Maru Ram Vs. Union of Lndia & ANR [1980] INSC 213 (11 November 1980)

KRISHNAIYER, V.R.

CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N.

FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION: 1980 AIR 2147 1981 SCR (1)1196 1981 SCC (1) 107

CITATOR INFO :

R 1982 SC1163 (1,2) R 1982 SC1195 (1,2) R 1982 SC1439 (2,3,6) R 1984 SC 739 (5) R 1985 SC 870 (14,20) R 1985 SC1050 (10) R 1989 SC 653 (7,11,15) RF 1990 SC 336 (7,10,13) E 1990 SC1396 (7) E 1991 SC1792 (1,3,4,6,11,12,13,14,16) R 1991 SC2296 (6,8)

ACT:

Prison Prisoner Legislation vis-a-vis-Code of Criminal Procedure Code, 1973 (Act II of 1974)-Section 433A, as Indicated with effect from 18th December, 1978, prescribing a minimum of 14 years of actual imprisonment for the two types of lifers, vires of-Pardon Jurisprudence-Effects of Section 433A on Articles 72 and 161-Whether section 433A l isolates Article 14 being wholly arbitrary and irrational- Whether section 433A lacked legislative competency under the lists and also contravene Article 20(I) of the Constitution- Whether the various provisions for remission under the prison the Prison Act and Rules and other legislation had their full operation not withstanding section 433A, thanks to the savings provision in section 5 of the Code of Criminal Procedure Code Constitution of India, 1950, Articles 14, 20(1), 72, 161, 246(1), (2) an(l 254, Entry II List III of the Seventh Schedule, Code of Criminal Procedure, 1973, sections 5, 432, 433, 433A-Prisons Act, 1894 (Central Act), section 59 (27) read with General Clauses Act.

HEADNOTE:

Dismissing the writ petitions but partly allowing, the Court ^

HELD: By Iyer, J. (on behalf of Y. V. Chandrachud, C.J., P. N. Bhagwati. J. and himself)

1. Section 433A of the Code of Criminal Procedure Code as introduced With effect from 18-12-1978 is constitutionally valid. May be, penologically the prolonged terms prescribed by the Section is supererogative [1248 C-D]

2. Section 433A is supreme over the Remission Rules and short-sentencing, statutes made by the various States. [1248 D]

3. All remissions and short-sentencing passed under Articles 72 and 161 of the Constitution are valid but release with follow in life sentence case only on Government making an order en masse or individually, in that behalf [124D-E]

4. Section 432 and section 433 of the Code are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power and section 433A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like. [1248 E-F]

5. Section 433A of the Code does not contravene the provisions of Article 20(1) of the Constitution. [1248G]

6. Imprisonment for life lasts until the last breath and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government. [1248 G] Gopal Vinayak Godse v. State of Maharashtra & Ors., [19611 3 S.C.R. 440, reiterated .

7. Section 433A, in both its limbs (i.e. both types of life imprisonment specified in it), is prospective in effect. The mandatory minimum of 14 years actual imprisonment will not operate against those whose cases were decided by trial court before the 18th December, 1978, directly or retroactively as explained in the judgment when section 433A came into force. All 'lifers' whose conviction by the court of first instance was entered prior to that date-are entitled to consideration by Government for release on the strength of earned remissions although a release can take place only it Government makes an order to that effect.

It follows by the same logic, that short-sentencing legislations if any, will entitle a prisoner to claim release there under if his conviction by the court of first instance was before section 433A was brought into effect.

[1248 H, 1249 A]

8. The power under Articles 72 and 161 of the Constitution can be exercised by the Central and the 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 application of mind to the whole group. [1249-D]

9. Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, by no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise. [1249 D-E]

10. Although the remission rules or short-sentencing provisions proprio vigore may not apply as against section 433A. if the Government, Central or State, guides itself by the self-same rules or schemes in the exercise of its constitutional power. Until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking. the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for release passed. Government cannot be faulted, if in some intractably savage delinquents, section 433A is itself treated as a guideline for exercise of Articles 72/161. [1249E-G]

11. The U.P. Prisoners' Release on Probation Act, 1938 enabling limited enlargement under licence will be effective as legislatively sanctioned imprisonment of a loose and liberal type and such licensed enlargement will toe reckoned for the purpose of the 14-year duration. Similar other statutes and rules will enjoy similar efficacy. [1249 G-H]

12. Penal humanitarianism and rehabilitative 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 zoos. Human rights awareness must infuse institutional reform and search for alternatives. [1250 A-B]

13. Law in action fulfils itself not by declaration alone and needs the wings of communication to the target community. So, the whole judgment well translated in the language of the State, must be kept prominently in each ward and made available to the inmate, in the jail library.

