
ing, of course, a large residuary power to meet special situations or
1

sudden developments. This will exclude the vice of discrimination
such as may arise where two persons· have been convicted and sentenc-
ed in the same case for the same degree of guilt but one is released
and the other refused, for such irrelevant reasons as religion, caste,
B colour or. political loyalty.

Once we accept the basic thesis that the public 'power vested on
a high pedestal has .to be exercised justly <the situation becomes
simpler. The pri.ncipal considerations will turn upon social good by
remission or release. Herc, we come back to the purpose of imprison-
c ment and the point of counter-productivity by further prolongation of
incarceration. But when is this critical point reached? Bitter verse
. burns better into us thrs die-hard error :(1)
This too I know-and wise it were
If each could know the same-
D·
That every prison that men build
If built with· bricks of shame,
And bound with bars lost Christ should see
How men th1!ir brothers maim.

Pre,ident Carter i;;hen he was Governor of Georgia', addr~sing a Bar
Association, said : · ·

In our prisons, which in the past have been a disgrace to
Georgia, we've tried to make substantive changes in the quality
of those who administer them and to put a new realm of under-
standing and hope and compassion into the administration of that
portion of the system of justice 95 per cent of those who arc
presently incarcerated in prisons will be returned to be our
neighbours, and now the tbrust of the· entire program, as initiated
under Ellis I\1acDougall and now continued under Dr. Ault, is
G to try to discern in the Soul of each convicted and sentenced
person redecmhig 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 indi-
cate. .the efficacy
~ . .. ..
of what we've. done.
.
. . .
H
All these go to prove that the length of imprisonment is not rege-
nerative of the goodness within and may be proof of the reverse-a
(I) The Ballad of Readin'g Gaol.

-
'MARU RAM v. UNION OF INDIA (Krishna Iyer, J.) <124 J5•,

calamity which may be averted by exercise of power under Art. 1"61, A
especfally when the circumstances show good behaviour, industrious
conduct, social responsibility and humane responses which are usually
reflected in the marks accumulated in the shape of remission. Ip short,
the rnles of remission may be effective guidelines of a recommendatory
nature, helpful to Government to release the prisoner by remitting the
remaining term. B

The failure of imprisonment as a crime control tool and the search
for non-institutional alternatives in a free milieu, gain' ·poignant
pertinence while considering the mechanical exclusion of individualised
punishment by s. 433A, conjuring up the cruel magic of 14 years
behind bars-where 'each day is like a year, a year whose days ar~ c
long'-as 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 Imprison-
ment" (a 1979 publication) the authors start off with the statement :(1_}

"The failure of imprisonment has been one of the· most D
noticeable features of the current crisis in criminal justice system
in advanced industrial or post-industrial societies such as r
Australia, Britain, Canada and the United States. One justifica-
tion after another advanced in favour of the use of imprisonment
has been shown to be misconceived: At best, prisons are able to
j>rovide a form of crude retribution to those unfortunate to be
~1pprehended. At worst, prisons are brutalising, cannot be shown
to rehabilitate or deter offenders and are detrimental . to ·the
re-entry of offenders into society. Furthermore, the heavy reli~
ance upon prisons, particularly maximum security institutions
with their emphasis upon costly security procedures, has led ·to
an inordinate drain upon the overall resources devoted to the
c:riminal justice area."

Likewise, in many current research publications the "thesis is the same;
Unless a tidal wave of transformation takes place George Ellis will be
proved right : ( 2 ) G
•• 'There are many questions regarding our: prison systems and
their rehabilitative quality. Observers from inside the walls find·
pris_ons to be a melting pot oftension and anxiety.
. Tension and. ,...

(!) "The Failure of lmpriso~:nent" Roman Tomasic and Ia;
Dobinson~ ,
An Australian Perspective. ·Law in Society No. 3, George A.lion and Onwin; H
p. }. I • . · .

· {1).lnside Folsom Prison, An ETC Pubiication, p. 24-25.
1246 SUPREME COURT REPORTS [1981] 1 S.C.R.

