Holding

Section 433A of the Code of Criminal Procedure is a valid, non‑colourable provision that applies as written, and although clemency powers under Articles 72/161 may override it, they have not been exercised; therefore the petitioner is not entitled to premature release.

Summary

Ashok Kumar was convicted of murder and sentenced to life imprisonment. He sought premature release under the Rajasthan Prisons (Shortening of Sentences) Rules, 1958, arguing that Section 433A of the Code of Criminal Procedure, 1973 – which imposes a 14‑year minimum before any release for life convicts of capital offences – was a colourable piece of legislation, unconstitutional and could not override the clemency powers of the Governor under Articles 72 and 161 of the Constitution. The Supreme Court held that Section 433A was valid, not colourable, and applicable as written; Parliament had competence to amend the Code, and the failure of the related IPC amendment Bill did not affect its validity. While constitutional clemency powers can supersede the statutory restriction, they had not been exercised, and the petitioner had not completed 14 years of actual imprisonment, so his detention was lawful. The writ petition was dismissed.

Issues considered

Whether the insertion of Section 433A in the Code of Criminal Procedure constitutes colourable legislation or legislative fraud given the non‑passage of the corresponding IPC Amendment Bill.
Whether Section 433A violates Articles 14 and 21 of the Constitution.
Whether Section 433A can be read down to apply only to capital offences as originally intended.
Whether the constitutional clemency powers under Articles 72 and 161 override the statutory restriction of Section 433A.
Interpretation of ‘life imprisonment’ under the IPC and its relation to remission and commutation provisions.
Whether the Rajasthan Prisons (Shortening of Sentences) Rules, 1958 can be used as guidelines for the exercise of clemency powers.
Whether conditional premature release of a life convict before completing 14 years of actual imprisonment is permissible.

Legislation cited

Code of Criminal Procedure, 1973s. Section 432, s. Section 433, s. Section 433A
Constitution of Indias. Article 14, s. Article 161, s. Article 21, s. Article 245, s. Article 246, s. Article 72
Indian Penal Code, 1860s. Section 45, s. Section 54, s. Section 55, s. Section 57
Rajasthan Prisons (Shortening of Sentences) Rules, 1958

Subjects

colourable legislationlegislative fraudSection 433Apremature releaselife imprisonmentremissionclemencyArticles 72Article 161constitutional validityCriminal Procedure CodeIndian Penal Code amendment

Judgment

ASHOK KUMAR ALIAS GOLU
A
V.
UNION OF INDIA AND ORS.

JULY 10, 1991

B [A.M. AHMADI, P.B. SAWANT AND S.C. AGRAWAL, JJ.]

Constitution of India, 1950: Articles 14 and 21, 245 & 246--
lnsertion of S. 433A into the Code of Criminal Procedure, 1973-
-Validity of-Colourable legislation or legislative fraud-Meaning of-
Doctrine ofpith and substance-Applicability of.
c Articles 72, 161: Clemancy-Powers of-Sections 54 and 55
/PC-Section 433A Cr. P.C. and provisions of Remission Rules-
Whether subject to the overriding powers of,clemency.

Indian Penal Code, 1860; Sections 45, 54, 55 and 57-Fixing
D terms of imprisonment-'Life imprisonmenf-Whether imprisonment
for full span of life.
'
Sections 54 and 55: Whether subject to overriding powers of Arti-
cles 72/ 161 of the Constitution of India.

E , Criminal Procedure Code, 1973: Section 433A-Insertion a/-
Whether a colourable legislation-Constitutional validity of-IPC
(Amendment) Bill not passed by Lok Sabha while passing Cr. P.C.
(Amendment) Bill-Government claiming that both the bills were
interlinked-Effect on the Amendment Bill passed, inserting S. 433A-
Prisoners covered under the Section-Prisoners who were sentenced to
p death by Courts, but whose sentence commuted to life imprisonment by
executive demency-Whether forms a distinct and separate class.

Sections 432, 433 and 433A: Release of prisoners under Remis-
sion Rules-Remittance. of sentencf"-Exercise of power under sections
432 and 433-Whether restricted by S. 433A. ·
G
Rajasthan Prisons (Shortening of Sentence§) Rules, 1950: Pre-
mature release of Prisoners-Whether subject to overriding powers of
Sections 432, 433 and 433A Cr. P. C. and Articles 72/ 161 of the Con-
stitution of India, 1950.

H Statutory Construction: Extern1,1I aid-Language of a provision

858
ASHOK KUMAR v. U.0.1. 859

plain and clear-Reading down the same with the aid of a Bill which has not
A
become an enactment-Whether could be resorted to.

The petitioner was. convicted for murder and sentenced to life
imprisonment, which was confirmed by the High Court. Later, he f'ded a
Writ Petition before the High Court for premature release on the plea
that he was entitled to be considered for release under the Rajasthan B
Prisons (Shortening of Sentences) Rules, 1958 notwithstanding the
insertion of Section 433A in the Code of Criminal Procedure, 1973 with
efl'ect from 18.12.1978, just two days before his conviction. It was con-
tended that Section 433A Cr. P.C. which places an embargo of 14years
imprisonment before premature release could not curtail the constitu-
tional power vested in the Governor by virtue of Article 161 of the
Constitution. The High Court, dismissed the Writ Petition on the C
ground that the petitioner's representations to the Governor and State
Home Minister were pending consideration. However, the High Court
directed that the two representations of the petitioner should be disposed·
ofwithin one month.
D
Unable to secure his release from the High Court as also from the
State Government, the petitioner f'ded the present Writ Petition before
this Court, contending that the insertion of Section 433A in the Code of
Criminal Procedure was invalid; that in the absence of guidelines under
Arts. 72/liil of the Constitution, Section 433A Cr. P.C. could not apply
to life convicts; that the Rajasthan Prisons (Shortening of Sentences) E
Rules, 1958 would pervail over Section 433A Cr. P.C., and that the
constitution31 guarantee under Articles 14 and 21 was violated.

Dismissing the Writ Petition, this Court

HELD: 1.1. It is only when a legislature which has no power to F
legislate frames a legislation so camouflaging it as to appear to be within
its competence when it knows it is not, it can be said that the legislation
so enacted is colourable legislation. If in pith and substance the legisla-
tion does not belong to the subject falling within the limits of its power
but is outside it, the mere form of the legislation will not be determinate
of the legislative competence. [871C; 872C] G

1.2. It is not a case of legislative incompetence to enact section
433A. No such contention was raised. Besides the question of vires of
section 433A of the Code has been determined by the Constitution
Bench of this Court in Maru Ram's case. This Court repelled all
the thrusts aimed at challenging the constitutional validity of section H
433A. [87IA]
860 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