[1250B-C]

14. Section 433A does not forbid parole or other release within the 14-year span . So to interpret the Section as to intensify inner tension and taboo intermissions of freedom is to do violence to language and liberty. [1250 C-D] 1198

15. Parliament has the legislative competency to enact the provisions in section 433A of Criminal Procedure Code .

[1214F] It is trite law that the Lists in the Seventh Schedule broadly delineate the rubrics of legislation and must be interpreted liberally. Article 246(2) gives power to Parliament to make laws with respect to any of the matters enumerate ed in List III. Entries 1 and 2 in List 111 (especially Entry 2) are abundantly comprehensive to cover legislation such as is contained in section 433A, which merely enacts a rider, as it were, to ss. 432 and 433(a). A legislation on the topic of "Prisons and Prisoners" cannot be read into section 433A. On the other hand, section 433A sets a lower limit to the execution of punishment provided by the Penal Code and is appropriately placed in the Chapter on "Execution and Sentences" in the Procedure Code. Once the irrefutable position that the execution, remission and commutation of sentences primarily fall, as in the earlier 1898 Code, within the 1973 Procedure Code (Chapter XXIII) is accepted, section 433A can be rightly assigned to Entry 2 in List III as a cognate provision integral to remission and commutation, as it sets limits to the power conferred by ss.432 and 433. This limited prescription as a proviso m, the earlier prescription relates to execution of sentence, not conditions in prison or regulation of prisoner's life. The distinction between prisons and prisoners on the one hand and sentences and their execution, remission and commutation on the other, is fine but real. To bastardize section 433A as outside the legitimacy of Entry 2 in list III is to breach all canons of constitutional interpretation of legislative list [1214B-F]

15. (i) The power of the State to enact the laws of remissions and short sentencing under Entry 4 of List 11 is subject to Articles 246(1) and (2) and so parliamentary legislation prevails over State legislation. Moreover, Article 254 resolves the conflict in favour of parliamentary legislation. If a State intends to legislate under Entry 2 of list III such law can prevail in that State as against a parliamentary legislation only if Presidential assent has been obtained in terms of Article 254(2). In the present case, section 433A must hold its sway over any State legislation even regarding "prisons and prisoners", if its provisions are repugnant to the Central law. [1214G, 1215 B- C] 15 (ii). Remission schemes do not upset sentences, but merely provide re wards and remissions for in prison good conduct and the like If the sentence is life imprisonment remissions, as such cannot help. If the sentence is for a fixed term, remissions may help, but section 433A does not come in the way. Thus incompatibility between section 433A and remission provisions exists. [1215 C-D]

16. The fasciculus of clauses (ss. 432, 433 and 433A), read as a package, makes it clear that while the Code does confer wide powers of remission and commutation or sentences, it emphatically intends to carve out an extreme category from the broad generosity of such executive power.

The non obtained clause, in terms, excludes section 432 and the whole mandate cf the rest of the Section necessarily subjects the operation of section 433(a) to a serious restriction. This embargo directs that commutation in such cases shall not reduce the actual duration of imprisonment below 14 years. Section 431 does declare emphatically an imperative intent to keep imprisoned for at least 14 years those who fall within the sinister categories spelt out in the operative part of section 433A. [1216 B-C] 1199 It is elementary that a non obstante tail should not wag a statutory dog. A non obstante Clause cannot whittle down the wide import of the principal part. The enacting part is Clear and the non obstante clause cannot cut down its scope.[1217 A-B] Aswini Kumar Ghose and Another v.Aravinda loose & Another, [1953] S.C.R. 1., followed.

To read down section 433A to give overriding effect to the Remission Rules of the State would render the purposeful exercise a ludicrous futility. If "Laws suffer from the disease of Language", courts must cure the patient. not kill him., "Notwithstanding the "notwithstanding.. " in section 433A, the Remission Rules and like provisions stand excluded so far as "lifers" punished for capital offences are concerned. [1217D-E]

17. Sentencing is a judicial function but the execution of the sentence. after the courts pronouncement, is ordinarily a matter for the Executive under the Procedure Code, going by Entry 2 in List 111 of the Seventh Schedule.

Once a sentence has been imposed, the only way to terminate it before the stipulated term is by action under ss. 432/433 of the Code or Articles 72/161. And if the latter power under the Constitution is not invoked, the only source of salvation is the play of power under ss. 432 and 433(a) so far as a 'lifer' is concerned. No release by reduction or remission of sentence is possible under the corpus juris as it stands, in any other way. The legislative power of the state under Entry 4 of List 11, even if it be stretched to snapping point, an deal only with Prisons and Prisoners, never with truncation of judicial sentences. Remissions by way of reward or otherwise cannot cut down the sentence as such and cannot grant final exit passport for the prisoner except by Government action under section 432(1). The topic of Prisons and Prisoners does not cover release by way of reduction of the sentence itself. That belongs to Criminal Procedure in Entry 2 c f List 111 although when the sentence is for a fixed term and remission plus the period undergone equal that term the prisoner may win his freedom. Any amount of remission to result in manumission requires action under section 432(1), read with the Remission Rules. That is why Parliament, tracing the single source of remission of sentence to Section 43', blocked it by the non obstante clause. No remission, however long. can set the prisoner free at the instance of the State, before the judicial sentence has run out, save by action under r the constitutional power or under section 432. So read, section 433A achieves what it wants-arrest the release of certain classes of "lifers" before a certain period, by blocking of section 432. [1217 G-H, 1218 A-E] Sentencing is a judicial function and whatever may be done in the matter of executing that sentence in the shape of remitting. commuting or otherwise abbreviating, the Executive cannot alter the sentence itself. Remission cannot detract from the quantum or quality of sentence or its direct and side-effects except to the extent of entitling the prisoner to premature freedom if the deduction following upon the remission has that arithmetic effect. The nature of a life sentence is incarceration until death, judicial sentence of imprisonment for life cannot be in jeopardy merely because of long accumulation of remissions. Release would follow only upon an order under section 401 of the Criminal Procedure Code , 1898 (corresponding to s. 432 of the 1973 Coded by the appropriate Government or on a clemency order in exercise of power under Article 72 or 161 of the Constitution. [1218 F-&, 1219H. 1220A, E-F] Sarat Chandra Rabha and Ors. v. Khagendranath Nath & Ors. [1961] 2 S.C.R. 133; Gopal VinayaK Godse v. State of Maharashtra & Ors. [1961] 3 S.C.R. 440, referred to.