A anxiety are the result of a variety of abnormal conditions. Prisons,
including the so-called model prisons, rob a man of his indi:vi-
dual identity and dignity.

Contrary to popular opinion, all convicts are not rock-hard
8 individuals lacking sufficient emotional balance. They are people
with fears and aspirations like everyone else. Generally, they
don't want '10 fight with oi· kill their neighbour any more than the
mail on the street. They want to live in peace and return to
· ,their loved ones as soon as possible. They are not a different -- /
breed of human being or a distinct type of mentality.• They are
c 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.

D
The rule of law, under our constitutional order, transforms al!
public power into responsible, responsive, regulated exercise informed
by high purposes and geared to people's welfare. But the wisdom
and experience of the past have found expression in remission rules
and short-sentendng laws. No new discovery by Parliament in 1978
E about the futility or folly of these special and local experiences,
spread ever several decades, is discernible. No High-power com-
mittee report, no expert body's recommendations, no escalation in
recidivism attributable to remissions and releases, have been brought
to our notice. Impressionistic reaction to some cases of prematur.,.
release of murderers, without even a followup study of the later .Jifo
F of these quondam convicts, has been made. We find the rise of
enlightenment in penological alternatives to closed prisons as the
current trend and failure of imprisonment as the universal lament.
We, heart-warmingly, observe experiments in open jails, filled by
lifers, liberal parC'le~ and probations, generosity of juvenile jusfa:e:
and licensed release or freedom under leash~a la The Uttar Pradesh
G Prisoners' Release on Probation Act, 1978. We cannot view without
gloom the reversion to the sadistic superstition that the longer a life-
convict is kept in a cage the surer will be his redemption. It is our
considered view that, beyond an optimum point of, say, eight years--
·we mean no fixed formula-prison detention bemumbs and makesc
nervous wreck or unmitigated brute of a prisoner. If animal farms;
are not reformatories, the Remission Rules and short-sentencing.
schemes are humanising wheel of compassion and reduction of psy-·
chic tension. We ·have .no hesitation to reject the notion that
HARU I.AM v. UNION OP INDIA (Krishna Iyer, J.) :12411

Arts'. 72/161 should remain uncanalised. We have to direct the pro•
visional acceptance of the remission and short-sentencing schemes
.,
.
aS good guiddim:s for exercise of pardon power-a jurisdiction meant
to be used as often and as systematically as possible and not to be
abused, much as the temptation so to do may press upon the pen of
power.
B
The learned Solicitor General is right that these rules are plainly
made under the Prisons Act and not under the oonstitutional power.
The former fails under the pressure of s. 433A. But that, by no
means.. precludes the States adopting as working rules the 5ame
remission schemes which seem to us to be fairly reasonable. After
all, the Government cannot meticulously study each prisoner and c
th~ present praxis of marks, until a more advanced and expertly
advised scheme is evolved, may work. Section 433A cannot forbid
this ·method because it is immunised by Art. 161. We strongly
suggest that, without break, the same rules and schemes of remission
be continued as a transmigra~ion of soul into Art. 161, as it were,
and .. benefits· extended to alL who fall within their benign orbit-save, D
of course, in special cases which may require other relevant consi~
derations. The wide power of executive clemency cannot be bound
.down even by self-created rules.
One point remains to be clarified. , The U.P. Prisoners' Release
on Probation Act, 1938, a welcome measure, what with populati:on :S
pressure on prisons and burden on the public exchequer, will survive
s. . 433A for two reasons. Firstly, Government may resort to the
statutory scheme, not qua law but as' guideline. Secondly, and more
importantly, the expression 'prison' and 'imprisonment' must receive
a wider cpnnotation and include any place notified as such for deten • ,
tion purposes. 'Stone walls and iron bars do not a prison make'; nor
are .'stone walls and iron bars' a ~ine qua non to make a jail. · Open
jails are capital instances. Any life under the control of the State, ·
whether within the high-walled world or not, may be a prison if the
law regards it as such. House detentions, for example. Palaces, where
Gandhiji was detained, were prisons. Restraint on freedom under
the prison law is the test. Licensed releases where instant re-capture :a
is sanctioned by the law, and, likewise, parole, where the parole is
-:q() .free agent, and other categories under the invisible fetters of the
prison law may legitimately be regarded as' imprisonment. This point
is necessary to be cleared even for computation of 14 years under
s. 433A. Sections 432, 433 arid 433A read together, lead to the
in(erence we have drawn and liberal though guarded, use of this Act H
may do good. Prison reform, much bruised about though, is more
, Wible .on 'the. skin than in the soul and needs a deeper .stirring or
1248 SUPREME COURT REPORT&c'.·''. ~·; [1981] 1 S.C.R.

