MARU RAM ETC. ETC v. UNION OF INDIA & Anr.

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

The dominant purpose and the avowed object of the legislature in introducing section 433A in the Code of Criminal Procedure unmistakably seems to be to secure a deterrent punishment for heinous offences committed in a dastardly, brutal or cruel fashion or offences committed against the defence or security of the country. [1251 E-F] Section 433A has advisedly been enacted to apply to a very smali sphere and includes within its ambit only offences under sections 121, 132, 302, 303, 396 etc., of the Indian Penal Code, that is to say, only those offence~ where death or life imprisonment are the penalties but instead of death life imprison ment is given or where a sentence of death is commuted to that of life imprison ment. 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 [1252 D-E, 1253 H, 1254 A-B] the social sentiments of a civilized society. Section 433A when it confines D E ;G H

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 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]

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, 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]

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 l.iberty is not a one-sided concept, nor does Arti court to uphold his liberty. If a person commits cle 21 of the Constitution contemplate such a concept. MARU RAM V. UNION OF INDIA 1203 oJl cnmmal offence and punishment has been given to him by a procedure est'.l 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 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]

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 reforming the or modification in ·criminal be counter-productive. the deterrent punishment would far (1257 F-G]

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 legislation must be meaningfully constmed and given of the people, such a effect to so as to subserve the purpose for which it is meant. [1257 G-H, 1258 A-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 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 'President, who acts on the advice of the Council of Ministers. nor the State ·Government is likely to overlook the object, spirit and philosophy of section · 433A so as to create a conflict between the legislative intent and the executive power. It cannot be doubted as a proposition of law that where a power i> vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all the oaspects of the matter. [1258 B-DJ Per Koshal, J. (Generally concurring)

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 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 A B c E F G H 1204 SUPREME COURT REPORTS [1981] 1 S.C.R. A B c D E F G 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.

2. The contents of section 433A of the Code of Criminal Procedure (or, for that matter any other pe:nal provision) cannot be attacked <'n the grouncl that they are hit by Article 14 of the Constitution inasmuch as they are arb!· trary or irrational because they ignore the reformative aspect ~f punishment. [1261 A-BJ ORIGINAL JURISDICTION: Writ Petitions Nos. 865/79, 641/80, 409, 783, 695, 690, 747, 4346 of 1980, 147179·, 1860/80, 2389, 4115, 1365, 457, 869, 4311-12, 813, 2505, 1659, 3784-94, 2602-· 10, 4376-91, 4392-95, 4404, 1177 of 1980. (Under Article 32 of the Constitution of India) Dr. L. M. Singhvi, S. K. Bagga and Mrs. S. Bagga and Nand Lal for the Petitioners in WPs 865 and 695. D. R. Mridul, Nami Chand Chowdhary and Sushil Kumar Jain H for the Petitioners in WP 641. A. K. Sen, ( 409) & Uma Datt for the Peti~ioners in WPs. 409 and 1365. MARU RAM V. UNION OF INDIA 11105 L. M. Singhvi. S. K. lain, A. S. Sohal, Sushi! Kumar and A L. K. Pandey for the Petitioners in 783. (WP) R. K. Garg & Mrs. Urmila Sirur for the Petitioners in WP 690. K. B. Rohatgi and S. M. Ashri for the Petitioners in WP 747. S. N. Kacker, R. N. Kataria, G. K. Bansal & B. S. Malik for the Petitioners in WPs. 4311-12, 4376-95, 3784-94, 1177. B P. R. Mridul and H. K. Puri-for the Petitioner in WP 147. S. S. Khanduja for the Petitioner in WP 1860. Arun Madan for the Petitioner in WP 2389. A. S. Sohal, M. C. Dhingra and P. N. Gupta for the Petitioner in WP 457. Cl: R. L. Kohli and R. C. Kohli for ithe Petitioner in WP 869. P. R. Mridul, A. S. Sohal, M. C. Dhingra and L,alit Gupta for the Petitioner in WP 813. L. N. Gupta for the Petitioners in WP 2505. Srinath Singh, Vijay K. Jindal, Sarva Mitter and M. G. Gupta D 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. . V. M. Tarkunde, Govind Mukho~y and P. K. Gupta for the ·Petitioners in WP 4115. Petitioner in 4346 (WP) in person K. Parasaran, Sol. General, M. K. Banerjee, Addl. Sol. Genl. and N. Net.tar and Miss A. Subhashini for R. 1 in all WPs. except in 457 & 869. Badridas Sharma for r. 2 in 865 & r. in 147. 0. P. Rana, S. C. Maheshwari and R. K. Bhatt for State of U.P. in 865, 4392-95, 4376-91. ~

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. E F G The Judgment of Hon'ble C.J., Bhagwati, and Krishna Iyer, JJ. ~as delivered by Iyer, J. Fazal Ali and Koshal, JJ. gave separate concurring Opinions. H 16-Q S. C. lndia/ND/81 1206 SUPRE~~E COURT REPORTS [1981] 1 S.C.R. A B C D E F G .H 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 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.