18. Section 433A escapes the Exclusion of section 5 of the Code of Criminal Procedure . A thing is specific if it is explicit. It need not be "express". What is precise, exact, definite and explicit, is specific. Sometimes, what is specific may also be special but yet they are distinct in semantics. From this angle the Criminal Procedure Code is a general Code. The remission rules are special laws but section 433A is a specific, explicit, definite provision dealing with a particular situation or narrow class of cases. as distinguished from the general run of cases covered by section 432 Crl. P.C. Section 433A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicitly to a particularised treatment. Therefore, section 433A applies in preference to any special or local law because section 5 expressly, declares that specific provisions, if any, to the contrary will prevail over any special or local law. [1225 G-H, 1226 A-C] Hakim Khuda Yar v. Emperor A.I.R. 1940 Lah. ]29; Baldeo

Bikram Sardar & Ors. v. Emperor A.I.R. 1941 Bom. 146, dissented from.

In Re Net Book Agreement 1957 [1962] 3 All E.R. QBD 751, quoted with approval.

19. It is trite law that civilised criminal jurisprudence interdicts retroactive impost of heavier suffering by a later law. Ordinarily, a criminal legislation must be so interpreted as to speak futuristically. While there is no vested right for any convict who has received a judicial sentence to contend that the penalty should be softened and that the law which compels the penalty to be carried out hl 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 if things.

This humanely inspired canon, not applicable to certain terribly antisocial categories may legitimately be applied to s. 433A. (The sound rationale is that expectations of convicted citizens of regaining freedom on existing legal practices should not be frustrated by subsequent legislation or practice unless the language is beyond doubt). Liberality in ascertaining the sense may ordinarily err on the side of liberty where the quantum of deprivation of freedom is in issue. In short, the benefit of doubt, other things being equal, must go to the citizen in penal statute. [1236 A-D] The plain meaning of ' is" and "has been" is "is" and "has been' only and, therefore, these expressions refer lo "after this Section comes into force". "Is" and "has" are not words which are weighed in the scale 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 construction must govern this. case. [1236 F, G, H, 1237 A] Boucher Pierre Andre v. Supdt. Central Jail, Tihar.

[1975] I S.C.R. 192 at 1 95, followed.

20. When a person is convicted in appeal, it follows that the appellate court has exercised its power in the place of the original court and the guilt, conviction and sentence must be substituted for and shall have retroactive effect from the date of judgment of the trial court. The appellate conviction must relate back to the date of the trial court's verdict and substitute it. In this view, even if the appellate court reverses an earlier acquittal rendered before section 433A came into force but allows the appeal and convicts the accused after section 433A came into force, such persons will also be entitled to the benefit of the remission system prevailing prior to section 433A on the basis 1201 which has been explained. An appeal is a continuation of an appellate judgment as a replacement of the original judgment. [1237D-F]

21. The President is symbolic, the Central Government is the reality even as the Governor is the formal head and sole repository of the executive power but is incapable of acting except on, and according to, the advice of his council of ministers. The upshot is that the State Government, whether the Governor. likes it or not, can advise and not under Article 161, the Governor being bound by that advice. The action of commutation and release can thus be pursuant to a governmental decision and the order may issue even withhold the Governor's approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligation that the signature of the Governor should authorise the pardon, commutation or release. The position is substantially the same regarding the President. It is not open either to the President or the Governor to take independent decision or direct release or refuse release of any one of their own choice. It is fundamental to the Westminster system that the Cabinet rules and the Queen reigns. The President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers save in a narrow area of power. So, even without reference to Article 367(1) and ss. 3(8)(b) and 3(60)(b) of the General Clauses Act, 1897, that in the matter of exercise of the powers under Articles 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice of the ministers. Article 74, after the 42nd Amendment silences speculation and obligates compliance. The Governor vis a vis his Cabinet is no higher than the President save and narrow area which does not include Article 161. The constitutional conclusion is that the Governor is but a shorthand expression for the State Government and the President is an abbreviation for the Central Government. [1239 C-H, 1240A-B] Shamsher Singh & Anr, v. State of Punjab, [1975] 1 S.C.R. 814, applied.

22. Victimology, a burgeoning branch of humane criminal justice, must find fulfillment, not through barbarity but by. compulsory recoupment by the wrong-doer of the damage inflicted, not by giving more pain to the offender but by lessening the loss of the forlorn. The State itself may have its strategy of alleviating hardships of victims as part of Article 41. So the mandatory minimum in section 433A cannot be linked up with the distress of the dependants [1251 B-C] Observations:

1. Parliamentary taciturnity does not preclude forensic examination about legislative competency. Nor does it relieve the Supreme Court as sentinel on the qui vive, from defending fundamental rights against legislative aggression, if any flagrant excess were clearly made out. [1211 F-G]

2. Courts cannot abdicate constitutional obligations even if Parliament be pachydermic and politicians indifferent, with great respect, ordinarily they are not.

indeed, Judges must go further, on account of their accountability to the Constitution and the country and clarify that where constitutional liberties are imperilled judges cannot be non-aligned. But where counterfeit constitutional I claims are pressed with forensic fervour courts do not readily oblige by consenting to be stampeded.

Justice is made of sterner stuff, though its core is like "the gentle rain from heaven" being interlaced with mercy.

