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“The object of punishment is threefold: for just retribution: for the protection of society: for the reformation of the offender.” – Tryon Edwards

This was perhaps the reason that the Bench of Hon’ble High Court of Delhi, Comprising Justice Siddharth Mridul and Dr. Justice Sangita Dhingra Sehgal, on December 21, 2018, ordered the immediate release of Sushil Sharma, the accused of infamous ‘Tandoor Case’, setting aside the Sentence Review Board’s rejection of his application. Sharma had been lodged in Tihar Jail for the last 29 years with remission for killing his wife Naina Sahni in 1995, after objecting to her relationship with a male friend.

The court was hearing a habeas corpus plea filed by Sharma, wherein he stated that he has already served 29 years in jail with remission. His counsel N. Hariharan contended that Sharma had already reformed himself in the past decades. He learns and teaches computer and “nothing is there in which premature release can’t be granted.”

The court observed that “life and liberty of an individual are of paramount consideration” and asked the Delhi Government how someone can be kept in custody “indefinitely”. The Bench further said, “we are of the considered view that the continued incarceration of the petitioner (Sharma) does not admit for lawful sanction. We are therefore directing that he be set at liberty forthwith.” The court also said that the incarceration of a convicted person, such as Sharma, does not result in the suspension of all his fundamental rights and he is not deluded of the rights enshrined under the Indian Constitution. The court also observed that Sharma had elderly parents in need of succour, attention and support from him in their twilight years.

In a similar case, the High Court of Delhi on January 21, 2019, asked the Sentence Review Board (SRB) to take a call of Jessica Lal murder convict Siddharth Vashishta alias Manu Sharma’s request for his premature release. Justice Najmi Waziri’s direction came after Sharma’s counsel, Senior Advocate Salman Khurshid told the court that his client had undergone 21 years of imprisonment, including remission, and so was eligible for premature release.

Talking to Lawyers Update, Professor (Dr) Ranbir Singh, Vice-Chancellor, National Law University, Delhi, appreciated the action taken by Hon’ble High Court of Delhi in Sushil Sharma’s release case and said, “we must have a meaningful and balanced system of periodical review of judicially imposed life sentences. That is the scheme provided in the Criminal Procedure Code(Cr PC), because it is the Executive who through its prison administration is best suited to perform this task. The fact that government misuse this power or do not exercise it with sufficient diligence, cannot be the reason to do away with the power entirely. Even Shushil Sharma in the Tandoor case had the right to have his life imprisonment periodically reviewed by the Executive and the High Court was right in asking the details of what has emerged that justified keeping Sushil Sharma in prison so long, especially when the Sentence Review Board (SRB) had concluded that he is no longer a threat to society. The brutality of the crime alone cannot justify keeping a person in prison forever.

Disagreeing to Professor Ranbir Singh, noted Advocate, Navin Jaggi and his associate Vaibhav Mani Tripathi said, “The judgement of the High Court of Delhi in Tandoor Case is a contradiction of the rudimentary principle of contemporary jurisprudence which implies that the life and liberty of both the individuals, i.e, the victim and the convict be of the paramount consideration. Whereas, in the instant case the Learned Delhi High Court has taken cognizance of the life and liberty of the convict only.

Criticizing the view of Advocate Navin Jaggi, another Advocate Jamal Usmani said, “The Learned Court was convinced that the convict has been punished proportionately and that during the long period of incarceration the convict (Sharma) has reformed himself, the fact of which had been corroborated by the jail authorities and the probation officer. Since there was no danger to the society from the convict and the convict had already served sentence for 29 years, the Hon’ble Court has rightly acted in terms of reformative justice.

Today, a debate is fast surfacing on international canvas that indefinite, life-long imprisonment infringes the right to life of the convict and it denies the possibility of rehabilitation. Many jurists feel that life-long imprisonment is another version of the death penalty where a prisoner is left to wait for death to set him free.

In many countries, the death sentence has been abolished, and therefore the death penalty has been converted to life imprisonment, being the most severe sentence available to sentencing courts in cases of murder. In India, the Constitution Bench of the Supreme Court in Bachan Singh vs. State of Punjab [1980(2) SCC 684] observed that for the person convicted of murder, life imprisonment is a rule and death sentence is an exception. The death sentence shall be awarded in rarest of the rare cases.

In the judgement of the case of Swamy Shraddhananda (2) vs. State of Karnataka, [JT2008(8) SC27], while confirming the conviction for offence under Section 302 of IPC, the apex court substituted the death sentence by imposing for life with a specific direction that he shall not be released from the prison till the rest of his life in para 92.

