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Society must strongly condemn crime through punishment, but brutal deterrence is fiendish folly and is a kind of crime by punishment. It frightens, never refines; it wounds never heals.

Krishna Iyer J. once remarked on most vague and imprecise punishment meander by judiciary i.e. life imprisonment without remission. Life imprisonment was embarked by the most landmark case of Swamy Shraddananda, where judiciary overstepped its ambit and enter the expanse of the legislature. To rationalize the above statement the bench embarked that there are some cases where the gravity of the offences is so odious and disgraceful that they fall just short of rarest of the rare therefore, they cannot be given death penalty nor life imprisonment with possibility to release after 14 years and that's why “special category of sentence" inaugurated.

Hence, this bench substituted the death penalty by the punishment of life imprisonment without the scope of remission for the sake of Justice. This was further solidified in Union of India V. Sriharan. But this punishment can be seen in contravention of various fundamental Laws and logical arguments. Firstly, it violates the basic principle of punishment i.e. Reformation, secondly it's a violation of Article 19 and 21 of prisoners and lastly, the serious disruption is done to the separation of powers. Therefore, it is essential to take into consideration the above contention by pieces.


The four most cardinal principle of punishment is deterrence, retribution, rehabilitation and restoration. The person doesn't relinquish his right and dignity merely because he has committed a crime, he has right and dignity which it ought to be protected by all the three organs. The punishment of life imprisonment excluding remission meanders by the judiciary falls foul of rehabilitation and restoration principle of punishment. This punishment leaves no reason for the prisoner to get reform as he is acquainted with the fact that how much he may fight tooth and nail, he has to abide within the four walls of the prison for rest of his life. So, in simplified terms, it means whether it be tightening the noose or sentencing life imprisonment without remission, both are interchangeable as in both cases prisoner gets no prospect to get reformed.

The Supreme Court itself opined in the case of Soman v. State of Kerala while noting a number of factors ought to be taken into consideration while sentencing; proportionality, deterrence and rehabilitation as a rudimentary principle. Not only domestic Laws support rehabilitation but International instrument like the International Covenant on Civil and Political Rights and UN standard minimum rule for treatment of prisoners (Prisoners Rule) contemplate the momentousness of the reformative process. Doing away with the executive process of remission is a serious disruption to the penological practice. In Ram Missar v. State of Bihar, it was observed: "Modern criminal jurisprudence recognizes that no one is born criminal and that a good many crimes are the result of social-economical mitres."

This conviction of Courts nullifies the image of provisions as progressive and reformative for a better society. Also, it is contended that in the case provided, most of the accused are students and such harsh punishment violates the reformative theory.


Justice Posner while emphasizing on the treatment of the prisoner remarked that while there are two ways to look upon the inmates "One is to look at them as a separate species; as a type of vermin, devoid of any humanity”, but he advised the alternate approach that “We must not exaggerate the distance between us, the lawful ones, the respectable ones, and the prison and jail population; for such exaggerations will make it too easy for us to deny that population the rudiments of human consideration.” Article 21 abides every prisoner the right to live with human dignity. As pointed out in Maru ram case, the Supreme Court observed that "the remission is not liberty which one can claim but here prisoner is not claiming the right to get remission instead he is claiming the right to be considered for remission.” Hence, taking this right from a person strikes at the very root of Article 21.

Remission power provided by Sec 432 of the Cr.P.C. takes into consideration various factors and not all lifers are remitted after 14 years. These factors include the nature, behaviour and development within Prisoners as scripted in respective Jail Manual. Also, Sec 432 of Cr.P.C. furnishes various procedure which is ought to be followed and subsection 2 even include approval from the judiciary. These factors need the eternal glance, which can only be done by the executive and not by the judiciary. Therefore, the misconception that all lifers are only for 14 years of imprisonment is vacuous and false.

The ECHR in Vinter v. United Kingdom came to find that Law providing for a whole life sentence without the prospect of release and review fall fouls to Article 3 of ECHR. Article 3 states that “No one shall be subjected to torture and inhumane or degrading treatment or punishment." It can, therefore, be concluded that ECHR sees life imprisonment without remission as inhumane and degrading treatment.

Article 21 also provides to have a procedure established by law. But the said sentence has no set procedure.


The ultimate discernment on this issue is V. Sriharan. But this case has left a lot of haziness and subjectivity on the issue as in the case itself the bench provided "this issue needs further discussion", but till now it is left vacuumed. The bench has paradox statement as in the later phases of the judgement, the bench stated “neither we have formed a new punishment nor infringed the power of legislature but on the Kickstart of the judgement they inaugurated "Special category of the sentence."

It is further contended that the judiciary has no fixed criteria or provision under which it put the particular case under the phrase “special category” while executing the convicts. This power is neither cross-checked by any other organs and neither by any provisions. This power of the judiciary is arbitrary and undefined. The judiciary has not defined the phrase “special category” in any precedent judgements. There is no classification provided by the judiciary is executing such punishment.

In Haru Ghosh v. State of West Bengal, the Court provided for 35 years and 25 years of imprisonment without remission. The punishment can be said to be arbitrarily decided as nowhere in the judgments judges give the reason why the specific time period they have provided is necessary and how in fact the time of 35 years in or 25 years case is going to serve as the time specifically needed to reform such criminals. This sentencing is arbitrary decided and therefore fall fouls to Article 14.

Also, as mentioned in the Golaknath case, Subba Rao, C.J. opined that “the Constitution brings into existence three major instrument of power, namely the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective power without overstepping their limit. They should function with the sphere allotted to them.” By sentencing such punishment the bench has overstepped its ambit to make the new punishment, which is incorporated into the legislature.

Therefore, the punishment of life imprisonment without remission is full of subjectivity and vagueness. The said punishment has no set procedure and is arbitrarily used. The punishment also violates Article 14 and 21 of the Constitution of India. It also violates the principle of reformation. The subsequent uses of this sentencing would lead to injustice to the prisoner and his human dignity.

Navin Kumar Jaggi

Mohit Mishra

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