A 1.3. It is no body's contention that Parliament was not competent
to amend the Criminal Procedure Code by which section 433A was
inserted. Whether or not the connecting Indian Penal Code (Amend-
ment) Bill ought to have been cleared or not was a matter left to the
wisdom of the Lok Sabha. Merely because the Criminal Procedure Bill
was made law and the Indian Penal Code (Amendment) Bill was passed
B
by the Rajya Sabha did not obligate the Lok Sabha to clear it. The Lok
Sabha could have its own views on the proposed Indian Penal Code
amendments. It may agree with the executive's policy reflected in the
Bill, with or without modifications, or not at all. Merely because in the
subsequent instructions issued by the letter of July 10, 1979 and the
accompanying note, the Joint-Secretary had interlinked the two Bills,
C the Lok Sabha was under no obligation to adopt the measure as such
representation could not operate as estoppel against it. It is obvious that
no question of ma/a fides on the part of the legislature was involved in
the enactment of one legislation and failure to enact another. There is
no question of 'legislative fraud' or 'colourable legislation' involved in
D the backdrop of the. legislative history of section 433A of the Code of
Criminal Procedure. (8720-H; 873A]
>
1.4. In the present case if both the Bills had become law, then in
understanding or construing one legislation or the other, the scheme
common to both would he kept in view and he permitted to interact. But
where the linkage does not exist on account of the Indian Penal Code
E (Amendment) Bill not having become law, section 433A cannot he read
down to apply to only those classes of capital offences to which it woold
have applied had the said Bill been passed by the Lok Sabha in the tenm
in which it was approved by the Rajya Sabha. The language of section
433A is clear and unambiguous and does not call for extrinsic aid for its
interpretation. To read down or interpret section 433A of the Code with
F the ;lid of the changes proposed by the Indian Penal Code (Amendment)
Bill would tantamount to treatinK the provisions of the said Bilis
forming part of the Indian Penal Code, which is clearly impermissi-
ble. To put such an interpretation with the aid of such extrinsic
material would result in violence to the plain language of section
G 433A of the Code. [8730-F]

Maru Ram v. Union of India, (1981) 1SCR1196, followed.

K.C. Gajapati Narayan Deo v. State of Orissa, (1954) SCR 1 and
Sonapur Tea Co. Ltd. v. Must Mariruznessa, (1962] l SCR 724, relied
H on.
ASHOK KUMAR v. U.0.1. 861

State of Himachal Pradesh v. A Parent of a student of Medical A
College, Simla, [1985] 3 SCC 169and W.R. Moram v. Deputy Commis-
sioner of Taxation for N.S. W., [1940] AC 838, referred to.

2 .1. The law governing suspension, remission and commutation
of sentence is both statutory and constitutional •.The stage for the exer- B
cise of this power generally speaking is post-judicial, i.e., after the
judicial process has come to an end. The duty to judge and to award
appropriate punishment to the guilty is a judicial function which cul·
minates by a judgment pronounced in accordance with law. After the
·• judicial function thus ends the executive function of giving effect to the
judicial verdict commences. [873G-H; 874A]
c
2.2. One who could have been visited with the extreme punish-
ment of death hut on account of the sentencing court's generosity was
sentenced to the lesser punishment of Imprisonment for life and another
who actually was sentenced to death but on account of executive
generosity bis sentence was commuted under section 433(a) for Impri-
D
sonment for life have been treated under section 433A as belonging to
that class of prisoners who do not deserve to be released unless they
have completed 14 years of actual incarceration. Thus, the effect of
section 433A is to restrict the exercise of power under sections 432 and
433 by the ,stipulation that the power will not be so exercised as would
enable the two categories of convicts referred to in section 433A to
E
freedom h4ifore they have completed 14 years of actual Imprisonment.
This is the legislative policy which is clearly discernible from the plain
language of section 433A of the Code. Such prisoners constitute a singie
class and have, therefore, been subjected to the uniform requirement of
suffering atleast 14 years of internment. [874G-H; 875A·C]
F
3. 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, 119, 120 and 511 of the
Indian Penal Code fix the term of Imprisonment thereunder as a frac-
tion of the maximum fixed for the principal offence. It is for the purpose
... of working out this fraction that it became necessary to provide under
G
section 57 that imprisonment for life shall be reckoned as equivalent to
imprisonment for 20 years. If such a provision had not been made it
w9uld have been impossible to work out the fraction of an indefinite
term. In order to work out the fraction of terms of punishment provided
in the above sections it was imperative to lay down the equivalent term
for life Imprisonment. [875G; 876C-E] H
862 SUPREME COURT REPORTS [1991] 2 S.C.R.

A Gopal Godse v. State of Maharashtra, [i961] 3 SCR 440;
aff"mned.

4.1. Unless the sentence for life imprisonment is commuted or
remitted by the appropriate authority under the provisions of the rele·
vant law, a convict is bound in law to serve the entire life term in prison;
B the roles framed under the Prisons Act or life statute may enable such a
convict to earn remissions but such remissions will not entitle him to
release before he has completed 14 years of incarceration in view of
section 433A of the Code unless of course power has been exercised
under Article 72/161 of the Constitution. Where a person has been
sentenced to imprisonment for life the remissions earned by him during
his internment in prison under the relevant remission rules have a
c limited scope and must be confined to the scope and ambit of the said
roles and do not acquire significance until the sentence is remitted
under section 432, in which case the remission would be subject to
limitation of section 433A of the Code, or constitutional power has been
exercised nnder Articles 72/ 161 of the Constitution. ,[878D-E]
D
4.2. Articles 72 and 161 confer the clemency power of pardon,
etc., on the President and the State Governors, respectively. This
constitntional power would override the statutory power contained in
sections 432 and 433 and the limitation of section 433A of the Code as
well as the power conferred by sections .54 and 55 !PC. No doubt, this
E power has to be exercised by the President/Governor on the advice of
his Council of Ministers. [880A·B]

4.3. Though in Maru Ram's case, this Court recommended the
framing of guidelines for the exercise of power under Articles 72/ 161 of
the Coustitntion of India, it had no binding effect on the Constitution
F Bench which decided Kehar Singh's case. Nor has this Court said any-
thing in Kehar Singh's Case with regard to uSing the provisions of extent Re-
mission Rules as guidelinesforihe exercise of clemency powers. [881H; 882A]

Maru Ram v. Union of India, [1981) l SCR 1196; Kehar Singh v.
Union of India, [1989) l SCC 204; Bhagirath v. Delhi Administration,
G [1985] 3 SCR 743 and Gopal Godse v. State of Maharashtra, [1961) 3
SCR 440, affirmed.

5. It is true that Articles 72/161 make use of two expressions
•remissions' with regard to punishment and 'remit' in relation to sen-
tence but it is not proper to express any opinion as to the content and
H amplitude of these two expressions in the abstract, in the absence of a
fact-sitnation. '[882B]
ASHOK KUMAR v. U.0.1. (AHMADI, J.] 863

6.1. The hypothetical question whether it was permissible in law
A
to grant conditional premature release to a life convict even before
completion of 14 years of actual imprisonment, which release would
-+ tantamount to the prisoner serving time for the purpose of section 433A
Cr. P.C., need not be answered without being fully aware oftbe condi-
tions imposed for release. In each case, the question whether the grant
of conditional premature release answers the test laid down by this B
Court in Maru Ram's case, would depend on the nature of the condi-
tions imposed and the circumstances in which the order is passed and is
to be executed. No general observation can be made. [882C-H]

Maru Ram v. Union of India, [1981] 1SCR1196; referred to.

7. In the instant case, petitioner has not completed 14 years of C
actual incarceration and as such he cannot invoke sections 432 and 433
of the Code of Criminal Procedure. His continued detention is consis·
tent with section 433A of the Code and there is nothing on record to
show that it is otherwise illegal and void. The outcome of his clemency
application under the Constitution is not put in issue in the present D
proceedings if it has been reject•d, and if the same is pending despite
the directive of the High Court it would be open to the petitioner to
approach the High Court for the compliance of iis order. [883E·Ff

ORIGINAL JURISDICTION: Writ (Cr!.) Petition No. 96 of
1989. E

(Under Article 32 of the Constitution of India).