consciousness than tantrums,' threats and legalised third degree, if th'e
authentic vorce of the Father of the Nation be our guide. To chain
the man is not to change him; the error is obvious - a human is ·
more than simian. Our reasoning upholds s. 433A of the Procedure 'l
Code but upbraids the abandonment of the healing hope of remissions
and release betimes. To legislate belongs to another branch but when:
B justice rs the subject the court must speak. There was some argument
that s. 433A is under.stood to be a ban on parole. Very wrong..The
Section does not obligate continuous fourteen years fa jail and so
parole is permissible. We go further to say that our Prison Administra~
tion should liberalise parole to prevent pent-up tension and sex perver- . __../,
sion which are popular currency in many a penitentiary (see Sethna;
"Society and the Criminal" Tripati publications,. 4th Edn. p. 296) ..

We conclude by _formulating our findrngs.
1. We repulse all the thmsts on the vires of s. 433A. Maybe,
penologically the prolonged terms prescribed by the Section- is' Super-
erogative. If we had our druthers we would have. negatived the need
D
for a fourteen-year gestation for reformation. But ours is to construe,·
'not construct, to decode, not to make a code. '
2. We affirm the current supremacy of s. 433A over the Remis-
~ion Rules and sJ1ort-sentencing statutes made by the various States.
·
3. ·We uphold all remissions and short-sentencing passed· under
Articles ,72 and 161 of the Constitution but release will follow, in life
sentence cases, only on Government making an order en masse or
individually, in that behalf. ·
4. We hold that s. 432 iind s. 433 are not a manifestation· of
Articles 72 and 161 of the Constitution but a separate, though similar,
power, and s. 433A, by nullifying whol.Jy or partially these prior
provisiom does not violate or detract from the full operation of the
.constitutional power to pardon, commute and the like.
5. We negate the plea that s. 433A contravenes Article 20(1)
of the Constitution.
6. We follow Godse:s case (supra) to hold that imprisonment
for life lasts until the last breath, and whatever the length of remis-
sions earned, the prisoner can daim release only if the remaining sen·
_tence 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 againstthooe ·whose
/
: "MARU RAM'V. UNION OF INDIA •(Krishna Iyer, J.) 12~'SJ

cases were decided by the trtal court before the 18th December, 1978
(directly or retro-actively, as eixplained in the judgment) when
, s. 433A came into force. All 'lifers' whose conviction by the court
of first instance was entered prior to that date are entitled to conside-
ration by Oovcrninent for release on the strength of. earned remis-
sions although a release can take place only if Government makes
an order to that effect. To this extent the battle of the tenses is won
by the prisoners. It follows, by the same logic, that short-sentencing '
legislations, if any, will entitle a prisoner to claim release there-
under 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 c
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-
tion of. mind to the whole group. ·
9, <:;onsiderations for exercise of power under Articles 72/161
may be myriad and their occasions protean, and are left to the
appropriate Government, but no consideration nor occasion can be
wholly irrelevant, irrational, discriminatory or ma/a ·fide. . Only in
these rare cases will the court examine the exercise.
, 10. Although the remission rules or short-sentencing provisions E
p'roprio vigore may not apply as against s. · 433A, they wi11 override
s. 433A if the Government, Central or State, guides itself by' the self-
same rules or schemes in .the exercise of its con~titutional power.
We regard it as fair that until fresh rules are made in keeping with
experience gathered, current social conditions and accepted peno-
logical thinking- a desirable step, in our view-the present remis-
sion and release schemes may usefully be taken as guidelines urtder
Articles 72/161 and orders for release passed.' We cannot fault the
Government, if in some intractably savage delinquents, s. 433A is
itself treated as a guideline for exercise of Articles 72/161. These
observations uf ours are recommendatory to avoid a hiatus, but _it G:
is for Government, Central or State, to decide whether and why the '
current Remission Rules should not survive until replaced by a more
'!"holesome scheme.
11. The U. P. Prisoners' Release 'on Probation Act, 1938, ena- I
bling limited enlargement under licence wi11 be effective as legisla-
tively sanctioned imprisonment of a loose and liberal type and such ff
licensed enlargement will be reckoned for the purpose of the 14-year ' '
duration. Similar other statutes and· rules will enjoy similar efficacy.
1;2'5.0 SUPREME COURT REPORTS (1981] 1 S.C.R.