(1) When any person has been sentenced to punish 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. ...

The appropriate Government may, without the con sent of the person sentenced, commute-- A B c D (a) a sentence of death, for any other punishment provided by the Indian Penal Code. (b) a sentence of imprisonment for·life, for imprisonment for a term not ~xceeding four.teen years or for fine; E (c) a sentence of rigorous simple imprisonment for any term to which that person might have been sentenced, or for fine; imprisonment, (d) a sentence of simple imprisonment, for fine. 'Ay, there's the rub'. 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. It is . obvious that s. 432 clothes the appropriate Government with power to remit the whole or part of any sentence. The mechanic& for exercising this power and the conditions subject to which the power is to be exercised are also. imprinted in the Section.

5. Nothing ~ontained in this Code shall, in the absence 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. savings section is The anatomy of there are three components' to be simple, yet subtle. separated. Broadly speaking, 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 If ther~ is a specific provision component which may ,be clinching. 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 in AIR make out that s. 433A is a specific law. A Bombay case 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. (2) Biram Sardar & Ors. v. 'Emperor, AIR 1941 Born. 146. {3) 1939 IA 66. ; ~ : 1223 A B c D E F G H 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 vious incarnation cf s. 5 of the Present Code and contains virtually 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 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 ) I think first, ·1 ·have, I confess, enter.tained soine doubt as to what exactly the words 'specific provisians' mean. 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 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 ~ 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 adjective 'specific' 'in the same dictionary 'precise ..... . definite, explicit ...... ' exactly named· or: indicated or capable ·of being so, precise, particular.' What the words 'specific provisron' really mean therefore is that the particular I think ~ 'r (1) Hakim Khuda Yar v.

Emperor, AIR 1940 Lah. 129. (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. I" B -c F G 'fl MARU RAM v. UNION OF INDIA (Krishna Iyer, J.) .12.2 5 • ... provision of th, Criminal Procedure Code must, in order to '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 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. . interp_reted fa an English case(') Buckley J., · has the Word 'specific' to inean explicit and definable. While Indian usage of 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 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 by. judicialese which is the draftsman's lexical guide. ipse dixit, 'y-~- The contrary ,·iew in the Bombay case(•) is more ass~rtive than explanatory, and 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. If need not be express. The anti-thesis is between it is explicit. '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. (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. . -... . - . . . . A. c n: E F G- H ;>(

122.6 SUPREME COURT REPORTS (1981] 1 S.C.R. From Sometimes, what is specific may also be special but yet they are distinct in semantics. 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 picks out of a mass of imprisofilnent cases a specific class of life to a particularised imprisonment cases and subjects in preference to any treatment. 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 to make the point fhat 'specific' is law. We have said enough 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. It follows that s. 433A applies it explicity is anathema for Art. 14. Secondly, The stage is now set for considering the contention that S. 433A violates Art. 14 for two reasons. It arbitrarily ignores the unequal; yet vital, variations of 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 the Section unequals equally inflicts, with anti-reformative inhumanity and Procrustean cruelty, a 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 !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.

B c D E F G The larger issues of sentencing legitimacy and constitutionality in. the past and throws us well have been examined by this court 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 sentence is hospital setting and -the primary purpose of prison (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 submission excludes other punitive public denunciation. This through example or prolonged pain objectives such ·as deterrence 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, daya, prema and manavata, are concepts of spiritualised humanism implicit in our constitutional· preamble. Alienation of secularly 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 human dignity and fair legal process.

Be that as it may, this court in Sunil Batra, has observed: ( 1 ) • · remedies ..... e~pression and substituted self-resp~ct. and . self-realization the dehumanising The winds of change must blow into our careers and self creatively and 'wild-life' the jail armoury. A few prison · .te,c;hniques still current ·villains-they.exist-shall not make martyrs of the humane many; trust slowly begets trust. Sarvodaya and even from these few, and antyodaya have criminological dimensions which our social justice awareness must apprehend and actualize. ·I justify this ·, 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. D E F G * (1) Suni/ Batra v.