Nand Lal, S.K. Bagga and Mrs. S.K. Bagga for the Petitioner.

V.C. Mahajan, Mrs. Indra Sawhney, Ms. A. Subhashini, F
Aruneshwar Gupta, Surya Kant and I. Makwana for the Respondents.

The Judgment of the Court was delivered by

AHMADI, J. Liberty is the life line of every human being. Life
without liberty is 'lasting' but not 'living'. Liberty is, therefore, con- G
sidered one of the most precious and cherished possessions of a human
being. Any attempt to take liberties with the liberty of a human being
is visited with resistance. Since no human being can tolerate fetters on
~··
his personal liberty it is not surprising that the petitioner Ashok
Kumar alias Golu continues to struggle for his liberty, premature
release, not fully content with the enunciation of the Jaw in this behalf H
864 SUPREME COURT REPORTS [1991] 2 S.C.R.

A by this Court in Maru Ram v. Union of India, [1981] 1SCR1196.

The questions of law which are raised in this petition brought
under Article 32 of the Constitution arise upon facts _of which we give
an abridged statement. On the basis of a FIR lodged on October 21,
1977, the petitim1er was arrested on the next day- and he along with
B others was chargesheeted for the.murder of one Preln Nagpal. The
petitioner was tried and convicted for murder on December 20, 1978 in
Sessions C~se No. 32 of 1978 by the learned Sessions Judge,
Ganganagar, and was ordered to suffer imprisonment for life. His
appeal, Criminal Appeal No. 40 of 1979, was dismissed by the High
Court of Rajasthan. Since then he is serving time. It appears that he
C filed a Habeas Corpus Writ Petition No. 2963 of 1987 in the High
Court of Rajasthan at Jodhpur for premature release on the plea that
he was entitled to be considered for such release under the relevant
rules of Rajasthan Prisons (Shortening of Sentences) Rules, 1958,
(hereinafter alluded to as 'the 1958 Rules') notwithstanding the inser-
tion of Section 433A in the Code of Criminal Procedure, 1973
D (hereinafter called 'the Code') with effect from December 18, 1978,
just two days before his conviction. His grievance was that he was
being denied the benefit of early release under the 1958 Rules under
the garb of the newly added Section 433A, on the ground that it places
a statutory embargo against the release of such a convict 'unless he has
served atleast 14 years of imprisonment'. He contended that the said
E provision could not curtail the constitutional power vested in the
Governor by virtue of Article 161 of the Constitution which had to be
exercised on the advice of the Council of Ministers which advice could
be based on a variety of considerations including the provisions of the
1958 Rules. The writ petition was, however, dismissed by the High
Court on October 31, 1988, on the ground that it was premature
F inasmuch as the petitioner's two representations, one to the Governor
and another to the State Home Minister, were pending consideration.
The High Court directed that t_hey should be disposed of within one
month. In this view of the matter the High Court did not deem it
necessary to consider the various questions of law raised in the petition
on merits. After the rejection of his writ petition by the High Court,
G the petitioner through his counsel addressed a letter dated November
28, 1988 to the Governor inviting his attention to the earlier represen-
tation dated August 29, 1988 and requesting him to take a decision
thereon within a month as observed by the High Court. Failing to
secure his early release notwithstanding the above efforts, the
petitioner has invoked the extraordinary jurisdiction of this Court
H under Article 32 of the Constitution.
I

~
ASHOK KUMAR v. U.0.1. [AHMADI, J.] 865

The petitioner's case in a nutshell is that under the provisions of
the 1958 Rules, a 'lifer' who has served an actual sentence of about 9 A
years and 3 months is entitled to be considered for premature release if··
the total sentence including remissions works out to 14 years and he is
reported to be of good behaviour. However, the petitioner contends,
his case for premature release is not considered by the concerned
authorities in view of the newly added section 433A of the Code on the B
interpretation that by virtue of the said provision the case df a 'lifer'
cannot be considered for early release unless he has completed 14
years of actual incarceration, the provisions of sections 432 and 433 of
the Code as well as the 1958 Rules notwithstanding. According to him,
evt;n if the provisions of sections 432 and 433 of the Code do not come
into play unless a convict sentenced to life imprisonment has comp-
leted actual incarceration for 14 years as required by section 433A, the c
authorities have failed to realise that section 433A cannot override the
constitutional power conferred by Articles 72 and 161 of the Constitu-
tional on the President and the Governor, respectively, and the State
Government i.e,, the Council of Ministers, could advise the Governor
to exercise power under Article 161 treating the 1958 Rules· as D
1 guidelines. Since the petitioner had already moved the Governor
under Article 161 of the Constitution it was incumbent on the State
Government to consider his request for early release, notwithstanding
section 433A, and failure to do so entitled the petitioner to immediate
release as his continued detention was, wholly illegal and invalid. In
support of this contention the petitioner has placed reliance on the E
ratio of Maru Ram's decision.

The petitioner brands section 433A of the Code to be a 'legisla-
tive fraud' inasmuch as the said provision was got approved by the
Parliament on the assurance that the said provision is complementary
to the various amendments proposed in the Indian Penal Code. In the F
alternative it is contended that in any case this Court should by a
process of interpretation limit the· scope of section 433A of the Code to
those cases only to which it would have been limited had the legislation
proposing jlmendments in the Indian Penal Code gone through. In any
case after the decision of this Court in Maru Ram's case, the:efficacy of
section 433A is considerably reduced and the petitioner is entitled to G
early release by virtue of the power contained in Article 161 read with
the 1958 Rules even if guidelines are not formulated notwithstanding
the subsequent decision of this Court in Kehar Singh v. Union of India,
(1989] 1 SCC 204. Counsel submitted that after the decision of this
Court in Bhagirath v. Delhi Administration, [1985] 3 SCR 743 where-
under this Court extended the benefit of section 428 of the Code even H
866 SUPREME COURT REPORTS [1991] 2 S.C.R.

to life convicts, the ratio in Gopal Godse v. State of Maharashtra,
A
[1961] 3 SCR 440 had undergone a change. On this broad approach,
counsel for the petitioner, formulated questions of law which may be
stated as under:

1. Whether the insertion of section 433A in the Code was a
B legislative fraud inasmuch as the connected legislation, namely,
the Indian Penal Code (Amendment) Bill XLII of 1972 did not
become law although passed by the Rajya Sabha as the IPC
(Amendment) Act, 1978, on November 23, 1978?

2. Whether on the ratio of Marn Ram's decision, in the absence
of any guidelines formulated by the State under Article 72 or 161
c of the Constitution, section 433A of the Code would not apply to
life convicts and the 1958 Rules will prevail for the purpose of
exercise of power under Article 72 or 161 of the Constitution?