A\ 12. ·In our view, penal humanitarianism and rehabil!tative
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 zoo.s. Human rights awareness must infuse institutional
reform and search for alternatives. ·
B.
13. We hav~~ declared the law all right, but law-in-action fulfils .
itself not by declaration alone and needs the wings of communica-
tion to the target community. So, the further direction goes from
this court that the last decretal part is translated and kept prominently
in each ward and the whole judgment, in the language of the State,
made available !o the inmates in the jail library.
14. Section 433A does not forbid parole or other release within
the 14-year span. So to inte1pret the Section as to intensify inner
tension and taboo intermissions of freedom is to do violence to
language and lib1:rty.
D The length of this judgment (like the length of s. 433A Cr. P. C.)
could have been obviated but tile 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:
Ji:.
Our judges are not monks or scientists, but participants in
the living stream of our national life, steering the law between
the dangers of rigidity on the one hand and of formlessness on /
the other. Our system faces no theoretical dilemma but a single
continuous problem : how 10 apply tO ever-changing Conditions
F the never-changing principles of freedom.
(Fortune, November, 1955)

A Final Thought
Fidelity to the debate at the bar persuades us to remove a mis-
G 1apprehension. Some argument was made that a minimum sentence
cf 14 years' imprisonment was merited because the victim of the
murder must be remembered and all soft justice scuttled to such ...
heinous offender:;. We are afraid there is a confusion about funda-
mentals in mixing up victimolcgy with penology to warrant retributive
severity by the backdoor. If crime claims a victim criminology must
H 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 musr re'ceive reparation . and the. 59cial
·) '

MARU RAM v. UN!ON OF INDIA (Fazal Ali, J.) 1251

tespo11.sibility of the criminal to restore the loss or heal the injury A
is part of the punitive exercise. But the length of the prison term is
no reparation to the crippled or bereaved and is futility compounded
·with cruelty. 'Can storied urn or aniinated bust call to its mansion
·" the fleeting breath?' _Equally, emphatically, given perspicacity and
freedom from sadism, can flogging the killer or burning his limbs or
torturing his psychic being bring balm to the soul of the dead by any I
_process of thanatology or make good the terribleloss caused by the
homicide? Victimology, a burgeoning branch of humane criminal
justice, must find fulfilment, not through barbarity but by compul-
. ·sory 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 c
of victims as part of Article 41. So we .do not think that the manda-
~ tory minimum in s. 433A can be linked up with the distress of the
·dependants.
• We dismiss the Writ Petition vis a vis the challenge to s. 433A
·but allow them to the extent above indicated. The war is not lost
even if a battle be lost. Justice must win. The authorities concerned
· will carefully implement the directives given in this judgment. Since
personal Hberty is at stake urgent action is 1he desideratum.
FAZAL ALI, J.-While J concur with the judgment proposed
by Brother Krishna Iyer, J., I would like to express my own views
' on certain important features of the case and on the nature and
character of the reformatrve 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 unmis-
takably seems to be to secure a de~errent punishment for heinous F
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 modem trend of giving punishment a
colour of reformation'. so that stress may be laid on the reformation
of the criminal rather than his confinement in jail which is an ideal
objective. At the same time, it cannot be gainsaid that such an G
objective cannot be achieved without mustering the necessary faci"
... lities,_ the requisite education and the appropriate climate which must
be created to foster a sense of repentence and penitence in a criminal
so that. he. may undergo such a mental or psychological revolution
that he realises ihe consequences of playing with human lives. In ..
the world of today and particularly in our country, this ideal is yet H
to be achieved· and, fu fact, with all our efforts it will take us a long
time to reach this sacred goal.
12 52 SUPREME COURT REPORTS [1981] 1 S.C.R.