Delhi Administration, [1978] 4 SCC 494·at·.566·67. * ·* ·* * . H * 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. 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 use of the Gandhi cap. Barbaric treatment of a prisoner from the point of view of his rehabilitation and acceptance and reten 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 : Social reconstruction and rehabilitation as objectives of importance in a Welfare State~ punishment attain paramount The supreme aim of punishment shall be the protection of society, · through the: rehabilitation of the offender ..... Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very self-determination. fact of taking away from him the right ·Of 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 schemes· of life.

(1) Ibid 579-80. B D E F H 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 the creative culturing of his psychic being. The person, given the annual measure of this process is not the mechanical turn of .calendar fourteen times over, but the man-making methodology of It follows the correctional campus, together with individual response. 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 reaches far an: initial presumption of constitutionality. Unless one beyond unwisdom to absurdity, irrationality, colourability and like, the court must· keep its hands off: A Judicial journey to the penalogical beginning revea1s that social defence is the-objective. The triple purposes of sc:_ntencing are. retribu- tion, draped sometimes as a public denunciation, deterrence, another scary variant, with. a Pavlovian touch, and in our era. of human. rights, founded. on man'.s essential divinity and. ultimate rehabilitation, retrievability by raising the Jevel of consciousn~ss of the criminal and · 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'. B E F Judical pronouncements are authentic guidance and so a · citations may serve our purpose. In Sobraj, this court observed·: G' -It is now well~settled, as a stream of rulings of courts proves; rehabilitation and specific and general that deterrence; both institutional 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. security are vital (I) Charles Sobraj v. Supdt. Central Jail, Tihar, [1978] 4 SCC 104 at 109. B C, D F 1230 A SUPREME COURT REPORTS . [1981] 1 S.C.R .. The overall attitude was incorporated as a standard by the · Justice· American National Advisory Commission on Crime, Standards and Goals : ( 1 ) In a series of decisions this court has held that, even though thaL the governn:iental purpose be legitimat_e and s.ubstantial, 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. 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 ) 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, 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. him, you must improve him and, men are not improved by injuries'. If you are to reform : ...,.. 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 striving and correctional success, a good behaviour, educational 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. · sentencing Basic to the submissions of counsel for the petitioners is the humane_ assumption that the object of 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 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 reformation-in deed, the promotion of embittered hostility to society and hardening of brutality count, er-productive of hopeful humanization. torment but a negation of · not only an unrewarding F 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. BJ . SUPREME COURT REPORTS [1981] 1 S~C.R. parol, cultured by predictable, premature release, the purpose· of habili If law-s. 433A in this case-rudely, tation would have been served. 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. 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 jail he will be a social menace at least 14 endless years inside 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 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. -1··· c: Two broad grounds to negative this extreme position 5trike us, Deterrence, as one' valid punitive component has been a.ccepted in (see Desai J. supra). So, a, Sunil Batra( 1 ) by a five-judge bench 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 'the this court has upheld even death penalty Oi.mited thougb to. (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 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 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 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 . (I) Bachan Singh v. State of Punjab [1980! 2 SCC 684 . (2) .. Freedom Behind Bars0 -Criminology and Consciousness, Serles I 1979, lt-fa.harild European Research University Press publicatioli P. 73. · °' ' :c: .F G 11 J234 SUPREME 'coURT REPORTS [1981] 1 S.C.R. A c u E :G IH scientifically established standard measures of sucr, essful rehabilita to be t1aken cognisance of in some tion), as credentials enough 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 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 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 and breach of trust, where life sentence is the maximum.

But the framers of 1the Penal Code have classified maximum sentences prin~i­ 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 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 s. convict to deatl1 the appropriate Government often by virtue of 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 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 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 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.) the lethal . cannot be castigated as a capricious enough to attract .,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. ;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. 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 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 If such convicts are out of its coils their cases must be consi limit. dered under the Remission Schemes and 'Short-sentencing' laws.