Inter-connected with this question, the following questions were
D raised:

a) Whether Maru Ram's decision is in conflict with Kehar
Singh's J.udgment on the question of necessity or otherwise of
guidelines for the exercise of power under Article 72 and 161 of
the Constitution?
E
b) Whether the use of two expressions "remiss.ion" and "remit"
in Articles 72 and 161 convey two different meanings and if yes,
whether the content of power in the two expressions is different? ~

c) Whether the persons sentenced to death by Courts, whose
F- death sentence has been commuted to life imprisonment by
executive clemency, form a distinct and separate class for the
purpose of application of section 433A of the Code as well as for
the purpose of necessity (or not) of guidelines for premature
release in exercise of power under Articles 72 and 161, from the
persons who at the initial stage itself were sentenced to life impri-
G sonment by CO!lrt verdict? And whether in the latter case guide-
lines are mandatory under Article 72 and 161 and a well designed
scheme of remission must be formulated if the constitutional
guarantee under Articles 14 and 21 is to be preserved?

d) Whether the whole law of remission needs to be reviewed
H after Bhagirath's case wherein this Court held that imprisonment
ASHOK KUMAR v. U.O.l. [AHMADI, J.] 867

for life is also an imprisonment for a term and that a life convict
A
is entitled to set off under section 428 Cr. P .C.?

e) Whether it is permissible in law to grant conditional prema-
ture release to a life convict even before completion of 14 years
of. actual imprisonment notwithstanding section 433A of the
Code? If yes, whether the grant of such conditional release will B
be treated as the prisoner actually serving time for the purpose of
section 433A of the Code?

First the legislative history. The Law Commission had in its 42nd
Report submitted in June, 1971 suggested numerous changes in the
Indian Penal Code (IPC). Pursuant theretq an Amendment Bill No.
XLII of 1972 was introduced in the Rajya Sabha on December 11,
c
1972 proposed wide ranging changes in the IPC. One change proposed
was to bifurcate section 302, IPC into two parts, the first part provid-
ing that except in cases specified in the second .part, the punishment
for murder will be imprisonment for life whereas for the more heinous
crimes enumerated in clauses (a) to (c), of sub-section (2) the punish- D
ment may be death or imprisonment for life. A motion for reference of
the Bill to the Joint Committee of both the Houses was moved in the
Rajya Sabha on December 14, 1972 by the then Minister of State in the
Ministry of Home Affairs and was adopted on the same day. The Lok
Sabha concurred in the motion of the Rajya Sabha on December 21,
1972. The Joint Parliamentary Committee presented its report to the E
Rajya Sabha on January 29, 1976 recommending changes in several
clauses of the Bill. While retaining the amendment proposed in section
302, IPC, it recommended inclusion of one more Clause (d) after clause
(c) in sub-section (2) thereof and at the same time recommended dele-
tion of section 303, IPC. It also recommended substitution of the
existing section 57, IPC, by a totally new section, the proviso whereto F
has relevance. The proposed proviso was as under:

"Provided that where a sentence of imprisonment for life "is
imposed on conviction of a person for a capital offence, or
where a sentence of death imposed on a person has been
commuted into one of imprisonment for life, such person G
shall not be released from prison unless he had served at
.
least fourteen years of imprisonment.".

The reason which impelled the Committee to introduce the above
proviso was "that sometimes due to grant of remission even murderers

I
sentenced or commuted to life imprisonment were released at the end H
868 SUPREME COURT REPORTS [1991] 2 S.C.R.

A of 5 to 6 years." The Committee, therefore, felt that such a convict
should not be released unless he has served atleast 14 years of impris-
onment. It is evident from the scheme of the aforesaid recommenda-
tions that the proviso was intended to apply to only those convicts who
were convicted for a capital offence (this expression was defined by
clause 15 of the Bill recommending substitution of section 40, IPC, as
B 'an offence for which death is one of the punishments provided by
law') or whose sentence of death was commuted into one of imprison-
ment fur life and not to those who were governed by the first part of the
proposed section 302, IPC. It was pointed out by counsel that similar
benefit would have accrued to offenders convicted for offences
covered under section 305, 307 or 396 if the proposed sections 305,
c 307(b) and 396(b) had come into being. That, contends the petitioner's
counsel, would have considerably narrowed down the scope of the
proposed proviso to section 57, IPC, and consequently the rigour of
the said provision would have fallen on a tiny minority of offenders
guilty of a capital offence. Pursuant to the recoinmendations made by
the Committee, two bills, namely, the IPC (Amendment) Bill, 1978
D and the Code of Criminal Procedure (Amendment) Bill, 1978, came to
be introduced, the former was passed with changes by the Rajya Sabha
on November 23, 1978 while the latter was introduced in the Lok
Sabha on November 28, 1978, and in the Rajya Sabha on December 5,
1978. The proposal to add a proviso to the proposed section 57, IPC
did not find favour as it was thought that the said subject matter
E appropriately related to Chapter XXXII of the Code and accordingly
the said provision was introduced as section 433A in the Code. While
the amendments to the Code became law with effect from December
18, 1978, the IPC amendments, though passed by the Rajya Sabha
could not be got through the Lok-Sabha and lapsed. It may here be
mentioned that the IPC Bill as approved by the Rajya Sabha contained
F the proposal to divide section 302 into two parts, in fact an additional
clause was sought to be introduced in the second part thereof and
sections 305, 307 and 396 were also sought to be amended as proposed
by the Committee. This in brief is the legislative history.

In the backdrop of the said legislative history'· counsel for the ·
G petitioner argued that a legislative fraud was practised by enacting
section 433A of the Co<ie and failing to carry out the corresponding
changes in sections 302, 305, 307, 396, etc., assured by the passing of
the Indian Penal Code (Amendment) Act, 1978, by the Rajya Sabha
on November 23, 1978. According to him it is evident from the scheme
of the twin Amendment Bills that the legislative intent was to apply
H the rigour of section 433A of the Code to a small number of heinous
ASHOK KUMAR v. U.0.J. [AHMADI. J.] 869

crimes which fell within the meaning of the expression capital offence.
A
It was to achieve this objective that section 302, IPC was proposed to
be bifurcated so that a large number of murders would fall within the
first part of the proposed provision which prescribed the punishment
of life imprisonment only and thus fell beyond the mischief of section
433A of the Code. To buttress his submission our attention was invited
to Annexure II to the petition which is a copy of the letter dated July B
10, 1979, written by the Joint-Secretary in the Ministry of Home
Affairs to Home Secretaries of all the concerned State Governments
explaining the purport of the newly added section 433A. After exp-
laining that section 57, IPC, had a limited scope, namely, calculating
fractions of terms of imprisonment only, he proceeds to state in
paragraph 3 of the letter as under:
c
"The restrictions imposed by section 433A applies only to
those life convicts who are convicted for offences for which
death is one of the punishments prescribed by law. In the
Indian Penal Code (Amendment) Bill, 1978 as passed by
the Rajya Sabha and now pending in the Lok Sabha, D
., section 302 is proposed to be amended so as to provide that
the normal punishment for murder shall be imprisonment
for life and that only in certain cases of aggravating
circumstances will the court have discretion to award death
sentences."
E
Then in paragraph 4 he proceeds to clarify as under:

"Even regarding these convicts the restriction imposed by
section 433A is not absolute for, the Constitutional power
of the Governor under Article 161 to commute and remit
sentences remains unaffected and can be exercised in each F
case in which the exercise of this power is considered
suitable."

In paragraph 6 of the detailed note appended to the said letter, the
legal position was explained thus:
G
"It may be pointed out that the restriction introduced by
section 433A does not apply to all life convicts. It applies
only to t&ose prisoners who are convicted of a capital
offence i.e. an offence for which death is one of the punish-
ments prescribed by law. Once the Indian Penal Code
(Amendment) Bill becomes the law, offenders sentenced H
870 SUPREME COURT REPORTS [1991] 2 S.C.R.

