Imagine a punishment so harsh that it destroys all hope, leaving the convict to spend their remaining years behind the bars knowing that they will never be free again. On January 8, 2024 Supreme Court quashed the remission order of 11 convicts sentenced to life imprisonment in the Bilkis Bano Case, which was granted by the Gujarat Government. The Court held that the Gujarat Government was not the “appropriate authority” to grant remission in this case. The power of remission is conferred by the Constitution under Article 72 and 161 to the President and the Governor, respectively. At the same time, Section 432 of CrPC grants the Government the power to remit sentences. But in certain cases Court imposes a “special category of punishment” i.e. life imprisonment till death and life imprisonment for a fixed period without remission.
Also known as “the other death penalty” life imprisonment without remission is given as an alternate of “death penalty”. But is it sufficient to justify one type of punishment solely because it serves as a substitute for another? What are the criteria for deciding that who should be given life imprisonment in place of death sentence? What implications does this type of punishment have on human rights? The answers to these questions require deliberation and discussion on the reasoning behind “life imprisonment without remission” and its impact on the convicts, victims, their family and the society at large.
Need For A Special Category Of Punishment
The justification behind “life imprisonment without remission” was provided by the court in the case of Swamy Shraddhanand v. State of Karnataka. [1]The majority supported the “modified life sentence” stating that it is important to ensure that the punishment imposed is proportionate to the crime committed and in cases of heinous crimes awarding life imprisonment simpliciter which ultimately led to 14 years of imprisonment would not suffice. Another justification provided by the court was that remissions in case of life imprisonment were granted in an unruly manner.[2] Therefore, there was a need for a special category of punishment which is not only commensurate with the crime committed but also limits the power to remit in certain cases.
The court upheld the punishment of “life imprisonment without remission” in the case of Union of India v. Siharan.[3] The decision of the constitution bench in this case was split 3:2 with the minority having the view such a sentence would amount to creation of a new form of punishment but the majority rejected this view and held that neither the IPC nor any other law restricts the court from imposing imprisonment for whole life of a person or for a fixed period. But does the judiciary have the power to impose such a form of punishment?
Validity Of Life Imprisonment Without Remission
Formulation of penal laws is the domain of the legislature. The power to define offences and prescribe punishment solely rests with the legislature. The Government is vested with the power to remit and commute sentences under Section 432 and 433 of CrPC respectively. However, this power is restricted by Section 433A of CrPC which says that life imprisonment convicts are eligible for release only when they have completed minimum 14 years of imprisonment.
By imposing “life imprisonment without remission” the court has restricted the power to remit sentences even after completion of 14 years of imprisonment. This amounts to creation of a new form of punishment- imprisonment which can never be remitted or can only be remitted after a specific period- which is not the realm of the judiciary.
The judiciary opines that in certain cases remission should not be granted so leniently by the Government and the accused should be subjected to a minimum term of imprisonment. But this does not give the power to evolve a new form of punishment to the judiciary. Such action of the judiciary leads to Judicial Activism, diminishing the line separating the judiciary’s power to impose punishment and legislative’s power to formulate punishment.
Whenever the judiciary feels that the government is exercising its power to remit sentences in an unsound way, it can review such orders of the Government. “Life imprisonment without remission” can only become a norm when the legislature increases the minimum term of imprisonment under section 433A of CrPC or altogether creates a new form of punishment.
Supporting Arguments
The aim of punishment is to impose liability on the offender for his illegal actions and to prevent commission of further offences by him in order to protect the society. At the same time the purpose of punishment is to transform the behavior of the offender and to rehabilitate into society. There are various theories of punishment based on these objectives. The “modified life sentence” is based on the theories of seclusion, deterrence and retribution.
Seclusion refers to isolating the individual offender from rest of the society so that the person is not able to harm other members of the society. It is society’s recognition that some of the offenders cannot be deterred or rehabilitated.[4] The “modified life sentence” isolates the offenders of heinous crimes from rest of the society for the whole of their life thereby incapacitating them from committing further such crimes. Therefore, the society is protected from such offenders.
Theory of deterrence aims at prevention of future crime by frightening the defendant or the public.[5] When an offender of a certain crime is sentenced to imprisonment for the whole of its life, other members of the society are deterred from committing that crime. It sets an example for the public at large that convicts of heinous crimes will be severely punished.
The retributive approach of punishment is based on the belief that an offender deserves to receive suffering that is commensurate with the severity of crime committed.[6] It is based on the notion of “an eye for an eye”. Life imprisonment without remission ensures that the offenders get what they deserve by punishing them severely. By doing so, it satisfies public outrage and retributive feelings.[7]
Opposing Arguments
Today’s criminal justice system is based on the principles of rehabilitation- reforming the offender of law to enable him to reenter into society and act as a law abiding member of society.[8] “Whole life sentence” is based on the principles of deterrence and seclusion of the offender from rest of the society. But such a sentence is totally against the idea of rehabilitation as it denies the offender the opportunity to reform himself and return to the society. It is based on the assumption that the person can never be reformed and be a part of civilized society.[9]
No doubt “whole life sentence” is a highly torturous form of punishment as the prisoner is left with no hope of freedom and living a normal life. Its indeterminate nature puts the prisoner in a state where he constantly thinks about death- the day he will be released from prison.[10] In case of a death sentence the offender is at least aware of the day his misery would end but “whole life sentence” subjects the prisoner to lifelong torture. The family of the accused is also equally affected. The family gets a closure after the accused is hanged to death, but suffers mental pain and trauma if the accused is sentenced to imprisonment for life.