11213 F-Hl 1202 Per Fazal Ali, J. (Concurring)-

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

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

Section 433A when it confines its application only to these categories of offences which are heinous and amount to a callous outrage on humanity, has taken care of the fact that a sentence out of proportion of the crime is extremely repugnant to the social sentiments of a civilized society.

[1252 D-E, 1253 H, 1254 A-B]

3. The deterrent punishment prevents occurrence of offences by-(i) making it impossible or difficult for an offender to break the law again,(ii) by deterring not only the offenders but also others from committing offences, and (iii) punishment or for that matter a punishment in the form of a long-term imprisonment may be a means to changing a person's character or personality so that out of some motivation or reasons of a personal or general nature, the offender might obey the law. [1254G-H, 1255A] 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 imprisonment of fourteen years which may in fact act as a sufficient deterrent which may prevent criminals from committing offences. [1256 E-F]

4. No doubt, 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 punishment is not resorted to, there will be complete chaos in the entire country and criminals will be let loose endangering the lives of thousands of innocent people of our country. In spite of all the resources at its commands, it will be difficult for the State to protect or guarantee the life and liberty of all the citizens, if criminals are let loose and deterrent punishment is either abolished or mitigated. Secondly, while reformation of the criminal is only one side of the picture, rehabilitation of the victims and granting relief from the tortures and suffering which are caused to them as a result of the offences committed by the criminals is a factor which seems to have been completely overlooked while defending the cause of the criminals for abolishing deterrent sentences [1256H, 1257 A-B]

5. A person who has deprived another person completely of his liberty forever and has endangered the liberty of his family has no right to ask the court to uphold his liberty. Liberty is not a one-sided concepts nor does Article 21 of the Constitution contemplate such a concept.

If a person commits 1203 a criminal offence and punishment has been given to him by a procedure established by law which is free and fair and where the accused has been fully heard, no question of violation of Article 21 arises when the question of punishment is being considered. Even so, the provisions of the Code of Criminal Procedure of 1973 do provide an opportunity to the offender, after his guilt is proved to show circumstances under which an appropriate sentence could be imposed on him. These guarantees sufficiently comply with the provisions 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. [1257C-E]

6. In cases where section 433A applies, no question of reduction of sentence arises at all unless the President of India or the Governor choose to exercise their wide powers under Article 72 or Article 161 of the Constitution which also have to be exercised according to sound legal principles. Any reduction or modification in the deterrent punishment would far from reforming the criminal be counter- productive. [1257 F-G]

7. Parliament by enacting section 433A has rejected the reformative character of punishment in respect of offences contemplated by it, for the time being in view of the prevailing conditions in our country. It is well settled that the legislature understands the needs and requirements of its people much better than the courts because the Parliament consists of the elected representatives of the people and if the Parliament decides to enact a legislation for the benefit of the people, such a legislation must be meaningfully construed and given effect to so as to subserve the purpose for which it is meant. [1257 G-H, 1258 A-B]

8. There is no real inconsistency between section 433A and Articles ?2 and 161 of the Constitution of India.

[1258E] Doubtless, the President of India under Article 72 and the State Government under Article 161 have absolute and unfettered powers to grant pardon, reprieves, remissions, etc. This power can neither be altered, modified or interfered with by any statutory provision. But, the fact remains that higher the power, the more cautious would be its exercise. This is particularly so because the present enactment has been passed by the Parliament on being sponsored by the Central Government itself. It is, therefore, manifest that while exercising 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 is vested in a very high authority, it must- be presumed that the said authority would act properly and carefully after an objective consideration of all the aspects of the matter. [1258 B-D] Per Koshal, J. (Generally concurring)

1. The contention that the main object of every punishment must be reformation of the offender and that the other objects-deterrence, prevention and retribution-should be relegated to the background and be brought into play only incidentally is not correct for three reasons: (i) There is no evidence that all or most of the criminals who are punished are amenable to 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 foreseeable future; (ii) The question as to which of the various objects of punishment should be the basis 1204 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, preponderance or predominance. As it is , the choice must be that of the legislature and not that of the court and it is not for the latter to advise the legislature which particular object shall be kept in focus in a particular situation. Nor is it open to the courts to be persuaded by their own ideas about the propriety of a particular purpose being achieved by a piece of penal legislation, while judging its constitutionality. A contrary proposition would mean the stepping of the judiciary into the field of the legislature which is not permissible. It is 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 opinion of great thinkers, jurists, politicians and saints (as to what the basis of a penal provision should be) notwithstanding; (iii) A careful study of the Penal Code brings out clearly that the severity of each.

punishment sanctioned by the law is directly proportional to the seriousness of the offence for which it is awarded. This is strongly indicative of reformation not being the foremost object sought to be achieved by the penal provisions adopted by the legislature. A person who has committed murder in the heat of passion may not repeat his act at all later in life and the reformation process in his case need not be time- consuming. On the other hand, a thief may take long to shed the propensity to deprive others of their good money. If the reformative aspect of punishment were to be given priority and predominance in every case the murderer may deserve, in a given set of circumstances, no more than a six months' period of incarceration while a thief may have to be trained into better ways of life from the social point of view over a long period, and the death penalty, the vires of which has been recently upheld by a majority of four in a five Judges Bench of this Court in Bachan Singh and others v. State of Punjab and others, [1980] 2 SCC 684, would have to be exterminated from Indian criminal law. The argument based on the object of reformation having to be in the forefront of the legislative purposes behind punishment is, therefore, fallacious. [1259B-D, G-H, 1260A-H, 1261 A]

2. The contents of section 433A of the Code of Criminal Procedure (or for that matter any other penal provision) cannot be attacked in the ground that they are hit by Article 14 of the Constitution inasmuch as they are arbitrary or irrational because they ignore the reformative aspect of punishment. [1261 A-B] & ORIGINAL JURISDICTION: Writ Petitions NOS. 865/79, 641/80, 409, 783, 695, 690, 747, 4346 of 1980, 147/79, 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, Nemi Chand Chowdhary and Sushil Kumar Jain for the Petitioners in WP 641.