A
under proposed section 302(i) will not be covered by this
provision as the offence will not be a capital offence. Thus
in future the restriction introduced by st!ction 433A will not
be applicable to them and will, in effect, cover only a very
small number of cases. Even in this small number of cases
the restriction will not in any way curb the Constitutional
B power to grant remission and commutation vested in the
President or the Governor by virtue of Articles 72 and
161."

There can be no doubt that by this letter it was clarified that section
433A of the Code will apply to only those convicted of a capital offence
arid not to all life convicts. It is equally clear that the said provision was
c expected to apply to exceptionally heinous offences falling within the
definition of 'capital offence' once the Indian Penal Code (Amend-
ment) Bill became law. Section 433A was, therefore, expected to deny
premature release before completion of actual 14 years of incarcera-
tion to only those limited convicts convicted of a capital offence, i.e.,
D an exceptionally heinous crime specified in the second part of the
proposed section 302, IPC. Lastly it clarifies that section 433A cannot
and does not in any way affect the constitutional power conferred on
the President/Governor under Article 72/ 161 of the Constitution. It
cannot, therefore, be denied that this letter and the accompanying
note does give an impression that certain provisions of the Indian
E Penal Code (Amendment) Bill were interlinked with section 433A of
the Code.

Assuming the Criminal Procedure Code (Amendment) Bill and
the Indian Penal Code (Amendment) Bill were intended to provide an
intergrated scheme of legislation, can it be said that the failure on the
F part of the Lok Sabha to pass the letter renders the enactment of the
former by which section 433A was introduced in the Code, 'a legisla-
tive fraud' .as counsel has liked to call it or to use a more familiar
expression 'colourable exercise of legislative power'? Counsel submit-
ted that section 433A was got introduced on the statute book by decep-
tion, in that, when the former Bill was made law an impression was
G given that the twin legislation which had already been cleared· by the
Rajya Sabha on November 23, 1978 would in due course be cleared by
the Lok Sabha also so that the application of section 433A would be
limited to capital offences only and would have no application to a
large number of_'lifers'. It must be conceded that such would have been the
impact if the Indian Penal Code (Amendment) Bill was passed by the

I
H Lok Sabha in the form in which the Rajya Sabha had approved it.
ASHOK KIJMAR v. U.0.1. (AHMADI, J.] 871

This is not a case of legislative incompetence to enact section
A
433A. No sucli submission was made. Besides the question of vires of
section 433A of the Code has been determined by the Constitution
Bench of this Court in Maru Ram's case. This Court repelled all the
thrusts aimed at challenging the constitutional validity of section
433A. But counsel submitted that the question was not examined from
the historical perspective of the twin legislations. Counsel for the State B
submitted that it was not permissible for us to reopen the challenge
closed by the Constitution Bench on the specious plea that a particular
argument or plea was not canvassed or made before that Bench. The
objection raised by counsel for the State Government is perhaps not
without substance but we do not propose to deal with it because even
otherwise we see no merit in the submission of the petitioner's
counsel. It is only when a legislature which has no power to legislate c
frames a legislation so camouflaging it as to appear to be within its
competence when it knows it is ucit, it ~an be said ihat the legislation so
enacted is colourable legislation. In K.C. Gajapati Narayan Dea v.
State of Orissa, (1954] SCR 1 the Orissa Agricultural Income-tax
(Amendment) Act, 1950, was challenged on the ground of colourable D
legislation or a fraud .on the Constitution as its real purpose was to
effect a drastic reduction in the amount of compensation payable
under the Orissa Estates Abolition Act, 1952. The facts were that a
Bill relating to the Orissa Estates Abolition Act, 1952 was published in
the Gazette on January 3, 1950. It provided that any sum payable for
agricultural income-tax for the previous year should be deducted from E
the gross asset of an estate for working out the net income on the basis
whereof compensation payable to the estate owner could be deter-
mined. Thereafter on January 8, 1950, a Bill to amend the Orissa
Agricultural Income-tax, 1947, was introduced to enhance the highest
rate of tax from 3 annas to 4 annas in a rupee and to reduce the highest
slab from Rs.30,000 to Rs.20,000. The next Chief Minister, however, F
dropped this Bill and introduced a fresh Bill enhancing the highest rate
to 12 annas 6 pies in a rupee and reducing the highest slab to Rs.15 ,000
only. On the Same becoming law it was challenged on the ground that
the real purpose of the legislation was to drastically reduce the com-
pensation payable to the estate owners. Mukherjea, J., who spoke for
the Court observed as under: G

"It may be made clear at the outset that the doctrine of
colourable legislation does not involve any question of
bona fides or ma/a [ides on the part of the legislature. The
whole doctrine resolves itself into the question of compe-

I
tency of a particular legislature to enact a particular law. If H
872 SUPREME COURT REPORTS [1991] 2 S.C.R.

the legislature is competent to pass a particular law, the
A
motives which impelled it to act are really irrelevant. On
the other hand, if the legislature lacks competency, the
question of motive does not arise at all. Whether a statute
is constitutional or not is thus always a question of power."

B Thus the whole doctrine resolves itself into a question of competency
of the cqncerned legislature to enact the impugned legislation. If the
legislature has transgressed the limits of its powers and if such trans-
gression is indirect, covert or disguised, such a legislation is described
as colourable in legal parlance. The idea conveyed by the use of the
said expression is that although apparently a legislature in passing the
C statute purported to act within the limits of its powers, it had in subs-
. lance and reality transgressed its powers, the transgression being vei-
led by what appears on close scrutiny to be a mere pretence or disguise.
In other words if in pith and substance the legislation does not belong
to the subject falling within the limits of its power but is outside it, t_he
mere form of the legislation will not be determinate of the legislative
D competence. In Sonapur Tea Co. Ltd. v. Must. Mazirunnessa, [1962] 1
SCR 724 it was reiterated relying on Gajapati' s case that the doctrine
of colourable legislation really postulates that legislation attempts to
do indirectly what it cannot do directly. Such is not the case before us.
It is no body's contention that Parliament was not competent to amend
the Criminal Procedure Code by which section 433A was inserted.
E Whether or not the connecting Indian Penal Code (Amendment) Bill
ought to have been cleared or not was a matter left to the wisdom of
the Lok Sabha. Merely because the Criminal Procedure Bill was made
law and the Indian Penal Code (Amendment) Bill was passed by the
Rajya Sabha did not obligate the Lok Sabha to clear it. The Lok Sabha
could have its own views on the proposed Indian Penal Code amend-
F meats. It may agree with the executive's policy reflected in the Bill,
with or without modifications, or not at all. Merely because in the
subsequent instructions issued by the Jetter of July JO, 1979 and the
accompanying note (Annex. II) the Joint-Secretary had interlinked the
two Bills, the Lok Sabha was under no obligation to adopt the measure
as such representation could not operate as estoppel against it. Even
G the indirect attempt on the part of the High Court of Himachal
Pradesh in the ragging case to force the State Government to legislate,
State of Himachal Pradesh v. A Parent of a student of Medical College,
Simla, [1985] 3 SCC 169 was disapproved by this Court as a matter
falliqg,outside the functions and duties of the judiciary. It is, there-
fore; obvious that no question of ma/a fides on the part of the legisla-
H lure was involved in the enactment of one legislation and failure to
ASHOK KUMAR v. U.0.1. [AHMADI, J.] 873

enact another. There is no question of 'legislative fraud' or 'colourable
A
legislation' involved in the backdrop of the legislative history of
section 433A of the Code·as argued on behalf of the petitioner.