A Bench of the Supreme Court comprising Justices K.S. Radhakrishnan and Madan B. Lokur ruled, “A convict undergoing life imprisonment is expected to remain in custody for an indeterminate period till the end of his life, subject to any remission granted by the appropriate government.” The Bench, however, clarified that under remission the appropriate government cannot reduce the period of the sentence less than 14 years for a life convict, as per Section 433-A of the Cr P.C

The apex court also observed that its Constitution Bench’s landmark judgement of 1980, in Bachan Singh vs. State of Punjab, on criterion of imposing death penalty needs a “fresh look”, as there has been “no uniformity” in following its principles as what constitutes “the rarest of rare”. As such, awarding death sentence has become “judge-centric” rather than “principled sentencing”. This court has not endorsed the approach of aggravating and mitigating circumstances in Bachan Singh(case). However, this approach has been adopted in several decisions.

The Bench further said, “It appears to us there is a misconception that a prisoner serving a life sentence has an indefeasible right to be released on completion of either fourteen years or twenty years imprisonment. The prisoner has no such right.”

The apex court order also seeks to put an end to the practice of en-masse release of the convicts by various governments on “festive” occasions and said each release requires case-by-case basis scrutiny.

The Penal Reform International (PRI) quoting Prof Dirk and Dr Catherine says, “Today, an estimated half a million people are serving the life imprisonment. Life imprisonment exists in 183 out of 216 countries and territories and between the years 2000 and 2014, there was an increase of almost 84% in the number of those serving formal life sentences worldwide.”

According to Advocate Jamal Usmani, there is so much confusion, ambiquity and absence of uniform procedure or a fixed criterion pertaining to deciding the capital sentence; whether it should be death or life imprisonment, then there is no fixed minimum and maximum period of the life sentence.

The opinions of judges from below courts to High Court to Supreme Court differ to a large extent on the similar facts of the same case. The opinions of the judges of the same Bench of the Supreme Court often run in absolutely diverse and contrasting directions. Such a confusing situation gives room to uncertainity impacting upon the life of the convict, who too is covered under certain human rights.

Swami Shradhhanand @Murali Manohar Mishra’s case was first heard by a bench of two judges. Both the judges unanimously upheld the appellant’s conviction but they were unable to agree to the punishment meted out to the appellant. Justice S. B. Sinha felt that in the facts and circumstances of the case the punishment of life imprisonment, rather than death would serve the ends of justice. He, however, made it clear that the appellant would not be released from prison until the end of his life. Whereas, Justice Markandey Katju, on the other hand, took the view that the appellant deserved nothing but death.

On the contrary, Advocate Yawar Qazalbash, a renowned Advocate of almost 60 years of practice in criminal law, feels that in an ever-changing society, the concept of punitive reactions for law-breaking has changed considerably from pre-literate to modern era. Earlier the death penalty was a common punishment, which has been abolished in most of the countries, and has been converted to life imprisonment.

In cases where the courts find that to keep the society bereft of such people, who are psychopaths or hardened perpetrators of crime, and who are the danger for the society, can not be reformed, the courts have no option but to award life-long imprisonment. As an example, cases of Asaram and Ram Rahim may be cited.

Differing to Advocates Jaggi and Qazalbash, Professor(Dr.) Ranbir Singh, Vice Chancellor, NLU, Delhi, said, “The judicial sentence of ‘life imprisonment’ means that unless the appropriate government intervenes with its remission powers, the prisoner will spend the rest of his/her life in prison. Of course, there have been many concerns with the manner in which governments have exercised their remission powers under the Cr PC and have received intense judicial scrutiny in Shradhananda’s case and subsequently by a Constitution Bench in Sriharan case. The Supreme Court has now laid down the law that High Courts and Supreme Court can now restrict remission powers of the appropriate government under Cr PC and give sentences where the government can not grant any remission. In effect, it can give sentences like 20 years or 40 years without remission and even say that the person will spend the rest of his/her natural life in prison without remission.

It is this kind of punishment – very long terms of imprisonment or rest of natural life without remission that is of Constitutional concern. “Asking a prisoner to live in prison with absolute certainty that they will not be released violates human dignity. It is an infringement of such prisoner’s fundamental rights. And the precise cause of that violation is that you take away any hope of release. The judgement in Sriharan takes away any opportunity for the convict to be reviewed and assessed about his suitability for release.”

Professor Ranbir Singh admitted that life-long incarceration by keeping the prisoner behind the walls of a gaol to wait for death to set him free is another version of the death penalty. “It is to kill someone.”

