A new variant of life imprisonment and Remissions

The object of punishment in any Penal system is three-fold. Firstly, to act as Punitive including Retributive, Secondly to act as Deterrent and thirdly to provide scope for Reform of the convict. It is said [Rajendra Prasad vs. State of U.P. 1979 AIR 916] that the retributive theory has had its day and is no longer valid. Deterrence and reformation are the primary social goals which make deprivation of life and liberty reasonable as penal panacea. Indian Penal Code which is the Basic Penal Law for the Country lists out the punishments in section 53 of the Code.

The list of punishments is exhaustive and complete for ALL the offences listed in this Code. Obviously at least this Section does not envisage a new punishment or a new variety of punishment prescribed somewhere else for offences listed under this Code. The Penalty under Firstly, in Indian Penal Code is Death. Obviously it does not have any reformatory approach as far as the convict under punishment of Death is concerned. But the other two categories namely Secondly-Imprisonment for life and Fourthly- Imprisonment, (thirdly already stands deleted) are definitely aimed at reformative approach. The routine of prison is designed to provide each inmate a wholesome avocation and scope to learn skills so that on release he need not commit crime for his survival and continue his life with self respect. His rehabilitation in society is aimed at.

It also provides a place for atonement of the wrong-doer. It is said that the object of imprisonment is also to keep the dangerous criminals away from General Public so that they cannot carry out their criminal activities. At the same time it is also not unknown that a number of Mafia Dons and Gangsters continue to operate from the confines of Jail itself. Imprisonment could be (1) Rigorous that is, with hard labour or (2) Simple. Further in case of Rigorous imprisonment, the Court may order for Solitary confinement not exceeding three months in whole. As far as Life imprisonment is concerned there are no such sub-classifications. It is also not prescribed if it is simple or rigorous.

An attempt was made through Law Commission's 39th Report in 1968, to qualify it as Rigorous but it did not translate into legislation. The Tenure of Life Imprisonment is not prescribed anywhere in the Code. Section 55 of the Penal Code provides the Commuted value of Life Imprisonment as not exceeding fourteen years. Similarly Section 57 of the Penal Code provides a Numerical Value of twenty years to Life Imprisonment term for calculating fractions of terms of punishment. These fractions occur at different places like in section 511 of the Code. As per Criminal Procedure Code Section 433 of the Code, a sentence of imprisonment of life may be commuted for a term not exceeding fourteen years and Section 433A of the same Code provides that in specified cases prisoners with life imprisonment shall not be released unless they has served at least fourteen years imprisonment. However none these Sections fail to answer the basic question-what is the tenure of life imprisonment?

The answer to the question above, that is the tenure of life imprisonment has been made in a number of post independence Judgments of the Supreme Court beginning with Gopal Vinayak Godse vs.State of Maharashtra and others decided on 12/01/1961 by a five Judge BENCH presided by Justice K.A SUBBARAO. It held that a prisoner sentenced to life imprisonment was bound to serve the remainder of his life in prison unless the sentence was commuted or remitted by the appropriate authority. Such a sentence could not be equated with any fixed term. This means the Term for Life imprisonment was indefinite as far as the number of years was concerned. Later in Ashok Kumar vs. Union of India [(1991) 3 SCC 498 it was held that the expression "life imprisonment" must be read in the context of section 45 IPC. Read so, it would ordinarily mean imprisonment for the full or complete span of life. Section 65, 116, 120 and 511 of the Indian Penal Code fix the term of imprisonment there under as a fraction of the maximum fixed for the principal offence. It is for the purpose of working out this fraction that it became necessary to provide that imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years. If such a provision had not been made it would have been impossible to work out the fraction of an in-definite term. In order to work out the fraction of terms of punishment provided in sections such as those enumerated above, it was imperative to lay down the equivalent term for life imprisonment.†Thus it is clear that in principle and unless some other circumstances intervene, a life term convict is to breathe his last in prison custody only.

In Shri Bhagwan vs. State of Rajasthan [(2001) 6 SCC 296]. the question was whether there is any provision of law where under a sentence for life imprisonment, without any formal remission by appropriate Government can be automatically treated as one for a definite period. It was stated that no such provision is found in the Indian Penal, Code of Criminal Procedure or the Prisons Act. In Swamy_Shradhanand Case [2008(13)SCC767],a three Judge Bench after discussing the prevailing practice of granting remissions came up with the order that in the peculiar circumstances of the case while sentence of death was being substituted by life Imprisonment, the prisoner shall not be released from prison till the rest of his life. This concept has now been incorporated in the punishment provided in Section 370(6) and 370(7) [Trafficking of person: case of repeat offender and public/police], 376(2) (aggravated rape), 376A (Punishment for causing death or resulting in persistent vegetative state of victim), Section 376D (Gang Rape) and Section 376E (Punishment for repeat offenders, as punishment of life imprisonment which shall mean imprisonment for the remainder of that person's natural life. It is to be noted that the relevant Amending Act [Act 13 of 2013], clearly distinguishes ordinary life imprisonment from the extra-ordinary one.