Counsel for the petitioner, however, tried to seek support from
the Privy Council decision in W.R. Moram v. Deputy Commissioner of
Taxation for N.S. W., [1940] AC 838 Wherein the question to be B
considered was whether the legislative scheme was a colourable one
forbidden by section 5(ii) of the Australian Constitution. There was no
attempt to disguise the scheme as it was fully disclosed. The Privy
.• Council, while holding that the scheme was not a colourable legisla-
tion, observed that 'where there is admittedly a scheme of proposed
legislation, it seems to be necessary when the 'pith and substance' or C
'scope and effect' of any one of the Acts is under consideration, to
treat them together and to see how they interact'. But that was a case
where the scheme was carried out through enactments passed by the
concerned legislatures. It is in that context that the above observations
must be read and understood. In the present case also if both the Bills
had become law, counsel would perhaps have been justified in D
demanding that in understanding or construing one legislation or the
other, the scheme common to both must be kept in view and be
permitted to'interact. But where the linkage does not exist on account
of the Indian Penal Code (Amendment) Bill not having become law
we are unable to appreciate how section 433A can be read down to
apply to only those classes of capital offences to which it would have E
applied had the said Bill been passed by the Lok Sabha in the terms in
which it was approved by the Rajya Sabha. The language of section
433A is clear and unambiguous and does not call for extrinsic aid for
its interpretation. To accept the counsel's submission to read down or
interpret section 433A of the Code with the aid of the changes pro-
posed by the Indian Penal Code (Amendment) Bill would tantamount F
to treating the provisions of the said Bill as forming part of the Indian
Penal Code which is clearly impermissible. To put such an interpreta-
tion with the aid of such extrinsic material would result in violence to
the plain language of section 433A of the Code. We are, therefore,
unable to accept even this second limb of the contention.
G
The law governing suspension, remission and commutation of
sentence is both statutory and constitutional. The stage for the exer-
cise of this power generally speaking is post-judicial, i.e., after the
judicial process has come to an end. The duty to judge and to award
the appropriate punishment to the guilty is a judicial function which
culminates_ by a judgment pronounced in accordance with law. After H
874 SUPREME COURT REPORTS [1991] 2 S.C.R.

A
the judical function thus ends the executive function of giving effect to
the judicial verdict commences. We first refer to the statutory provi-
sions. Chapter III of IPC deals with punishments. The punishments to
which the offenders can be liable are enumerated in section 53,
namely, (i) death (ii) imprisonment for life (iii) imprisonment of either
description, namely, rigorous or simple (iv) forfeiture of property and
B (v) fine. Section 54 empowers the appropriate government to com-
mute the punishment of death for any other punishment. Similarly
section 55 empowers the appropriate government to commute the
sentence of imprisonment for life for imprisonment of either descrip-
tion for a term not exceeding 14 years. Chapter XXXII of the Code, to
which section 433A was added, entitled 'Execution, Suspension,
Remission and Commutation of sentences' contains sections 432 and
c 433 which have relevance; the former confers power on the appro-
priate government to suspend the execution of an offender's sentence
or to remit the whole or any part of the punishment to which he has
been sentenced while the latter confers power on such Government to
commute (a) a sentence of death for any other punishment (b) a sen-
D tence of imprisonment for life, for imprisonment for a term not
exceeding 14 years or for fine (c) a sentence of rigorus imprisonment
for simple imprisonment or for fine and (d) a sentence of simple impri-
sonment for fine. It is in the context of the aforesaid provisions that we
must read section 433A which runs as under:

E "433A. Pestriction on powers of remission or commuta-
tion in certain cases-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
a sentence of death imposed on a person has been com-
F mutted 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."

The section begins with a non-obstante clause notwithstanding any-
thing contained in section 432 and proceeds to say that where a person
G is convicted for an offence for which death is one of the punishments
and has been visited with the lesser sentence of imprisonment for life
or where the punishment of an offender sentenced to death has been
commuted under section 433 into one of imprisonment for life, such
offender will not be released unless he has served at least 14 years of
imprisonment. The reason which impelled the legislature to insert this
H provision has been stated earlier. Therefore, one who could have been
ASHOK KUMAR v. U.0.1. {AHMADI, J.I 875

visited with the extreme punishment of death but on account of the
A
sentencing court's generosity was sentenced to the lesser punishment
of imprisonment for life and another who actually was sentenced to
-; death but on account of executive generosity his sentence was com-
mutted under section 433(a) for imprisonment for life have been
treated under section 433A as belonging to that class of prisoners who
do not deserve to be released unless they have completed 14 years of B
actual incarceration. Thus the effect of section 433A is to restrict the
exercise of power under sections 432 and 433 by the stipulation that
the power will not be so exercised as would enable the two categories
, of convicts referred to in section 433A to freedom before they have
completed 14 years of actual imprisonment. This is the legislative
policy which is clearly discernible from the plain language of section
433A of the Code. Such prisoners constitute a single class and have, c
therefore, been subjected to the uniform requirement of suffering
atleast 14 yeats of internment.

Counsel for the petitioner next submitted that after this court's
decision in Bhagirath's case permitting the benefit of set off under D
section 428 in respect of the detention period as an undertrial, the ratio
\ of the decision in Godse's case must be taken as impliedly disapproved.
We see no basis for this submission. In Godse's case the convict who
was sentenced to transportation for life had earned remission for 2963
days during his internment. He claimed that in view of section 57 read
with section 53A, !PC, the total period of his incarceration could not E
exceed 20 years which he had completed, inclusive of remission, and,
therefore, his continued detention was illegal. Section 57, !PC reads as
follows:
'
"57. Fractions of terms of punishment-In calculating
fractions of terms of punishment, imprisonment for !if~ F
shall be reckoned as equivalent to imprisonment for twenty
years."

The expression 'imprisonment for life' must be read in the context of
section 45, !PC. Under that provision the word 'life' denotes the life of
, a human being unless the contrary appears from the context. We have G
seen that the punishments are set out in section 53, imprisonment for
life being one of them. Read in the light of section 45 it would ordinar-
ily mean imprisonment for the full or complete span of life. Does
-, section 57 convey to the contrary? Dealing with this contention based
on the language of section 57, this Court observed in Godse's case at
pages 444-45. as under: H
876 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

"Section 57 of the Indian Penal Code has no real bearing
A
on the question raised before us. For calculating fractions
of terms of punishment the section provides that transpor-
tation for life shall be regarded as equivalent to imprison- \>
ment for twenty years. It does not say that transportation
for life shall be deemed to be transportation for twenty
B years for all purposes; nor does the amended section which
substitutes the words "imprisonment for life" for "trans- ""·~
portation for life" enable the drawing of any such all-
embracing fiction. A sentence of transportation for life or ~
imprisonment for life must prima facie be treated as trans-
portation or imprisonment for the whole of the remaining
'
period of the convicted person's natural life."
c
This interpretation of section 57 gets strengthened if we refer to
sections 65, 116, 119, 120 and 511, of the Indian Penal Code which fix
the term of imprsonment thereunder as a fraction of the maximum
fixed for the principal offence. It is for the purpose of working out this
D 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 frac-
tion of terms of punishment provided in sections such as those
enumerated above, it was imperative to lay down the equivalent term
E for life imprisonment.

