JUDGMENT

KRISHNA IYER, J. (On behalf of himself and Chandrachud CJI. and Bhagwati 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 their learned counsel, carrying constitutional missiles in hand and demanding liberty beyond the bars. They challenge the vires of Section 433A of the Criminal Procedure Code (Procedure Code, for short) which compels caging of two classes of prisoners, at least for fourteen eternal internal 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. The Ballad of Reading Gaol.

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 laws 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 Gandhijis quasi-guru David Thoreau. Henry David Thoreau: Slavery in Massachusetts, 1854 :

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. 433-A.

2. Now, the concrete question and the back-up facts. All the petitioners belong to one or other of two categories. They are either sentenced by court to imprisonment for life in cases where the conviction is for offences carrying death penalty as a graver alternative or are persons whom the court has actually sentenced to death which has since been commuted by the appropriate Governments under Section 433 (a) of the Procedure Code to life imprisonment. The common factor binding together these two categories of lifers (if we may use this vogue word, for brevity) is obvious. The offences are so serious that the Penal Code has prescribed death as an alternative punishment although, in actual fact, judicial compassion or executive clemency has averted the lethal blow - but at a price, viz., prison tenancy for life.

3. Before the enactment of S. 433-A in 1978 these lifers were treated, in the matter of remissions and release from jail, like others sentenced to life terms for lesser offences which do not carry death penalty as an either/or possibility. There are around 40 offences which carry a maximum sentence of life imprisonment without the extreme penalty of death as an alternative. The rules of remission and release were common for all prisoners, and most States had rules under the Prisons Act, 1894 or some had separate Acts providing for shortening of sentences or variants thereof, which enabled the life-sentencee, regardless of the offence which cast him into the prison, to get his 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 right of that time, a parliamentary amendment to the Procedure Code and S. 433-A was sternly woven, with virtual consensus, into the punitive fabric obligating the actual detention in prison for full fourteen years as a mandatory minimum in the two classes of cases where the court could have punished the offender with death but did not, or where the court did punish the culprit with death but he survived through commutation to life imprisonment granted under S. 433 (a) of the Procedure Code. All the lifers lugged into these two categories - and th