A. K. Sen, (409) & Uma Datt for the Petitioners in WPs. 409 and 1365.

1205 L. M. Singhvi. S. K. lain, A. S. Sohal, Sushil 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.

P. R. Mridul and H. K. Puri for the Petitioner in WP 147.

5. 5. Khanduja for the Petitioner in WP 1860.

Arun Madon for the Petitioner in WP 2389.

A. S. Sohal, M. C. Dhingra and P. N. Gupta for the Petitioner in WP 457.

R. L. Kohli and R. C. Kohli for the Petitioner in WP 869.

P. R. Mridul, A. S. Sohal, M. C. Dhingra and Lalit Gupta for the Petitioner in WP 813.

L. N. Gupta for the Petitioners in WP 2505.

Srinath Singh, Vijay K. jindal, Sarva Mitter and M. G.

Gupta for the Petitioners in WP 1659.

A. P. Mohanty & S. K. Sabharwal, Mr. C. P. Pandey and Lalit Gupta for the Petitioners in WP 2602-10.

R. K. Garg, V. 1. Francis and Sunil K. Jain for the Petitioners in WP 4404.

V. M. Tarkunde, Govind Mukhotyy and P. K. Gupta for the Petitioner in 4346 (WP) in person K. Parasaran, Sol. General, M. K. Banerjee, Addl. Sol.

Genl. and N. Nettar and Miss A. Subhashini for R. 1 in all WPs. except in 457 & 869.

Badridas Sharma for r. 2 in 865 & r. in 147.

O. P. Rana, S. C. Maheshwari and R. K. Bhatt for State of U.P. in 865, 4392-95, 4376-91.

O. P. Sharma and M. S. Dhillon for r. in 457 & 869.

M. C. Bhandare, and M. N. Shroff for r. (State) in WP 2505.

M. Veerappa for other appearing rr. in WP 2602-10.

P. Ram Reddy and G. N. Rao for r. in WP 4115.

The Judgment of Hon'ble C.J., Bhagwati, and Krishna Iyer, JJ. was delivered by Iyer, J. Fazal Ali and Koshal, JJ. gave separate concurring opinions.

1206 KRISHNA IYER, J.-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 the learned counsel, carrying constitutional missiles in hand and demanding liberty beyond the bars. They challenge the vires of s. 433A of the Criminal Procedure Code (Procedure Code, for short) which 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 Wilde I know not whether Laws be right, or whether Laws be wrong, All that we know who lie in gaol, Is that the wall is strong;

And that each day is like a year, A year whose days are long.

(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. 433A.

Now, the concrete question and the back-up facts. All the petitioners belong to one or other of two categories.

They are either sentenced by court to imprisonment for life in cases where the conviction is for offences carrying death penalty as a graver alternative or are persons whom the court has actually sentenced to death which has since been commuted by the appropriate Governments under 5. 433(a) of the Procedure Code to life imprisonment. The common 1207 factor binding together these two categories of 'lifers' (if we may use A his 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. R Before the enactment of s. 433A in 1978 these 'lifers' we 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-sentencee, 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. 433A 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 petitions under Art. 32; and the despondent prisoners have showered arguments against the privative provision (s. 433A) as constitutional anathema and penological atavism, incompetent for Parliament and violative of fundamental rights and reformatory goals. The single issue, which has proliferated into many at the hands of a plurality of advocates, is whether s. 433A is void for unconstitutionality and, alternatively, whether the said harsh provision admits of interpretative liberality which enlarges the basis of early release and narrow down the compulsive territory of 14-year jail term. Lord Denning, in the first Hamlyn Lectures and Sir Norman Anderson in the next before last of the series, emphasised;

1208 ... 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.(l) The imprisoned poet, Oscar Wilde, wrote that courts must know when adjudicating the arbitrariness of long-term minima implacably imposed in the name of social defence :(2) Something was dead in each of us, And what was dead was Hope.

xx xx xx The vilest deeds like poison weeds Bloom well in prison-air:

It is only what is good tn Man 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.

433A. For judicial diagnosis, we must read it whole before dissecting into parts:

1209 433A. Notwithstanding anything contained in section 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 section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of 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 ad 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.

D 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. F The Sections above quoted relate to remission and commutation of sentences. There were similar provisions in the earlier Code corresponding to ss. 432 and 433 (ss. 401 and 402 of the 1898 Code), but s. 433A is altogether new.

'Ay, there's the rub'. It is obvious that s. 432 clothes the appropriate Government with the power to remit the whole or part of any sentence. The mechanics for exercising this power and the conditions subject to which the power is to be exercised are also imprinted in the Section. This is a wide power which, in the absence of s. 433A, extends to remission of the entire life sentence if Government chooses so to do.

A liberal or promiscuous use of the power of remission under s. 433(a) may mean that many a murderer or other offender who could have been given death sentence by the court but has been actually awarded only life sentence may legally bolt away the very next morning, the very 1210 next year, after a decade or at any other time the appropriate Government is in a mood to remit his sentence.