The constitutional bench in the Sriharan case clarified that “life imprisonment without remission” can only be awarded by the High Court and the Supreme Court and not by any subordinate court.[11] However, the court did not lay down any guiding principles regarding the imposition of such sentences. It is solely the court’s discretion to decide- when and to whom “life imprisonment without remission” should be granted. How does the judiciary distinguish between who should die and who should live but remain in prison for the rest of his life?
While talking about sentencing a person to imprisonment for the whole of his life, the condition of prisons in India can’t be ignored. Overcrowding, severe hygiene conditions, inadequate diet, harassment, torture, discrimination and inadequate medical assistance are just a few of the issues that India’s prison system faces. The prisoners also suffer from depression, anxiety, loneliness and various mental health problems which are rarely addressed by the authorities.
Incarcerating offenders for whole of their lives also create a burden on the state resources. The state has to bear the cost of providing basic amenities to the prisoners as well as expenses related to hiring and salaries to staff. Apart from these direct and identifiable costs of imprisonment there are other indirect costs which are described by UN Office on Drugs and Crime (UNODC) as “difficult to measure but have a long term impact”.[12] These include non- utilization of human resources, financial problems of prisoners’ families, rendering prisoners’ children homeless, unending suffering and shame brought by incarceration on prisoners’ families.
Conclusion
Life imprisonment without remission is a highly torturous form of punishment. It is important to consider the objectives sought to be achieved by such a form of punishment. The objectives of deterrence, seclusion and retribution may be achieved, but the objective of rehabilitation is totally disregarded by imposition of “whole life sentence”. The prisoners have no hope that they will ever leave the prison and therefore they have no incentive to reform themselves.
However, there are certain category of offenders who have committed offences which are so grave and heinous in nature that the whole society is terrorized. Also, these offenders show no sign of remorse and they may never be able to reform themselves. Isolating these individuals from the society becomes important to protect the whole community. Therefore, in such cases life imprisonment without remission can be granted to the offenders.
Claiming that life imprisonment without remission is an alternative of death penalty cannot be the sole justification for awarding it any case. The facts and circumstances of the case, nature and gravity of the offence committed, culpability of the offender along with other factors are to be analyzed in order to determine whether life imprisonment without remission would be an appropriate punishment in the case. The rule for such a form of punishment should be the same as that of Death penalty i.e. Life imprisonment without remission should be granted in “rarest of the rare cases”. Further, the court should devise guidelines to be followed whenever life imprisonment without remission is granted as a punishment in any case. This will prevent arbitrary application of such a form of punishment and ensure that principles of fairness, justice and equity are not compromised.
[1] (2008) 13 SCC 767
[2] Union Of India v. V. Sriharan (2016) 7 SCC 1
[3] (2016) 7 SCC 1
[4] Henderson, R. (2021, May 5). The purposes of punishment. Alaska Criminal Law 2022 Edition. https://pressbooks.pub/alaskacriminallaw2022/chapter/1-5-the-purposes-of-punishment/
[5] Supra note 4 at 2
[6] H A BEDAU, H. A. (1978). NCJRS Virtual Library. RETRIBUTION AND THE THEORY OF PUNISHMENT | Office of Justice Programs.
[7] Gumboh, E. (2016a). ‘the penalty of life imprisonment under International Criminal Law’, African human rights law journal, 11, pp. 75–92. The International Library of Essays on Capital Punishment, Volume 1, 231–248. https://doi.org/10.4324/9781315238937-19
[8] Bez, D. J. (n.d.). REFORMATIVE AND REHABILITATIVE TREATMENTS OF OFFENDERS: A GENERAL OVERVIEW. MSSV JOURNAL OF HUMANITIES AND SOCIAL SCIENCES, 2(1). https://doi.org/ISSN 2455-7706
[9] Dhanuka, M. (n.d.). A Life Without Hope – The “Other Death Penalty”? https://law.unimelb.edu.au/__data/assets/pdf_file/0010/3920923/Dhanuka_Madhurima.pdf
[10] Chadha, S., & Mor, S. (2018). Life Imprisonment Without Remission: A Replacement to Death Penalty. The law Brigade. https://thelawbrigade.com/wp-content/uploads/2019/05/Sayesha-Sidhanth.pdf
[11] Union Of India v. V. Sriharan (2016) 7 SCC 1
[12] Hirschberger, J., Ngwayi, F., Kpowell0209@att.net, & Liebenberg, A. (2020, August 5). “imprisonment is expensive” – breaking down the costs and impacts globally. Penal Reform International. https://www.penalreform.org/blog/imprisonment-is-expensive-breaking-down-the-costs-and/
Author: Rashi Thadani is a 3rd-Year Law student at Institute of Law, Nirma University
