- (1.) A procession of 'life convicts', well over two thousand strong, with more joining the march even as the arguments were on, has vicariously mobbed this court, through their learned counsel, carrying constitutional missiles in hand and demanding liberty beyond the bars. They challenge the vires of S. 433-A of the Criminal Procedure Code (Procedure Code, for short) which compels 'caging' of two classes of prisoners, at least for fourteen eternal infernal years, regardless of the benign remissions and compassionate concessions sanctioned by prison law and human justice. Their despair is best expressed in the bitter lines of Oscar Wild :petitioner; I know not whether Laws be right, Or whether Laws be wrong, All that we know who lie in goal Is that the wall is strong; And that each day is like a year, A year whose days are long. (emphasis added) BUT broken hearts cannot break prison walls. Since prisons are built with stones of law, the key to liberation too is in law's custody. So, counsel have piled up long and learned arguments punctuated with evocative rhetoric. But judges themselves are prisoners of the law and are not free to free a prisoner save through the open sesame of justice according to law. Even so, there is a strange message for judges too in the rebellious words of Gandhiji's quasi-guru David Thoreau. : The law will never make men free; it is men who have got to make the law free. They are the lovers of law and order who observe the law when the government breaks it. The case of the petitioners is that Parliament has broken the law of the Constitution by enacting S. 433-A.
(2.) Now, the concrete question and the back-up facts. All the petitioners belong to one or other of two categories. They are either sentenced by court to imprisonment for, life in cases where the conviction is for offences carrying death penalty as a graver alternative or are persons whom the court has actually sentenced to death which has since been commuted by the appropriate governments under S. 433 (a) of the Procedure Code to life imprisonment. The common factor binding together these two categories of lifers' (if we may use this vogue word, for brevity) is obvious. The offences are so serious that the Penal Code has prescribed 'death' as an alternative punishment although, in actual fact, judicial compassion or executive clemency has averted the lethal blow but at a price, viz. , prison tenancy for life.
(3.) Before the enactment of S. 433-A in 1978 these 'lifers' were treated, in the matter of remissions and release from jail, like others sentenced to life terms for lesser offences which do not carry death penalty as an either/or possibility. There are around 40 offences which carry a maximum sentence of life imprisonment without the extreme penalty of death as an alternative. The rules of remission and release were common for all prisoners, and most States had rules under the Prisons Act, 1894 or some had separate Acts providing for shortening of sentences or variants thereof, which enabled the life sentence, regardless of the offence which cast him into the prison, to get his exit visa long before the full span of his life had run out often by about eight to ten or twelve years, sometimes even earlier. Then came, in 1978, despite the strident peals of human rights of that time, a parliamentary amendment to the Procedure Code and S. 433-A was sternly woven, with virtual consensus, into the punitive fabric obligating the actual detention in prison for full fourteen years as a mandatory minimum in the two classes of cases where the court could have punished the offender with death but did not, or where the court did punish the culprit with death but he survived through commutation to life imprisonment granted under S. 433 (a) of the Procedure Code. All the lifers lugged into these two categories and they form the bulk of life convicts in our prisons suddenly found themselves legally robbed of their human longing to be set free under the remission scheme. This poignant shock is at the back of the rain of Writ Petition under Article 32; and the despondent prisoners have showered arguments against the privative provision (Section 433-A) as constitutional anathema and penological atavism, incompetent for Parliament and violative of fundamental rights and reformatory goals. The single issue, which has proliferated into many at the hands of a plurality of advocates, is whether S. 433-A is void for unconstitutionality and, alternatively, whether the said harsh provision admits of interpretative liberality which enlarges the oasis of early release and narrows down the compulsive territory of 14-year jail term. Lord Denning, in the first Hamlyn Lectures and Sir Norman Anderson in the next before last of the series, emphasised : . . The fundamental principle in our courts that where there is any conflict between the freedom of the individual and any other rights or interests, then no matter how great or powerful those others may be, the freedom of the humblest citizen shall prevail. Of course, most of the petitioners belong to 'the poorest, the lowliest and the lost'. For those who listlessly languish waiting for their date with Freedom, the human hope of going home holds the lamp of life burning and a blanket ban against release before a brutal span of full 14 years, even if their habilitation be ever so complete and convincing, benumbs the very process of restoration which is cardinal to the rationale of penal servitude. Indeterminate sentences for the same reason, have been criticised since they have Led to a system of sentencing which has worked substantial hardship and injustice on countless inmates. Indeterminate sentences generally are much longer and more costly than fixed sentences and create additional emotional strain on both the inmate and his family, who are left to wonder when they will be freed. The imprisoned poet, Oscar Wild, wrote that courts must know when adjudicating the arbitrariness of long-term minima implacably imposed in the name of social defence : Something was dead in each of us, And what was dead was Hope. The vilest deeds like poison weeds Bloom well in prison air: It is only what is good in Man 120 That wastes and withers there : Pale anguish keeps the heavy gate, And the Warder is Despair. These generalities only serve as a backdrop to the consideration of the multi-pronged attack on the vires of S. 433-A. For judicial diagnosis, we must read it whole before dissecting into parts: 433-A. Notwithstanding anything contained in S. 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where the sentence of death imposed on a person has been commuted under S. 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. Piecemeal understanding, like a little learning, may prove to be a dangerous thing. To get a hang of the whole subject-matter we must read S. 432 and S. 433 too. 432. (1) When any person has been sentenced to punishment for an offence, the appropriate government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. 433. The appropriate government may, without the consent of the person sentenced, commute- (A) a sentence of death, for any other punishment provided by the Indian Penal Code; (B) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (C) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; (D) a sentence of simple imprisonment, for fine.;