A 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 a~ t<>
what would have happened if capital puni:shment was abolished or
sentence of long imprisonment was reduced. Secondly, various
criminals react to various circumstances in different ways and it is
B difficult to foresee the impact of a particular circumstance on their
criminal behaviour. The process of reformation of criminals with
an unascertained record would entail a great risk as a sizable number
of criminals i:nstead of being reformed may be encouraged to com-
mit offences after offences and become a serious and horrendous
hazard to the society.
c
The question, therefore, is - should the country take the risk
of innocent live:s 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 an:: not born everyday and to expect that
D
our present generation, with the prevailing social and . economic
environment, would produce Valmikis day after day i:s to hope for
the impossible. I

Section 433A has advisedly been enacted to apply to a very
small sphere and includes within its ambit only offences under sec-
E tions 121, 132, 302, 303, 396, etc., of the Indian Penal Code, that
is to say, only those offences where death or life impri:sonmem are
the penalties but instead of death life imprisonment is given or
where a sentence of death is commuted to that of life imprisonment.

The problem of penology is not one which admits of an easy
F
soluti:on. The argument as· to what benefit can be achieved by
detaining a prisoner· 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 c:ommitting off1!nces so as to i:ncur the punishment of
G confinement for a good part of his life. The effect of such a punish-
ment is to be judged not from a purely ethical point of view but
from an ~mgle of vision which is practical and pragmatic.

Crime has rightly been described as an act of warfare against
the community touching new -depths of lawlessness. The object of
H imposing deterrent sentences is. threefold : -
(1) to protect the community against callous criminals for a
long time,

/
MARU RAM v. UNION OF INDIA (Fazal Ali, J.) 1253

(2) to administer as clearly as possible to others tempted to A
follow them into lawlessness on a war scale if they are
brought to and convrcted, deterrent punishment will follow,
and
(3) to deter criminals who are forced to undergo long-term
imprisonment from repeating their criminal acts in future. n
Even from the point of view of reformative form of punish-
ment "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. c
Explaining the material and practical advantages of long-term
· · ·~ imprisonment, Sir Leon Radzinowicz in his book 'The Growth of
Crin1e' aptly observes as follows :
"Long imprisonment could be regarded as the neat response to
all three requirements : it would put the miscreants behind bars D
for a long time; it would demonstrate that the game was not
wirth the candle for others." (p. 195)

The author gives examples in support of his views thus:
"Two English police officers were sentenced . to seven years'
E
imprisonment for accepting bribes and conspiring to pervert the
courts of justice, two others for hounding a vagrant. In Turkey
a similar sentence was passed upon a writer for translating and
publishing the works of Marx and Engels. In Russia the
manager of a mechanical repair shop was sentenced to death for
theft of state property. In the Philippines a Chinese business- F
man was condemned to public execution by firing squad for
trafficking in drugs: In Nigeria something like eighty peopie
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,
what has been called denunciation, a powerful reassertion or G
assertion of the values attacked." . (p. 197)
But, at the same time, it cannot be gainsaid that a sentence
out of proportion of the crime is extremely repugnant to the social
sentiments of a civilized society. This aspect of the matter is fully
taken care of by section 433A when it confines its application only H
to those categories of offences which are heinous and amount to a
(1) 'The Growth of Crime' By Sir Leon Radzinowicz.
19-6 S.C. India/ND/81

,
1254 SUPREME COURT REPORTS [1981] 1 S.C.R.