Professor Ranbir Singh referring the issue that indefinite sentence frustrates the very purpose of reformative justice said, “The judgement of the European Court of Human Rights in Vinter vs. United Kingdom (2013) is very instructive in understanding human rights issues involved in life imprisonment without the possibility of review. Such a punishment is based on the faulty assumption that we can have purely retributive punishments and this goes against the numerous pronouncements by our courts that reformation is also an integral part of the punishment. The sort of punishment recognised in Sriharan takes away the element of reformation from our criminal justice system. Societies must evolve towards more reformatory approaches to punishment and not regress into more and more retribution.

When asked whether the ruling of the apex court on life-long imprisonment requires review by a larger bench to take a more holistic approach in this regard? Professor replied, “The dissent by Justice U U Lalit in Sriharan is a very strong response to such a punishment where the courts decide that a person can be kept in prison for the rest of his/her life without any sort of review. Not only is the judiciary creating a new punishment (as recognised by Justice Lalit), it is also a violation of separation of powers and very fundamental human rights.”

Professor Ranbir Singh further said, “It is for the legislature to provide punishments and for judges to apply it in individual cases. Of course, punishments will provide a range and judges decide the exact term according to facts and circumstances in each case. But I do believe (and agree with Justice Lalit in that regard) that the court was creating a new punishment in Sriharan – and that is a task that squarely belongs in the realm of the legislature.”

Penal Reform International (PRI) in its project Life Imprisonment: A Practice in Desperate Need of Reform, writes, “As many as 64 countries impose life imprisonment without parole, inflicting cruel, inhuman and degrading punishment and denying prisoners the fundamental right to hope.”

“Life in prison is a slow, torturous death. Maybe it would have been better if they had just given me the electric chair and ended my life instead of a life sentence, letting me rot away in jail. It serves no purpose. It becomes a burden on everybody.” – Testimonial from a prisoner serving life without parole. (PRI)

Douglas Vinter, a British lifer was given a whole life sentence after killing a fellow worker and his wife. He knows he has done terrible things and understands that he should serve a long time in prison. What he doesn’t accept is being locked-up till he dies. “I am young and fit and I have maybe got another 50 years of life as a category A prisoner left. Torture every single day. I actually pray for a heart attack or cancer,” he wrote in a letter to The Guardian.

Vinter and other convicted murderers Jeremy Bamber and Peter Moore filed an appeal against the decision to uphold their whole-life sentences at the Federation Court of Human Rights. His lawyers had argued that Article 10 (3) of the International Covenant on Civil and Political Rights, 1966 (ICC PR) states that the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” –(Simon & Eric).

“The whole-life tariff is against all principles of international law as it denies any possibility of rehabilitation. The real problem lies in removing all hope at the time the sentence is imposed”, said Bhatt Murphy’s Simon Creighton, the solicitor representing the prisoners at the European court.

“The UN Standard Minimum Rules for the Treatment of Prisoners (The Nelson Mandela Rules) state that rehabilitation to reduce recidivism is a key purpose of imprisonment. Life imprisonment often goes directly against this aim, by removing the prospect of rehabilitation and thereby undermining the right to human dignity.”

In S vs. Tcoeib 1996(I) SACR 390(NmS), Chief Justice Mohamed found that a decision to impose the sentence of life imprisonment must be made on the basis that it was not a sentence that left the offender without the prospect of release. Chief Justice Mohamed explained that life imprisonment cannot be justified if it effectively amounts to a sentence which locks the gates of the prison irreversibly on the offender without any prospect of lawful escape from that condition…”

Accordingto Samuel Levy, Judge, Namibia High Court, “The concept of life imprisonment destroys human dignity, reducing a prisoner to count the number of years behind the walls of a gaol waiting only for death to set him free. The fact that he may be released on parole is no answer.”

Levy in S vs. Tjijo further says, “When a term of years is imposed, the prisoner looks forward to the expiry of that term when he shall walk out of gaol a free person… Life imprisonment robs the prisoner of this hope. Take away his hope and you take away his dignity and all desire he may have to continue living… Even though he may be out of gaol on parole, he is conscious of his life sentence and conscious of the fact that his… debt to society can never be paid… life imprisonment makes a mockery of the reformative end of punishment.”

There is a general movement away from such sentences internationally. It is disappointing that we are not prepared to take a more holistic and enlightened approach to the use of imprisonment.

This bleak picture demands the intervention of the international community. The UN last issued a report on life imprisonment in 1994. A review of the application, implementation and consequences of the practice is long overdue. One can look forward with hope towards 14th United Nations Congress on Crime Prevention and Criminal Justice in 2020, where the international community can examine the ill-effects of life-long imprisonment and violations of human rights of those prisoners.

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