For example sub -sections (3),(4) and (5) of Section 370 contain ordinary life imprisonment whereas sub-section(6) and (7) contain the extra-ordinary one. The qualifying words for entries in sub-section (6) and (7) are not accidental but deliberate. Whether such classification of life imprisonment is legal in face of express provisions of section 53 of the Penal Code or not, needs examination. In Section 53 of the Penal Code no punishment with such qualifying terms exists. Neither one was necessary in view of well settled proposition of law. In any case the inconsistency with Section 53 must be set right at the earliest.

The power of President (Article 72) and Governor (Article 161) under the Constitution to remit or commute the sentence remains intact (State of Punjab vs. Joginder Singh 1990 AIR 1396). Therefore in the cases where the prisoner is convicted for life imprisonment till his natural life ends, the meaning of life imprisonment would need distinguishing from ordinary life imprisonment. In this case if the prisoner fails to earn a commutation of his life sentence as above or in terms of Section 55 IPC and Section 432 CrPC , no accumulation of remissions shall help him in getting out of prison in his life time. In another case (Haru Ghosh vs. State of West Bengal decided August 2009) the Supreme Court has substituted the death sentence with life imprisonment and ordered at the same time that imprisonment shall not be less than 35 years of actual jail sentence, meaning thereby, the appellant/accused would have to remain in jail for minimum 35 years. Thus from above discussions it appears that for remissions to be of any substantial use to the convict of life imprisonment, his sentence has to be first commuted by the Governor or President under powers of granting Reprieve or commuted under powers with appropriate Government under section 433 of CrPC, to a term of definite number of years and then only the remission applied. At that stage the statuary provisions of Section 433A would come into play and in specified cases the actual term spent cannot be less than 14 years. If the Court has specified any minimum number of years as in Haru's case, that also has to be kept in view. The scheme of Remission in prison term is built in all the Jail Manuals.

They aim at providing rewards points for good behavior and orderly conduct of prisoners. These are allowed as earned by prisoner or granted by the competent authority such as Prison Superintendent or Director/Inspector General of Prisons. Besides this, the scheme for additional remissions is provided by Section 432 of the Criminal Procedure Code. This however goes through certain checks in dealing with the cases where application for remission has been made to the appropriate Government. These checks were given Supreme Court's mandate in Sangeet's case [Sangeet and Another vs. State of Haryana 2013(2) SCC45]. The Court said, Before actually exercising the power of remission under Section 432 of the Cr.P.C. the appropriate Government must obtain the opinion (with reasons) of the presiding judge of the convicting or confirming Court. Remissions can, therefore, be given only on a case-by-case basis and not in a wholesale manner.

Perhaps in the anxiety of enforcing check on rampant practice of granting in-bulk remissions on certain occasions by different Governments the Supreme Court failed to appreciate that in this Section, the Sub section (1) stands independent of Sub section (2). In sub section (2) the contingency is the application moved by some one including the outsiders, whereas in subsection (1) no such contingency is envisaged and the power can be exercised suo-moto. In fact, if no conditions for remission of sentence are to be imposed, even the prisoner need not be consulted. If the procedure for Sub section(2) is to be applied in each and every case of remissions including those covered by sub section (1) by appropriate Government, such remissions say those granted on Independence day or Birth day of Mahatma Gandhi etc. will very soon become a thing of the past. It is respectfully submitted that power exercised by Sub section(1) and remissions granted thereby will mould the prisoner into law abiding citizen as he or she will look forward for such occasions of National importance and bind and attach themselves to cherished values. Perhaps on some appropriate occasion Supreme Court will have occasion to review the matter. While sentencing a convict and awarding punishment is within the realm of Judiciary, the power to remit or commute the sentence is with the Executive. This separation of power is very clear when we go through the plain language of sections 432 to section 435 CrPC, which is with appropriate Government and power of reprieve under Article 72 and Article 161, which is with the Sovereign. In fact the land mark judgment of Gopal Vinayak Godse cited above clearly brought out that the question of remission is exclusively within the province of appropriate Government.

With this scheme in place we now examine the judgment of Subash Chander vs. Krishan Lal and others [(2001) 4 SCC 458],The Court ruled. “We are inclined to hold that for him the imprisonment for life shall be the imprisonment in prison for the rest of his life. He shall not be entitled to any commutation or premature release under Section 401 of the Code of Criminal Procedure, Prisoners Act, Jail Manual or any other statute and the Rules made for the purposes of grant of commutation and remissions….…. that Krishan Lal (A1) shall remain in prison for the rest of his life. No doubt the act of convict was reprehensible in eliminating an entire family while they were sleeping and the convict's lawyer had suggested that in lieu of substituting death by life imprisonment, his client would not ask for remission or commutation. But with this recorded judgment the convict will have no incentive for good behavior and orderly conduct as remissions and commutations are ruled out in the punishment sentence itself. Perhaps he should only look above for the Creator to bestow early release from this body which in any case is mortal. Besides, it leaves us with the legal doubt whether Courts are empowered to enter into the realm of reprieves and commutations and decide whether a convict, ever in future would not be fit for such generosity of clemency from Sovereign or favor of Executive not. 

By Sharda Prasad

Advocate Supreme

Court 21st December 2013 ____________