A callous outrage on humanity. Srr Leon Radzinowicz referring 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
B 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 gravity of crime&, and
a consistent guide to sentencers rather than an additional factor
c ir. discrepancies." (p. 216)

Similarly, the same author in Vol. Il of his book 'Crime and )
Justice' observes as follows : -
"the solution to which most recent efforts have come is that
the legislative function is best discharged by the creation of a
D
small number of distrnct sentencing categories ........ And it
can also serve to emphasize the futility of close line-drawing
iri an area where precision - to the extent 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)
E 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 ;1ppropriate sentence levels for
new offences." (p. 340)
F This is exactly what s. 433A of the Code of Criminal Proce-
dure seeks to achieve by carving out a small and special field, within
which alone the statutory provisions operate.

While I agree that the deterrent form of punishment may not
be a most suitable or ideal form of punishment yet the fact remains
G that the deterrent punishment prevents occurrence of offences by -
(i) making it impossible or difficult for an offender to break
the law again,
(ii) by deterring not only the offenders but also others from
committing offences, and
H
(iii) punishment or for that matter a punishment in the fonn of
a long-term imprisonment may be a means to changing a
MARU RAM v. UNION OF INDIA (Fazal Ali, J.) 1255

person's character or personality so that out of some A
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 con- B
sequences as well. Penalties must be sufficiently severe to deter
effectively."
Bentham has also pointed out that a penalty may be justified when
the distress it causes to the offenders and others rs not greater than
the distress that will result if he and others undeterred, offended in c
the future.
Ted Honderich after highlighting various aspects of the deterrent
form of punishment concludes as follows : -
"There are classes of offenders who are not deterred by the
prospect of punishment, it cannot be acceptable that a society D
should attempt to prevent all offences by punishment alone
. . . . . . . . . . In antic!pation 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."
E
I am not at all against the reformative form of punishment on
principle, which in fact is the prime need of the hour, but thi:s
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 succeed
people must be properly educated and realise the futility of com- F
mitting crimes. The author observes as below : -
"In sum, I have suggested that order was created by a criminal
act, that order cannot exist without a structured inequality.
Order and authority must be maintained by punishment, other-
wise there would be even more revolutions and wars than we
have had throughout history. G

People in criminal justice know only too well that the best
intentioned reforms often turn out to have unfortunate results.

H
Thus, for example, in the area of criminal s·entencing, a popular
area at present, practical moves to reform should be based
soundly on the historical precedents of criminal law and not on
20-6 S.C. India/ND/81
1256 SUPREME COURT REPORTS [1981] 1 S.C.R.

A 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 follow from this that sentencing reform should not be
achreved by new legislation, but by a close analysis and extra-
B polation from the already existing practice and theory of crimi-
nal law:"

Having regard to these circumstances I am clearly of the opinion
that s. 433A is actually a social piece of legislation which by one
stroke seeks to prevent dangerous criminals from repeatrng offences
c and on the other protects· the society from harm and distress caused
to innocent persons.
)

Taking into account the modern trends in penology there are
very ram cases where the courts impose a sentence of death and
even _if in some cases where such sentences are given, by the time
D the case reaches this Court, a bare minimum of the cases are left
where death sentences are upheld. Such cases are only those in
whrch imposition of a death sentence becomes an imperative neces-
sity having regard to the nature and character of the offences, the
antecedents of the offender and other factors referred to in the Con-
stitution Bench judgment of this Court in Bachan Singh v. State of
E Punjab. (1). In these circumstances, I am of the opinion· that the
Parliament in its wisdom chose to act in order to prevent crimrnals
committing heinous crimes from being released through easy remis-
sions or substituted forn1 of punishments without undergoing atleast a
minimum period of imprisonment of fourteen years whrch may in
fact act as a sufficient deterrent which may prevent criminals from
F
committing offences. In most parts of our country, particularly in
the north, cases are not uncommon where even a person sentenced
to imprisonment for life and having come back after earnrng a
number of remissions has committed repeated offences. The mere
fact that a long term sentence or for that matter a sentence of
G death has not produced useful results• cannot support the argument
either for abolition of death sentence or for reducing the sentence of
life imprisonment from 14 years to something less. The question is
not what has happened because of the provrsions of the penal Code
but what would have happened if deterrent punishments were not
given. In the present' distressed and disturbed atmosphere we feel
H that if deterrent punishment is not resorted to, there will be complete
chaos in the entire country and criminals will be let loose endangering
(t) [1980J 2 sec 684.
MARU RAM v. UNION OF INDIA (Fazal Ali, J.) 12 57