The second contention urged before the Court in Godse's case
was based on the Bombay Rules governing the remission system
~
framed in virtue of the provisions contained in the Prisons Act, 1894.
This Court pointed out that the Prisons Act did not confer on any
F authority a power to commute or remit sentences. The Remission
Rules made thereunder had, therefore, to be confined to the scope and
ambit of that statute and could not be extended to other statutes.
Under' the Bombay Rules three types of remissions for good conduct
were allowed and for working them out transportation for life was
equated to 15 years of actual imprisonment. Dealing with Godse's plea
).
G for premature release on the strength of these rules this Court
observed at page 447 as under:

"The rules framed under the Prisons. Act enable such a
person to remission ordinary, special and State-and the
said remissions will be given credit towards his term of
H imprisonment. For the purpose of working out the remis-
ASHOK KUMAR v. U.0.1. (AHMADI, J.] 877

sions the sentence of transportation for life is ordinarily
A
equated with a definite period, but it is only for that
particular purpose and not for any other purpose. As the
sentence of transportation for life or its prison equivalent
the life imprisonment is one of indefinite duration, the
remissions so earned do not in practice help such a convict
as it is not possible to predicate the time of his death. That B
is why the rules provide for a procedure to enable an
appropriate Government to remit the sentence under
section 401 (now section 432) of the Code of Criminal Pro-
.•. cedur~ on a consideration of the relevant factors including
the period of remissions earned. The question of remission
is exclusively within province of the appropriate Govern-
ment; and in this case it is admitted that though the
appropriate Government made certain remissions under
section 401 of the Code of Criminal Procedure, it did not
remit the entire sentence."

On this line of reasoning the submission of counsel that if the Court D
were to take the view that transportation for life or imprisonment for
life enures till the last breath of the convict passes out, the entire
scheme of remissions framed under the Prisons Act or any like statute
and the whole exercise of crediting remissions to the account of the
convict would collapse, was spurned. This Court came to the conclu-
sion that the Remission Rules have a limited scope and in the case of a E
convict undergoing sentence of transportation for life or imprisonment
for life it acquires significance only if the sentence is commuted or
remitted, subject to section 433A of the Code or in exercise of con-
stitutional power under Articles 72/ 161.

In Marn Ram's case the Constitution Bench reaffirmed the ratio F
of Godse's case and held that the nature of a life sentence is incarcera-
tion until death; judicial sentence for imprisonment for life cannot be
in jeopardy merely because of long accomulation of remissions.
Release would follow only upon an order under section 401 of the
Criminal Procedure Code, 1898 by the appropriate Government or on
a clemency order in exercise of power under Articles 72/161 of the G
Constitution. At page 1220 the Constitution Bench expressed itself
thus:

"Ordinary where a sentence is for a definite term, the
calculus of remissions may benefit the prisoner to instant
release at that point where the substraction result is z~ro. i-1
878 SUPREME COURT REPORTS [1991] 2 S.C.R.

Here, we are concerned with life imprisonment and so we
A
come upon another concept bearing on the nature of
sentence which has been highlighted in Godse's case. 'r
Where the sentence is indeterminate or of uncertain dura-
lion, the result of substraction from an uncertain quantity is
still an uncertain quantity and release of the prisoner can-
B not follow except on some fiction of quantification of a
sentence of uncertain duration."

Referring to the facts of Godse's case and affirming the view that the
sentence of imprisonment for life enures upto the last breath of the
convict, this Court proceeded to state as under:
c "Since death was uncertain, deduction by way of remission
did not yield any tangible date for release and so the prayer
of Godse was refused. The nature of a life sentence is
incarceration until death, judicial sentence of imprison-
ment for life cannot be in jeopardy merely because of the
D long accumulation of remissions."

It is, therefore, clear from the aforesaid observations that unless the
sentence for life imprisonment is commuted or remitted as stated
earlier by the appropriate authority under the provisions of the rele-
vant law, a convict is bound in law to serve the entire life term in
E prison; the rules framed under the Prisons Act or like statute may
enable such a convict to earn remissions but such remissions will not
entitle him to release before he has completed 14 years of incarcera-
tion in view of section 433A of the Code unless of course power has
been exercised under Article 72/161 of the Constitution. '
F It will thus be seen from the ratio laid down in the aforesaid two
cases that where a person has been sentenced to imprisonment for life
the remissions earned by him during his internment in prison under the
relevant remission rules have a limited scope and must be confined to
the scope and ambit of the said rules and do not acquire significance
until the sentence is remitted under section 432, in which case the
remission would be subject to limitation of section 433A of the Code, '
G
or constitutional power has been exercised under Articles 72/161 of I-
the Constitution. In Bhagirath's case the question which the Constitu-
tion Bench was required to consider was whether a person sentenced
to imprisonment for life can claim the benefit of section 428 of the
Code which, inter alia provides for setting off the period of detention
H undergone by the accused as an undertrial against the sentence of
ASHOK KUMAR v. U.O.L !AHMADI, J.] 879

imprisonment ultimately awarded to him. Referring to section 57, A
IPC, the Constitution Bench reiterated the legal position as under:

"The provision contained in Section 57 that imprisonment
for life has to be reckoned as equivalent to imprisonment
for 20 years is for the purpose of calculating fractions of
terms of punishment. We cannot press that provision into B
service for a wider purpose."

These_.observations are consistent with the ratio laid down in Godse
and Maru Ram's cases. Coming next to the question of set off under
section 428 of the Code, this Court held:

"The question of setting off the period of detention under-
c
gone by an accused as an undertrial prisoner against the
sentence of life imporisonment can arise only if an order is
passed by the appropriate authority under section 432 or
section 433 of the Code. In the absence or such order,
passed generally or specially, and apart from the provi- D
sions, if any of the relevant Ja.il Manual, imprisonment for
life would mean, according to the rule in Gopal Vinayak
Godse, imprisonment for the remainder of life."

We fail to see any departure from the ratio of Godse's case; on the
contrary the afore-quoted passage clearly shows approval of that ratio E
and this becomes further clear from the final order passed by the Court
while allowing the appeal/writ petition. The Court directed that the
period of detention undergone by the two accused as undertrial priso-
ners would be set off against the sentence of life imprisonment
imposed upon them, subject to the provisions contained in section
433A and, 'provided that orders have been passed by the appropriate F
authority under section 433 of the Code of Criminal Procedure'. These
directions make it clear beyond any manner of doubt that just as in the
case of remissions so also in the case of set off the period of detention
as undertrial would enure to the benefit of the convict provided the
appropriate Government has chosen to pass an order under sections
432/433 of the Code. The ratio of Bhagirath's case, therefore, does not G
run counter to the ratio of this Court in the case of Godse or Maru
Ram.