Bizarre freaks of remissions, - such, for instance, as the impertinent happenstance of a Home Minister's 'hallowed' presence on an official visit to the Prison resulting in remissions of sentences-have been brought to our notice, making us stagger at the thought that even high constitutional powers are devalued in practice by those 'dressed in a little brief authority' thereby encouraging the fallacious impression that functionaries of our Republic are re-incarnated quasi-maharajas of medieval vintage ! We will deal with it a little later under Art. 161 of the Constitution but mention it here to prove what, perhaps, provoked Parliament to enact s. 433A. In many States, we are told, lifers falling within the twin tainted categories routinely earned remissions under the extant rules resulting in their release in the matter of a few years. The penological sense of Parliament was apparently outraged by such extreme abbreviations of life sentences where the offence was grave as might have invited even death penalty.

The same situation prevailed in regard to those who had actually been subjected to death penalty but, thanks to s.433(a), had a commuted sentence of life , imprisonment.

Taking cognizance of such utter punitive laxity in these two graver classes of cases, the Joint Committee, which went into the Indian Penal Code (Amendment) Bill, suggested that a long enough minimum sentence should be suffered by both classes of lifers. The draconian provision (as some counsel have described it) was the product of the Joint Committee's proposal to add a proviso to s. 57 of the Penal Code . Its appropriate place was in the Procedure Code and so s. 433A was enacted when the Criminal Procedure Code was amended. It was a punitive prescription made to parliamentary measure which prohibited premature release before the lifer suffered actual incarceration for 14 years. No opposition to this clause was voiced in Parliament (Sixth Lok Sabha) so far as our attention was drawn, although that was, vocally speaking, a period of high tide of human rights (1978).

The objects and Reasons throw light on the 'why' of this new provision:

The Code of Criminal Procedure, 1973 came into force on the 1st day of April, 1974. The working of the new Code has been carefully watched and in the light of the experience it has been found necessary to make a few changes for removing certain difficulties and doubts. The notes on clauses explain in brief the reasons for the amendments.

1211 The notes on clauses gives the further explanation:

Clause 33: Section 432 contains provision relating to powers of the appropriate Government to suspend or remit sentences. The Joint Committee on the Indian Penal Code (Amendment) Bill, 1972, had suggested the insertion of a proviso to section 57 of the Indian Penal Code to the effect that a person who has been sentenced to death and whose death sentence has been commuted into that of life imprisonment and persons who have been sentenced to life imprisonment for a capital offence should undergo actual imprisonment of 14 years in Jail, since this particular matter relates more appropriately to the Criminal Procedure Code, a new section is being inserted to cover the proviso inserted by the Joint Committee.

This takes us to the Joint Committee's recommendation on s.57 of the Penal Code that being the inspiration for clause 33. For the sake of completeness, we may quote that recommendation:

Section 57 of the Code as proposed to be amended had provided that in calculating fractions of terms of punishment, imprisonment for life should be reckoned as equivalent to rigorous imprisonment for twenty years.

In this connection attention of the Committee was brought to the aspect that sometimes due to grant of remission even murderers sentenced or commuted to life imprisonment were released at the end of 5 to 6 years.

The committee feels that such a convict should not be released unless he has served atleast fourteen years of imprisonment.

Shortly put, the parliamentary committee concerned with the amendments to the Penal Code was seriously upset by the gross reductions and remissions resulting in premature releases of life sentences for capital offences. This proposal was transposed into the Criminal Procedure Code (Amendment) Bill in clause 33 and eventuated in the incarnation of s. 433A with none in Parliament shedding a human rights tear, although before us several counsel have turned truly eloquent, even indignant, in the name of human rights. Of course, parliamentary taciturnity does not preclude forensic examination about legislative competency.

Nor does it relieve this court, as sentinel on the qui vive, from defending fundamental rights against legislative aggression, if any flagrant excess were clearly made out.

We have to examine the legislative history of ss. 432 and 433 and study the heritage of Arts. 72 and 161 of the Constitution. But this we will undertake at the appropriate stage. Before proceeding 1212 further, we may briefly formulate the contentions which have been urged by wave after wave of counsel. The principal challenge has been based upon an alleged violation of Arts.72 and 161 by the enactment of s. 433A. Sarvashri Nand Lal, R.K. Garg, Mridul, Tarkunde and Dr. Singhvi, among others have argued this point with repetitive vehemence and feeling for personal freedom. The bar is the bastion. Indeed, Shri Garg was shocked that we were not 'shocked' by such long incarceration being made a statutory condition for release of a 'lifer' guilty of murder and was flabbergasted at even a faint suggestion that the President or the Governor might exercise his power of commutation guided, inter alia, by the parliamentary pointer expressed in s. 433A. The next contention voiced with convincing vigour by Shri Tarkunde was that s. 433A violated Art. 14 being wholly arbitrary and irrational. Shri Mridul, with persuade flavour, stressed that s. 433A lacked legislative competency under the Lists and must be struck down for the additional reason of contravention of Art. 20(1) of the Constitution and backed his plea with American authorities, Shri Kakkar made an independent contribution, apart from endorsement of the earlier submissions by other counsel. The main thrust of his argument, which was ingeniously appealing, was that the various provisions for remissions under the Prison Rules and other legislations had their full operation notwithstanding s. 433A, thanks to the savings provision in s. 5 of the Procedure Code.