the lives of thousands of innocent people of our country. In spite A
of all the resources at its hands, it will be difficult for the State to
protect or guarantee the life and liberty of all the citizens, if crimi-
nals 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 B
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
commits three murders it is illogical to plead for the criminal and to
argue that his life should be spared, without at all considering what
has happened to the victims and their family. A person who has c
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. Liberty is not a one-sided concept, nor does
Art. 21 of th~ Constitution contemplate such a concept. If a person
commits a criminal offence and punrshment has been given to him D
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 E
impos.ed on him. These guarantees sufficiently comply with the
provisions of Art. 21. Thus, it seems· to me that while considering
the problem of penology we should not overlook the plight of victi-
mology and the suffering& of the people who die, suffer or are
maimed at the hands of criminals.
For these reasons, I am clearly of the opinion that in cases F
where s. 433A applies, no question of reduction of sentence arises
at all unless the President of India or the Governor choose to exer-
cise their wide powers under Art. 72·or Art. 161 of the Constitution
which also hrive to be exercised according to sound legal principles
as adumbrated by Brother Krishna Iyer, J. I, therefore, think that
G
any reduction or modification in the deterrent punishment would
far from reformrng the criminal be counter-productive.
Thus, on a consideration of the circumstances, mentioned
above, the conclusion is inescapable that parliament by enacting
s. 433A has rejected the reformative character of punishment, in
respect of offences· contemplated by it, for the time being in view H
of the prevailing conditions in our country. It is well settled that
the legislature understands the needs and requirements of its people
1258 SUPREME COURT REPORTS [1981] 1 S.C.R.

A much better than the courts because the Parliament consists of the
elected representatives of the people and if the Parliament decides
to enact a legislation for the benefit of the people, such a legislation
must be meaningfully construed and given effect to so as· to subserve
the purpose for which it i:s meant.
B Doubtless, the President of India under Art. 72 and the State
Goverrunent under Art. 161 have absolute artd 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 _,/'
i:ts exercise. This is particularly so because the present enactment
C has been passed by the Parliament on being sponsored by the Cen-
tral 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 s. 433A so as to create a conflict between
D the legislative intent and the executive power. It cannot be doubted
as a proposition of law that where a power is 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
aspects of the matter.
So viewed, I am uqable to find any real inconsistency between
E
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
F Iyer, J.
JfosHAL, J.-On a perusal of the judgment prepared by my
learned brother, Krishna Iyer, J., I agree respectfully with findings
(2) to (11), (13) and (14) enumerated by him in i:ts concluding part
as also with the first sentence occurring in finding ( 1), but regret that
I am unable to endorse all the views expressed by him on the refor-
G
mative aspect of penology, especially those forming the basis of
finding (1) minus the first sentence and of finding (12). In relation
to those views, while concurring generally with the note prepared by
my learned brother, Fazal Ali, J., I am appending a very short note
of my own.
H 2. That the four main objects which punishment of an offender
by the State is intended to achieve are deterrence, prevention, retribu-
tion and reformation is well recognised and does not appear to be
MARU RAM v. UNION OF INDIA (Koshal, J.) 1259

