MARU RAM BHIMWA RAM SHANKER KRISHNA RAGHUBIR SINGH RAMPUJA SINGH NIRBHAI SINGH BALKRISHAN GUPTA VENY SINGH BABULAL GAUTAM OM PRAKASH NAGEBHUSHANAM PATNAIK RAGHUNATH SINGH JAGIR SINGH Vs. UNION OF INDIA

JUDGEMENT

(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;

(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 :