Dr. Singhvi, who brought up the rear, belatedly but eruditely strengthened the arguments of those who had gone before him by reference to the abortive history of the amendment of s. 302 I.P.C. and the necessity of having to read down the text of s. 433A in the context of the story of its birth. Apart from the legislative vicissitudes in the light of which he wanted us to interpret s. 433A restrictively, Dr. Singhvi treated us to the provisions of the Irish Constitution and international human rights norms by way of contrast and desired us to give effect to the rules of remission at least as directives for the exercise of the high prerogative powers under Arts. 72 and 161 of the Constitution. Others who appeared in the many writ petitions made supplementary submissions numerically strong but lacking legal muscles, some of which we will refer to in passing. One of the lifers, having been an advocate by profession, chose to appear in person and made brief submissions in interpretation which did not impress us.

The Union of India, represented by the learned Solicitor General, has repudiated the infirmities imputed to s. 433A. We must appreciatively mention that he did tersely meet point by point, with 1213 persuasive precision, juristic nicety, case-law erudition and fair concession. His submissions have helped us see the issues in perspective and focus attention on fundamentals without being side-tracked by frills and frippery.

There has been much over-lapping inevitable in plural orality but the impressive array of arguments on a seemingly small point does credit to the expansive potential of the forensic cosmos but brings despair when we contemplate the utter chaos in court having regard to the total litigation crying for justice. A new modus vivendi is as imperative as it is urgent if the kismet of the court system must survive the challenge-'to be or not to be'! A preliminary observation may be merited since much argument has been made on the duty of this court to uphold human rights. Counsel for the petitioners, who now rightly toll the knell of prisoners' reformative freedom, have not shown us any criticism in the Press-the Fourth Estate-or by any member or Party in Parliament or outside, about this allegedly obnoxious provision repelling rules of remission and legislations for shortening sentences, the high tide of human rights notwithstanding. Judge Learned Hand's famous warning about liberty lying in the bosoms of the people comes to mind. Court comes last; where is the first ? Issues of liberty are healthy politics and those sincerely committed to human rights must come to the support of poor prisoners who have no votes nor voice and may perhaps be neglected by human rights vocalists with electoral appetites. It is a little strange that when no dissent is raised in Press or Parliament and a legislation has gone through with ease there should be omnibus demand in court as a last refuge for release of prisoners detained under a permanent legislation, forgetting the functional limitations of judicial power.

Nevertheless, we will cover the entire spectrum of submissions including those based upon fundamental freedoms because courts cannot abdicate constitutional obligations even if Parliament be pachydermic and politicians indifferent. (With great respect, ordinarily they are not.) Indeed, we must go further, on account of our accountability to the Constitution and the country and clarify that where constitutional liberties are imperilled judges cannot be nonaligned. But we must remind counsel that where counterfeit constitutional claims are pressed with forensic fervour courts do not readily oblige by consenting to be stampeded. Justice is made of sterner stuff, though its core is like 'the gentle rain from heaven' being interlaced with mercy. We may now proceed to deal with the principal arguments and logically we must dispose of the question of legislative 1214 competency of Parliament to enact a minimum period of detention in prison.

We may safely assume that, but for the bar of s. 433A.

The rules of remission and short-sentencing legislation would, in probability, result in orders of release by Government of the thousands of petitioners before us. Thus, it is of central importance to decide whether Parliament has no legislative competence to enact the impugned provision.

We dismiss the contention of competency as of little substance. It is trite law that the Lists in the Seventh Schedule broadly delineate the rubrics of legislation and must be interpreted liberally. Article 246(2) gives power to Parliament to make laws with respect to any of the matters enumerated in List III. Entries 1 and 2 in List III (especially Entry 2) are abundantly comprehensive to cover legislation such as is contained in s. 433A, which merely enacts a rider, as it were, to ss. 432 and 433(a). We cannot read into it a legislation on the topic of 'prisons and prisoners'. On the other hand, it sets a lower limit to the execution of the punishment provided by the Penal Code and is appropriately placed in the Chapter on Execution and Sentences in the Procedure Code. Once we accept the irrefutable position that the execution, remission and commutation of sentences primarily fall, as in the earlier Code (Criminal Procedure Code, 1898), within the present Procedure Code (Chapter XXXII), we may rightly assign s.

433A to entry 2 in List III as a cognate provision integral to remission and commutation, as it sets limits to the power conferred by the preceding two sections. This Limited prescription as a proviso to the earlier prescription relates to execution of sentence, not conditions in prison or regulation of prisoner's life. The distinction between prisons and prisoners on the one hand and sentences and their execution, remission and commutation on the other, is fine but real. To bastardize s. 433A as outside the legitimacy of Entry 2 in List III is to breach all canons of constitutional interpretation of legislative Lists.

Parliament has competency.

Let us assume for a moment that the laws of remission and short-sentencing are enacted under Entry 4 of List II.

In that event the States' competency to enact cannot be challenged. After all, even in prison-prisoner legislation, there may be beneficient provisions to promote the habilitative potential and reduce warder-prisoner friction by stick-cum-carrot strategies. Offer of remission paroles, supervised releases, opportunities for self-improvement by family contacts, time in community work centres and even meditational centres, can properly belong to prison legislation. Rewards by remissions, like punishments by privations are permissible under Entry 4 of List II.