Under the Constitutional Scheme the President is the Chief
Executive of the Union of India in whom the executive power of the
Union vests. Similarly, the Governor is the Chief Executive of the H
880 SUPREME COURT REPORTS (1991] 2 S.C.R.

concerned State and in him vests the executive power of that State.
A
Articles 72 and 161 confer the clemency power of pardon, etc., on the
President and the State Governors, respectively. Needless to say that
this constitutional power would override the statutory power con-
tained in sections 432 and 433 and the limitation of section 433A of the
Code as well as the power conferred by sections 54 and 55, IPC. No
B doubt, this power has to be exercised by the President/Governor on
the advice of his Council of Ministers. How this power can be exer-
cised consistently with Article 14 of the Constitution was one of the
questions which this Court was invited to decide in Maru Ram's case.
In order that there may not be allegations of arbitrary exercise of this
power this Court observed at pages 1243-44 as under:
c "The proper thing to do, if Government is to keep faith
with the founding fathers, is to make rules for its own
guidance in the exercise of the pardon power keeping, of-
course, a large residuary power to meet special situations
or sudden developments. This will exclude the vice of dis-
D crimination such as may arise where two persons have been
convicted and sentenced in the same case for the same
degree of guilt but one is released and the other refused,
for such irrelevant reasons as religion, caste, colour or
political loyalty."

E Till such rules are framed this Court thought that extant remission
rules framed under the Prisons Act or under any other similar legisla-
tion by the State Governments may provide effective guidelines of a
recommendatory nature helpful to the Government to release the pri- ~
soner by remitting the remaining term. It was, therefore, suggested
that the said rules and remission schemes be continued and benefit
F thereof be extended to all those who come within their purview. At
the same time the Court was aware that special cases may require
different considerations and 'the wide power of executive clemency
cannot be bound down even by self-created rules'. Summing up its
finding in paragraph 10 at page 1249, this Court observed:

G "We regard it as fair that until fresh rules are made in
keeping with the experience gathered, current social condi-
tions and accepted penological thinking-a desirable step, in
our view-the present remissions and release schemes may
usefully be taken as guidelines under Articles 72/ 161 and
orders for release passed. We cannot fault the Govern-
H ment, if in some intractably savage delinquents, section
ASHOK KUMAR v. U.0.1. [AHMADI, J.] 881

433A is itself treated as a guideline for exercise of Articles A
72/161. These observations of ours are recommendat9ry 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 wholesome
scheme."
B
It will be obvious from the above that the observations were purely
recommendatory in nature:

In Kehar Singh's case on the question of laying down guidelines
for the exercise of power under Article 72 of the Constitution this
Court observed in paragraph 16 as under:
c
"It seems to us that there is sufficient indication in the
terms of Article 72 and in the history of the power
enshrined in that provision as well as existing case-law, and
specific guidelines need not be spelled out. Indeed, it ma:'
not be possible to lay down any precise, clearly defined and D
sufficiently channelised guidelines, for we must remember
that the power under Article 72 is of the widest amplitude,
can contemplate a myriad kinds of and categories of cases
with facts and situations varying from case to case, in which
the merits and reasons of State may be profoundly assisted
by prevailing occasion and passing time: And it is of great E
significance that the function itself en joys high status in the
constitutional scheme."

These observations do indicate that the Constitution Bench which
decided Kehar Singh's case was of the view that the language of Article
72 itself provided sufficient guidelines for the exercise of power and F
having regard to its wide amplitude and the status of the function to be
discharged thereunder, it was perhaps unnecessary to spell out specific
guidelines since such guidelines may not be able to conceive of all
myraid kinds and categories of cases which may come up for the exer-
cise of such. power. No doubt in Maru Ram's case the Constitution
Bench did recommend the framing of guidelines for the exercise of G
power under Articles 72/161 of the Constitution. But that was a mere
recommendation and not a ratio decidendi having a binding effect on
the Constitution Bench which decided Kehar Singh's case. Therefore,
the observation made by the Constitution Bench in Kehar Singh's case
does not upturn any ratio laid down in Maru Ram's case. Nor has the
Bench in Kehar Singh's case said anything with regard to using the H
882 SUPREME COURT REPORTS I1991] 2 S.C.R.

A provisions of extent Remission Rules as guidelines for the exercise of
the clemency powers.

It is true that Articles 72/ 161 make use of two expressions 'remis-
sions' with regard to punishment and 'remit' in relation to sentence but
we do not think it proper to express any opinion as to the content and
B amplitude of these two expressions in the abstract in the absence of a
fact-situation. We, therefore, express no opinion on this question
formulated by the learned counsel for the petitioner.

Lastly the learned counsel for the petitioner raised a hypothetical
question whether it was permissible in law to grant conditional pre-
C mature release to a life convict even before completion of 14 years of
actual imprisonment, which release would tantamount to the prisoner
serving time for the purpose of section 433A of the Code? It is difficult
and indeed not advisable to answer such a hypothetical question with-
out being fully aware of the nature of conditions imposed for release.
We can do no better than quote the following observations made at
D page 1247 in Maru Ram's case:

" ....... the expression 'prison' and 'imprisonment' must
receive a wider connotation and include any place notified
as such for detention purposes. 'Stone-walls and iron bars
do not a prison-make': nor are 'stone walls and iron bars' a
E sine qua non to make a jail. Open jails are capital ins-
tances. Any life under the control of the State whether
within high-walled 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 no 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 section 433A.
G
Therefore, in each case, the question whether the grant of conditional
premature release answers the test laid down by this Court in the
afore-quoted passage, would depend on the nature of the conditions
imposed and the circumstances in which the order is passed and is to be
executed. No general observation can be made and we make none.
H
ASHOK KUMAR v. U.0.1. (AHMADI, J.] 883

In paragraph 10 of the memorandum of the Writ Petition., three A
reasons have been assigned for invoking this Court's jurisdiction under
· Article 32 of the Constitution, viz., (i) the questions involved in this

I -r petiiion will affect the right of a large body of life convicts seeking
premature release; (ii) this Court's judgment in Bhagirath's case de-
vialed from the ratio laid down in Godse's case and, therefore, the
entire law of remissions needed a review; and (iii) the High Court of
Rajasthan had refused to examine the merits of the various important
B

questions of law raised before it. It is on account of the fact that this
petition was in the nature of a representative petition touching the
-\ rights of a large number of convicts of the categories referred to in
sections 433A of the Code, that we have dealt with the various ques-
tions of law in extenso. Otherwise the petition could have been dis- c
posed of on the narrow ground that even though in view of sections
433A of the Code, premature release could not be ordered under
sections 432/433 of the Code read with the 1958 Rules until the
petitioner had completed 14 years of actual imprisonment, his release
could be considered in exercise of powers under Articles 72/ 161 of the
D
Constitution treating the 1958 Rules guidelines, if necessary.

' The relief claimed in the petition is two-fold, namely, (a) to grant
a mandamus to the appropriate Government for the premature release
of the petitioner by exercising constitutional power with the aid of
1958 Rules and (b) to declare the petitioner's continued detention as
illegal and void. The petitioner has not completed 14 years of actual E
incarceration and as such he cannot invoke sections 432 and 433 of the
Code. His continued detention is consistent with section 433A of the
Code and there is nothing on record to show tha.t it is otherwise illegal
' and void. The outcome of his clemency application under the constitu-
tion is not put in issue in the present proceedings if it has been rejected
and if the same is pending despite the directive of the High Court it F
would be open to the petitioner to approach the High Court for the
compliance of its order. Under the circumstance no mandamus can
issue. The writ petition must, therefore, fail. It is hereby dismissed.
Rule discharged.
;
G.N. Petition dismissed.