The 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 the exerCise of this scope and emasculate its mechanics. Thirdly, :Plenary power cannot be left to the fancy, frolic or frown of Govern 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 fourteen fettered to remit life sentences without the hardship of . years. (I) Unpopular i£ssays: Philosophy and Politics. A c 1D :E F G H . ..• JOii · 1236 SUPREME COURT REPORTS {1981] 1 S.C.R. A c D F G H E, I.t is trite law Now to the first point. 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 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 . .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 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 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 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 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 'Is' and 'has' are not words which condition therein is complied with. ' ' 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. We are mindful of one anomaly and must provide for its elimi If the trial court acquits and the higher court convicts and it nation. so happens that the acquittal is before S. 433-A came into force and the conviction after it, could it be that the convicted person would be denied· the benefit of prospectivity and consequential non-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 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: 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 . ' c - D E G -.,. \238 ' SUPREME COURT REPORTS [1981] 1 S.C.R. A. JS on a different footing. (1) The Constitution is the suprema lex and It is not any legislation, even by Parliament, must bow-before it. 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 Governor substantially in overJapping measure 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 and 161 are traceable to s. 295 of the Government of India Act., 1935. The Central' Law Commission has made certain observations based on Rab ha' 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 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 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. D F G " ' MARU RAM v. ·UNION ,OF INDIA (Kr}.rh, na Iyer, ·J.) '1239 'Vicis.situdes. of simple legislative' processes~ . Therefore, s. 433A cannot .be invalidated as .indirectly violative of Arts. 72 and 161. What the Code gives, it< can .take, and so; an embargo on ss. 432 and 433 (a) is within 1the legislative power of Parliament. · · Even so, we must remember the constitutional status of Arts. 72 161 and it is common ground that s. 433A does not and cannot affect even a wee-bit the pardon power of the Governor or 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. ' A . B. ~ 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 to, the advice of his council of .acting except on, and according 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 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 :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 .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· G F E (1) Shamsher Singh & Anr. v. State of Punjab [1975] 1 SCR 814~ ' . 1240 SUPREME COURT REPORTS [1981] 1 S.C.R. A B c D E F G H the 42nd Amendment silences of the ministers. Article 74, after 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.

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 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. 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 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 we have discussed above must apply equally where such corpora tion is dealing with the public, whether by way of giving jobs or it cannot act arbi entering into contracts or otherwise; and 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. 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 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 : "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 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" and "Constitution of_ Liberty". or the exposition set forth by Harry Jones in his "The Rule of Law and the Welfare State", there is in bis article on "The Welfare as pointed out by Mathew J., "Democracy, State, Rule of Law and Natural Justice" in Equality and Freedom~'( 3) "Substantial agreement in Juristic. thought that the great purpose of the rule of law notion is 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 from. ment must be informed with reason and should be free 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. · \ ' C., D. E F (1) AIR 1969 Ker 81. (2) [1979] 3 sec 489 at 504·505. (3) Upendra Baxi, Ed. Eastem Book c::;o.,. Lucknow (1978) p.~ 28 ... It 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 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 It the matter of granting largesse and it cannot act arbitrarily. 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 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 If there is any presumpti:on it is the other way, did no wrong. 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 ) ~ All persons possessing a portion of power ought to be strongly and awfully impressed with an trust, and tl!&~ they are to accoun~ for their conduct in that tru~t to the one great Master, Author, and Founder of society. idea that they act Pardon, using this expression in the amplest connotation, ordains 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 (1) Letter to Mandell (later, Bishop) CreigJiton, April 5, 1887 Historical Eisays and Studiei;, 1907. (2) Reflections on the Revolution in France 179G. B c D F G a· .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 the jail considered so auspicious an omen that all th_e prisoners in were given substantial remissions solely for this reason. Strangely enough, this propitious circumstance was discovered an year later and remission order was issued long after the Minister graced penitentiary.

The actual order passed on July 18, 1978 by the Haryana .Government reads thus :(1 ) B In exercise of the powers conferred under Article 161 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 Jurisdiction in Haryana State. . :;- ' i" Dated : Chandigarh, the 18th July, 1978. A. BANERJEE Secretary to Govt. of Haryana Jails. Department · 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 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, 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.' - ~ , l>. F H 1244 SUPREME COURT REPORTS [1981)- 1 5.C.R. A B c rules' for its own guidance in the exercise of the pardon power keep ing, of course, 1 a large residuary power to meet special situations or sudden developments.

This will exclude the vice of discrimination such as may arise where two persons· have been convicted and sentenc is released and the other refused, for such irrelevant reasons as religion, caste, colour or. political loyalty. in the same case for the same degree of guilt but one 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 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) D· This too I know-and wise it were If each could know the same- That every prison that men build If built with· bricks of shame, And bound with bars lost Christ should see How men 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, 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 I believe that the' early data that we have on recidivism rates indi- cate the efficacy of what we've done. to be pursued while he is in prison. . . . . . ~ . . . . . . . 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. - G H 'MARU RAM v.