open to dissent. In its deterrent phase, punishment is calculated to A
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 incarcera-
tion of the offender, while it lasts, makes it impossible for him to
repeat the offending. act. His transformation into a law-abiding citi-
zen is' of course another object of penal legislation but so is retribu-
tion which is also described as a symbol ·of social condemnation B
and a vindication of the law. The question on which a divergence
of opinion has been expressed at the bar is the emphasis which the
legislature is expected to place on each of the said four objects. It
has been contended on behalf of the petitioners that the main object
of every punishment must be reformation of the offender and that
the other objects above mentioned must be relegated to the back-
c
ground and be brought into play only incrdentally, 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 D
of reformation being the dominant object ol' punishment but 'then
an opposite opinion has not been lacking in expression. Champions
of the former view cry from housetops that punishmet¥ must have
as its target the crime and not the criminal. Others, however, have
been equally vocal in bringing 'into focus the mischief flowing from
what the criminal ha& done to his victim and those near and dear E
to him and have insisted on greater attention being paid to victimo-
logy and therefore to the retributive aspect of punishment. They
assert:
"Neither reformers nor psychologists have, by and large, suc-
ceeded in reducing recidivism by the convicted criminals. 'F
Neither harshness nor laxity has succeeded in discouraging
repeaters· .": . . . . . . . . Criminality is not a disease. admitting of
cure through quick social therapy .............. "(1)
The matter has been the subject of social debate and, so fir as one
can judge, will continue to remain at that level in the foreseeable G
future. .,
4. Secondly, the question as to which of the various objectS of
punishment should be the basis of a penal provision has, in the very
nature of things, to be left to the legislature and it is• not for the
courts to say which of them shall be given priority, preponderence
H
(I) Essay on 'Crime, Containment and Jails by Shri Tek Chand, retired
Judge of the Punjab High Court and Chairman of the Haryana Jail Reforms
Commission.
21-6 S.C. Jndfa]ND/81
12 60 SUPREME COURT REPORTS [1981] 1 S.C.R.

A or predominance. It may well in fact be that a punitive law may
be intended to achieve only one of the four objects but that is some-
thing which must be decided by the legislature in its own wisdom.
An offence calculated to thwart the security of the State may be
considered so serious as to demand the death penalty and nothing
else, both as a preventive and a deterrent, and without regard to
B retribution and reformation. On the other hand, offences involving
moral turpitude may call for reformation as the chief objective lo 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 legislature which particular
c object shall be kept rn focus in a particular situation. 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 of
penal legislation, while judging its constitutionality. A contrary
proposition would mean the ~tepping of the judiciary into the field
· of the legislature which, I need hardly· say, is not permissible. It is
D
thus outside the scope of the inquiry undertaken by this Court into
the vires 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 opinions of great thinkers·, jurists, politicians and saints
(as to what the basis of a penal provision should be) notwithstanding.
E 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 wbich brings out clearly that the severity of each punish-
ment sanctioned by the Jaw is directly proportional to the serious-
ness of the offence for which rt is awarded. This, to my mind, is
strongly indicative of reformation not being the foremost object
F sought to be achieved by the penal provisions adopted by the legis-
Jatt.1re. A person who has committed murder in tbe heat of passion
may not repeat his· act at all later in life and the ref01mation process
in his case need not be time-consuming. On the other hand, a thief
ma) take long to shed the propensity to deprive others of their good
G money. If the reformative aspect of punishment· were to be given
priority and predom[nance in every case the murderer may deserve,
in a given set of circumstances, no more than a six months' period
of incarceration while a thief may have to be trained into better
ways of life from the social point of vrew over a long period, and
the death penalty, the vires of which has been recently upheld by
H a majority of four in a five Judge Bench of tbis Court in Bachan
Singh and others v. State of Punjaq and others( 1 ) wol,lld have to be
p; [1980] 2 s.e.c. 684,
~ : .:. - i"' -

I
MARtJ RAM v. UNION OF INDIA (Koshal, J.) 1261

exterminated frc•m Indian criminal law. The argument based on A
the object of reforrrtation having to be in the forefront of the legisla-
tive purposes behind punishment, must, therefore, held to be
fallacious. ;
6. I conclude that the contents of section 433A of the Code of
Criminal Procedure (or, for that matter any other penal provisicm) B
cannot be attacked on the ground that they are hit by article 14 of
the Constitution inasmuch as they arc arbitrary or irrational because
they· ignore the reformative aspect of punishment.

. ,
S.R. Petitions dismissed.

I