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Maru Ram v. Union of India (1981) 1 SCC 107
by Dr N. Balu* and Dr R. Prakash**
Cite as : (2002) 6 SCC (Jour) 13
In Maru Ram v. Union of India1 the constitutional validity of Section 433-A of the Criminal Procedure Code, 1973 was upheld. The petitioners attacked the provision alleging infraction of Articles 14, 20(1), 72 and 161 of the Constitution of India. It was inducted into the Code by an amendment in 1978. It lays down as follows:
"433-A. Restriction on powers of remission or commutation 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 commuted 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."
A reading of the provision shows that under two circumstances a convict has to actually undergo incarceration for fourteen years. They are:
(i) when life imprisonment is imposed on a person for an offence for which death sentence is an alternate penalty, and
(ii) when death sentence is imposed by the court on a person and commuted under Section 433(a) to imprisonment for life.
The petitioners in Maru Ram case1 contended, inter alia that Section 433-A violated Article 20(1)2 The Court, in order to save the section from constitutional infirmity held that the section will have only prospective operation i.e. only from 18-12-1978, the date on which the section came into force. In this connection, Krishna Iyer, J. (for himself, Chandrachud, C.J. and Bhagwati, J.) speaking for the majority made the following observations3: (SCC p. 154, para 72)
"72. (7) We declare that Section 433-A, in both its limbs (i.e. both types of life imprisonment specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years' actual imprisonment will not operate against those whose cases were decided by the trial court before 18-12-1978 when Section 433-A came into force. All 'lifers' whose conviction by the court of first instance was entered prior to that date are entitled to consideration by Government for release on the strength of earned remissions although a release can take place only if Government makes an order to that effect. To this extent the battle of the tenses is won by the prisoners. It follows, by the same logic, that short-sentencing legislations, if any, will entitle a prisoner to claim release thereunder if his conviction by the court of first instance was before Section 433-A was brought into effect."
(emphasis supplied)
The words italicized above convey that those persons whose cases were decided after 18-12-1978, though they had committed the offence before 18-12-1978 will be subject to the rigours of Section 433-A. It is submitted with respect that there is inconsistency between the first sentence of the observations extracted above and the italicized words therein. The first sentence in the above-extracted observations declares that Section 433-A will have prospective effect. After giving the section prospective effect, the second sentence in the above observations makes the decision of the trial court as the determining factor for giving prospective effect. It is submitted with respect that by fixing the date of the decision of the trial court for the application of Section 433-A, the Court committed an inadvertent error. The meaning of prospective operation is that the section cannot apply to those persons who committed the offence before 18-12-1978. But by holding that the section will not operate against those whose cases were decided by the trial court before 18-12-1978, the Court permitted the application of Section 433-A against those who would have committed the offence before 18-12-1978 but the decision of the trial court is after 18-12-1978. The following example may make clear the inadvertent error committed by the Court.
Suppose, A was charged for the offence of committing a murder on 1-4-1977 and his case was decided by the trial court before 18-12-1978, say on 17-12-1978 and B was charged for the offence of committing a murder on 10-1-1977 and his case was decided by the trial court after 18-12-1978 say on 20-12-1978. Now if we apply the law laid down by the Apex Court in Maru Ram case1 to this situation, A will get the benefit of short sentencing procedures though he committed the offence after B committed the same offence. On the contrary, B will not get the benefit of remission though he committed the offence prior in point of time to A. It is to be noted that both A and B committed the offence before 18-12-1978 on which date Section 433-A came into force. In the above illustration, B, though similarly circumstanced like that of A, could not get the benefit for no fault of his as to what A got.
In Ashok Kumar v. Union of India4 the Supreme Court, following the decision in Maru Ram case1, dismissed the writ petition of the petitioner who committed the offence before 18-12-1978 but was convicted on 20-12-1978 i.e. two days after Section 433-A came into force. In this case no argument was advanced with regard to the inadvertent error committed by the Hon'ble Supreme Court in Maru Ram case1. Therefore, this aspect of the decision in Maru Ram case1 needs immediate reconsideration to save convicts throughout the country who would have committed the offence before 18-12-1978 but whose cases would have been decided by the trial court after the said date.