UNION OF INDIA (Krishna Iyer, J.) <124 J5 •, A B c D calamity which may be averted by exercise of power under Art. 1"61, 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. The failure of imprisonment as a crime control tool and the search in a free milieu, gain' ·poignant for non-institutional alternatives pertinence while considering the mechanical exclusion of individualised the cruel magic of 14 years punishment by s. 433A, conjuring up behind bars-where 'each day is like a year, a year whose days ar~ 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 noticeable features of the current crisis in criminal justice system such r as in advanced industrial or post-industrial societies 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 A SUPREME COURT REPORTS [1981] 1 S.C.R. 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. 8 c D E F G like everyone else. Generally, Contrary to popular opinion, all convicts are not rock-hard individuals lacking sufficient emotional balance.

They are people with fears and aspirations don't want '10 fight with oi· kill their neighbour any more than the mail on the street. They want to live 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 to, persons who have made mistakes. This point is made not 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. in peace and 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 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 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 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 If animal farms; nervous wreck or unmitigated brute of a prisoner. are not reformatories, short-sentencing. the Remission Rules and schemes are humanising wheel of compassion and reduction of psy-· chic tension.

We ·have .no hesitation to reject the notion 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. 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 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 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, 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. immunised by Art. 161. We , One point remains to be clarified. , The U.P. Prisoners' Release on Probation Act, 1938, a welcome measure, what with populati:on 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 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 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 B c D :S :a H 1248 SUPREME COURT REPORT&c'.·''. ~·; [1981] 1 S.C.R. B a human is · 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 - more than simian. Our reasoning upholds s. 433A of the Procedure Code but upbraids the abandonment of the healing hope of remissions and release betimes. To legislate belongs to another branch but when: 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) .. 'l . __../, 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 for a fourteen-year gestation for reformation. But ours is to construe,· 'not construct, to decode, not to make a code. ' D

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 , retro-actively, as eixplained in the cases were decided by the trtal court before the 18th December, 1978 judgment) when (directly or 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 under if his conviction by the court of first release instance was before " - - s. 433A was brought into effect ,

8. The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and. indicate the applica- 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 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- con~titutional power. same rules or schemes in .the exercise of its 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 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. c E G:

The U. P. Prisoners' Release 'on Probation Act, 1938, ena limited enlargement under licence wi11 be effective as legisla- tively sanctioned imprisonment of a loose and liberal type and such licensed enlargement will be reckoned for the purpose of the 14-year ' ' duration. Similar other statutes and· rules will enjoy similar efficacy. I 1;2'5.0 SUPREME COURT REPORTS (1981] 1 S.C.R. A\ B. D Ji:. F G H

·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.

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.

Section 433A does not forbid parole or other release within the 14-year span. So to inte1pret the Section as to intensify inner intermissions of freedom is to do violence to tension and taboo language and lib1:rty. 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: Our judges are not monks or scientists, but participants in law between the living stream of our national life, steering the 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 the never-changing principles of freedom.

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 In its deterrent phase, punishment is calculated to open to dissent. act as' a warning to others against indulgence in the anti-social act It acts as a preventive because the incarcera for which it is visited. 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 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 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 It is true criminals who are punished are amenable to reformation. that in recent years an opinion has been strongly expressed in favour 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 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 the convicted criminals. ceeded in reducing recidivism by Neither harshness nor laxity has in discouraging repeaters· .": . . . . . . . . Criminality is not a disease. admitting of cure through quick social therapy .............. "(1) succeeded 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 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 (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 A B c D E 'F G H ., 12 60 SUPREME COURT REPORTS [1981] 1 S.C.R. A B c D E F G H It may well in fact be that a punitive law may or predominance. 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 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 in a particular situation. Nor is it object shall be kept rn focus 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 constitutionality. A contrary proposition would mean the ~tepping of the judiciary into the field It is · of the legislature which, I need hardly· say, is not permissible. 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. judging its

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 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 If the reformative aspect of punishment· were to be given money. 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 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"' - MARtJ RAM v. UNION OF INDIA (Koshal, J.) I exterminated frc•m Indian criminal law. The argument based on the object of reforrrtation having to be in the forefront of the legisla tive purposes behind punishment, must, therefore, held to be fallacious. ; 1261 A

6. I conclude that the contents of section 433A of the Code of Criminal Procedure (or, for that matter any other penal provisicm) 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. B S.R. Petitions dismissed. . , I