1215 Indeed, progressive rehabilitatory prison laws which have a dynamic correctional orientation and reformatory destination, including meaningful intermissions and humane remissions is on the Indian, agenda of unfulfilled legislations. Apart from these futurological measures, we have here an existing Central Law, viz. the Prisons Act, 1894 which in s. 59(27) expressly sanctions rules for premature release. Even so, the power of the State is subject to Art. 246(1) and (2) and so parliamentary legislation prevails over State legislation. Moreover, Art.

254 resolves the conflict in favour of parliamentary legislation. If a State intends to legislate under Entry 2 of List III such law can prevail in that State as against a parliamentary legislation only if presidential assent has been obtained in terms of Art. 254 (2). In the present case there is hardly any doubt that s. 433A must hold its sway over any State legislation even regarding 'prison and prisoners' if its provisions are repugnant to the Central Law. We may read the Remission Schemes not as upsetting sentences but as merely providing rewards and remissions for imprison good conduct and the like. If the sentence is life imprisonment remissions, as such cannot help as Godse has laid down. If the sentence is for a fixed term, remissions may help but Sec. 433A does not come in the way. Thus, no incompatibility between Sec. 433A and remission provisions exists.

This indubitable constitutional position drove counsel to seek refuge in the limited nature of the non obstante clause in s. 433A and the savings provision in s. 5 of the Procedure Code itself. The contention was that s. 433A allowed free play for the rules of remission and short- sentencing legislation. The narrow scope of the non obstante clause was the basis of this argument. It excluded the operation of s. 432 only and thereby implicitly sanctioned the operational survival of Remission Rules made by the various States. This argument hardly appeals to reason because it fails to square with the command of the substantive text and virtually stultifies the imperative part of the Section.

In the province of interpretation, industry and dexterity of counsel can support any meaning, what with lexical plurality, case-law prodigality and profusion of canons to support any position. We had better base ourselves on the plain purpose and obvious sense of the statute which is a sure semantic navigatory before turning to erudite alternatives. Oliver Wendel Holmes has wisely said: "It is sometimes more important to emphasize the obvious than to elucidate the obscure." Another sage counsel is Frankfurter's three-fold advice :

1216 (1) Read the statute;

(2) read the statute, (3) read the statute ! If we read s. 433A and emphasise the obvious, it easily discloses the dividing line between sense and non-sense. The fasciculus of clauses (ss. 432, 433 and 433A), read as a package, makes it clear that while the Code does confer wide powers of remission and com mutation of sentences it emphatically intends to carve out an extreme category from the broad generosity of such executive power. The non obstante clause, in terms, excludes s. 432 and the whole mandate of the rest of the Section necessarily subjects the operation of s. 433(a) to a serious restriction. This embargo directs that com mutation in such cases shall not reduce the actual duration of imprisonment below 14 years.

Whether that Section suffers from any fatal constitutional infirmity is another matter but it does declare emphatically an imperative intent to keep imprisoned for at least 14 years those who fall within the sinister categories spelt out in the operative part of s. 433A. The argument is that the non obstante clause covers only s. 432 and significantly omits the common phraseology 'or any other law in force' and, therefore, all other provisions of law which reduce or remit the length of the incarceration prevail over s. 433A.

In particular, the Prison Rules and local short-sentencing laws will diminish the length of prison tenancy of all the lifers, despite the command of s. 433A. Why ? Because the non obstante clause is limited in nature and excludes only s. 432. The Prisons Act, 1894, is 'existing law' saved by Art. 366(10) and Art. 372(1). Section 59 of that Act vests rule-making power in States. Specifically s. 59(5) refers to rules regulating "the award of marks and the shortening of sentences". Clearly, therefore, the States have the power to make rules on Remission Systems and many States have, for long, made and worked such rules. They are intra vires, since even new legislations on remissions and rewards are good under Entry 4 of List II. These vintage schemes do not vanish with the enactment of the Constitution but suffer a partial eclipse if they conflict with and become repugnant to a Central law like the Procedure Code. If s. 433A, ' by sheer repugnancy, forces a permanent holiday on the prison remission laws of the States vis a vis certain classes of 'lifers', the former must prevail in situations of irreconcilability. Assuming that Rules under the Prisons Act are valid and cannot be dismissed as State law, a harmonious reading of s. 433A and the Prison Rules must be the way out.

Otherwise, the later law must prevail or implied repeal may be inferred. We may not be 1217 compelled to explore these ramifications here since the Remission Rules can peacefully co-exist with s. 433A once we grasp the ratio in Godse's case and Rabha's case.

We cannot agree with counsel that the non obstante provision impliedly sustains. It is elementary that a non obstante tail should not wag a statutory dog (see for similar idea, "The Interpretation and Application of Statutes by Reed Dickerson, p. 10). This court has held, way back in 1952 in Aswini Kumar Ghose that a non obstante clause cannot whittle down the wide import of the principal part. The enacting part is clear the non obstante clause cannot cut down its scope.

The learned Solicitor General reinforced the conclusion by pointing out that the whole exercise of s. 433A, as the notes on clauses revealed, was aimed at excluding the impact of Prison Remissions which led to unduly early release of graver 'lifers'. Parliament knew the 'vice', had before it the State Remission Systems and sought to nullify the effect in a certain class of cases by use of mandatory language. To read down s. 433A to give overriding effect to the Remission Rules of the State would render the purposeful exercise a ludicrous futility. If 'Laws suffer from the disease of Language', courts must cure the patient, not kill him. We have no hesitation to hold that notwithstanding the 'notwithstanding' in s. 433A, the Remission Rules and like provisions stand excluded so far as 'lifers' punished for capital offences are concerned.

The learned Solicitor General explai