Right To Seek Remission Applicable Even When Convict Sentenced To Imprisonment For Remainder Of Life : Supreme Court
The Supreme Court observed that the right to seek remission is applicable even when a person is convicted under provisions such as Section 376DA or Section 376DB of the Indian Penal Code, which prescribe the mandatory punishment of life imprisonment for the remainder of that person's natural life.
Observing that the right to seek remission is both a constitutional right and a statutory right, the Court refused to adjudicate upon the validity of Section 376DA IPC that penalises gangrape of a minor below 16 years with a life sentence for the remainder of life.
The bench of Justice BV Nagarathna and Justice R Mahadevan was hearing a writ petition challenging the validity of Section 376DA of the Indian Penal Code for prescribing a mandatory life sentence for the remainder of the convict's life.
Section 376DA prescribes the punishment for gangrape of a girl aged below 16 years. It reads as below:
"Where a woman under sixteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine..."
Section 376DB deals with the offence of gangrape of a girl aged below 12 years.
The petitioner did not appear. The Court heard Sr Advocate Siddharth Agarwal for National Law University, Delhi, Project 39A, intervenor in the case, who contended that the use of the expression “shall” would indicate that the only punishment which a Sessions Court can impose is imprisonment for life which shall mean imprisonment for the remainder of that persons' natural life and, therefore, there is no alternative punishment which a Sessions Court can impose.
He stressed that since the law uses the word “shall” along with “imprisonment for life for the remainder of that person's life”, a Sessions Court has no choice but to award this sentence, leaving no alternative punishment. Accordingly, this was against the principles of sentencing policy, was arbitrary, and ignored mitigating factors, as it prevents the court from imposing any lesser punishment along with a fine.
Attorney General R Venkatramani and ASG Aishwarya Bhati, representing the Union, supported the impugned provision and submitted that the intention of the parliament for imposing a stricter punishment was due to the egregious nature and seriousness of the crime.
The bench noted the submission of the Union that " It is the policy of the Parliament in selecting such a sentence having regard to the gravity and seriousness of the offence. Therefore, the writ petitioner as well as the impleading applicant cannot have any grievance with regard to the prescription of such a sentence by the Parliament."
The Court observed that even with the present provision in place, a convict would have several legal options to obtain remission.
While the convict has the right to challenge his conviction in appeal before the High Court and then before the Supreme Court, the issue of remission is also taken care of.
The Court note the following legal remedies available in law :
"Even if such a punishment is imposed on an accused, he has the right of remission in accordance with Article 72 and/or Article 161 of the Constitution of India, as the case may be, by making an application for remission before the Hon'ble President of India or before the Governor of a State. Those are constitutional remedies."
The bench further observed, "In addition, such an accused has also a statutory remedy to seek remission of his sentence by making an application within the statutory scheme of Section 432 and connected provisions of the Code of Criminal Procedure, 1973 (CrPC) subject to Section 433A CRPC and other equivalent provisions of Section 473 and Section 475 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, “BNSS”).
"Therefore, the right to seek remission is not only a constitutional right but also a statutory right and each State has its own policy of remission, which is a reduction in the sentence, even in cases of death penalty or life imprisonment and is applicable even when the sentence is imposed under Section 376DA IPC or for that matter 376DB IPC," the Court observed.
"Therefore, even in a case where a punishment is awarded under Section 376DA or Section 376DB IPC to the effect that the accused shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life would not take away his right to seek remission in accordance with the Constitution or the statutory scheme as under the CrPC or BNSS and the applicable policy of remission of each State," the Court said.
The Court also left open the question of law whether it was proper to prescribe a mandatory sentence, without giving discretion.
"Insofar as the contention of learned senior counsel for the petitioner on the aspect that the prescription of a single sentence under Section 376DA IPC without any alternative sentence being provided and the use of the expression “shall” makes it mandatory on the Sessions Court is concerned, we leave the said question of law open to be agitated in any appropriate case."
It added, "We say so for the reason that in a vacuum, in the absence of facts of a case, in a Public Interest Litigation, we do not wish to adjudicate on the validity of the said provision"
The new criminal law, Bharatiya Nyaya Sanhita, also has retained Sections 376DA and 376DB as Section 70(2).
Case Details : CASE TITLE: MAHENDRA VISHWANATH KAWCHALE Versus UNION OF INDIA W.P.(Crl.) No. 314/2022 PIL
Citation : 2025 LiveLaw (SC) 897