The Supreme Court while upholding the vires of Section 433-A in Maru Ram case1 held that Section 433-A cannot fetter the constitutional power of the President (Union Council of Ministers) and the Governor of a State (Council of Ministers of a State) under Articles 72 and 161 respectively to grant full pardon even before the expiry of the statutory period prescribed under Section 433-A. It was held that Section 433-A restricts the appropriate government to exercise its powers under Section 432 CrPC but cannot restrict the constitutional power under Articles 72 and 161. Exercise of power under Section 433 CrPC on the one hand and Articles 72 and 161 on the other is a distinction without a difference. When the action can be traced to Section 433 CrPC the approval of the President or the Governor, as the case may be, is not needed whereas if the power is traced to Article 72 or 161, the President's or the Governor's sanction is necessary. But here also the President and the Governor are bound by the advice tendered by the Council of Ministers. Therefore the restriction contained in Section 433-A may become an exercise in futility when a resort is made to the provisions contained in the fundamental law of the land.
It will be apposite to quote the concurring judgment of Fazal Ali, J. in Maru Ram1:
"94. Doubtless, the President of India under Article 72 and the State Government under Article 161 have absolute and unfettered powers to grant pardon, reprieves, remissions, etc. This power can neither be altered, modified not interfered with by any statutory provision. But, the fact remains that higher the power, the more cautious would be its exercise. This is particularly so because the present enactment has been passed by Parliament on being sponsored by the Central Government itself. It is, therefore, manifest that while exercising the powers under the aforesaid articles of the Constitution neither the President, who acts on the advice of the Council of Ministers, nor the State Government is likely to overlook the object, spirit and philosophy of Section 433-A so as to create a conflict between the legislative intent and the executive power. It cannot be doubted as a proposition of law that where a power is vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all the aspects of the matter."
The decision in Maru Ram case1 may also have an impact on Article 60 of the Constitution. It is trite law after the seven-Judge Bench decision in Samsher Singh v. State of Punjab6 that the Governor is a shorthand expression for the State Government and the President is an abbreviation for the Central Government (vide Maru Ram v. Union of India7). As a result of the decision of the Constitution Bench in Maru Ram case1, a convict may be pardoned by the President under Article 72 even if his case squarely falls under Section 433-A. At this juncture, a glance at Article 60 of the Constitution becomes necessary.
"60. Oath or affirmation by the President.—Every President and every person acting as President or discharging the functions of the President shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of India or, in his absence, the seniormost Judge of the Supreme Court available, an oath or affirmation in the following form, that is to say—
| 'I, A.B., do |
swear in the name of God
solemnly affirm |
that I will faithfully execute |
the office of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India.' "
If the President of India is advised by the Union Council of Ministers to pardon a person whose case falls under Section 433-A the President cannot refuse to give his approval on the ground that Section 433-A prohibits such a course. If he refuses he may be committing a breach of Article 74(1) which says that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall in the exercise of his function act in accordance with such advice. Therefore refusal to follow the advice (subject of course with the power to send back one for reconsideration) will tantamount to a direct breach of Article 74 which is a violation of the Constitution, the ground for impeachment of the President.
If the President adopts the other possible alternative of giving his approval in the similar set of circumstances stated above, then also there is a possibility of committing a violation of the Constitution. If he approves the advice, he will be acting within the precincts of Article 74 but a defiant disobedience of Article 60. If the President gives his approval of pardon for a person whose case falls under Section 433-A, it will amount to breach of Article 60. He takes oath not only to preserve, protect and defend the Constitution but also ordinary laws of the land. Thus a breach of Section 433-A results in breach of Article 60 which in turn results in violation of the Constitution which is the ground provided in the Constitution to impeach the President. Therefore, whatever course adopted by the President may put him in a tight situation. It is submitted that this aspect of the matter escaped attention of the Hon'ble Supreme Court in Maru Ram case1.
- (1981) 1 SCC 107
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- "20. Protection in respect of conviction for offences.-(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence."
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- Supra fn 1 at p. 154
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- (1991) 3 SCC 498
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- Supra fn 1 at p. 162, para 94
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- (1974) 2 SCC 831
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- Supra fn 1 at pp. 146, 147
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