The article discusses the constitutional challenges underwent by countries such as America, UK, Germany and South Africa in adopting the punishment of life imprisonment. The researcher examines in detail the type of life imprisonment that has been adopted by each of them. The international human rights standards that are attached to the punishment of life imprisonment without remission have also been analysed.
The Indian Penal Code under section 53 does not expressly provide for a punishment titled- Life Imprisonment without remission. It is a result of precedents. The judgement of shraddananda and sriharan evolved this punishment in India.
The Indian model and its justifications with respect to implementing life imprisonment without remission has been dealt with underneath.
COMPARATIVE CONSTITUTIONAL DEBATE ON LIFE IMPRISONMENT
UNITED STATES OF AMERICA
The question of mandatory life sentence being a proportional sentence was raised in USA. According to the 8th constitutional amendment of the US, a cruel and unusual sentence is prohibited. In the case of Rummel v Estate, the accused was sentenced to a mandatory life sentence. He had committed three non violent crimes. In the above case it was argued to categorise the mandatory life sentence as a violation of the 8th amendment because it was believed to have failed the proportionality test which means that the punishment was disproportionate to the crime committed. Also, it was asserted that the judiciary was stepping into the shoes of the legislature by forming such a sentence. However, the US Supreme court did not categorise it as a violation of the amendment. The court held that there is very less likelihood that the offender would have to spend his entire life in prison. Thereafter, the question of discretionary life sentence without the possibility of release was raised before the US courts. In the case of Solem V Helm it was held to be a violation of the 8th amendment and a proportionality test was developed based on the gravity of crime. Finally, in the case of Harmelin V Michigan the court upheld the constitutionality of a mandatory life sentence without the possibility of release. In the case of Harmelin v Michigan the court held the sentence of life without the possibility of parole to be within the scope of the 8th constitutional amendment. In the case of Gregg v Georgia, the court had evolved a proportionality test to be applied in cases of capital punishment. The majority held that 8th constitutional amendment did not mandate upon the court to conduct a proportionality analysis in non capital offences.
In the case of Graham Versus Florida, the US Supreme court had upheld the punishment for life imprisonment without parole for the juveniles.
According to International standards the United Nations Convention on the rights of the child article 37(a) prohibits the use of such a punishment on offenders below 18 years of age. USA has not ratified this convention. However, it is a party to the ICCPR which prohibits torture and cruel, inhuman punishments.
The Basic Law abolished death penalty in Germany. Post abolition, life imprisonment with a possibility of parole is a mandatory sentence for murder. This mandatory sentence was considered to be unconstitutional by the High Court of Verden an der aller of North Germany. It was believed to be contrary to article1. It referred the question to be decided by the constitutional bench. They laid down five arguments to rebut the constitutionality of a mandatory life sentence for murder. (1) A mandatory sentence deprives the court with the opportunity to examine the circumstances of that particular case. (2) Life imprisonment causes massive psychological impact on the offender (3) it does not serve the purpose of prevention and deterrence. (4) The system of parole was not up to the mark. It was only a non judicial one. (5) The figures showed that once an offender was pardoned he very rarely took back to crime. 1000 prisoners were sentenced to life imprisonment. Out of 1000 prisoners, 700 were pardoned and released. Out of these 700, only 3 committed crime again. The high court wanted to clarify the constitutionality of life imprisonment in Germany.
The Federal constitutional court of Germany upheld the constitutionality of life imprisonment rejecting the above contentions. It gave the following reasons for rejecting it-
- It was important to protect the lives of the potential victims.
- The court asserted that it is not certain that life imprisonment causes a psychological impact on the mind of the inmate. The court anyway does not grant such a sentence in haste.
- The court, however, agreed to improve the system of pardons as the present system did not assure an opportunity of release. The court said a statutory system of pardons shall be developed along with the existing system.
- The court believed that life imprisonment did not actually lead to prisoners serving the entire life in jail.
The court identified the importance of retaining the prospect of release as resocialisation was necessary. Only then can life imprisonment be in line with human dignity.
The court also held that the exiting system of pardons had to be amended by way of legislation. Hope of release is essential for life imprisonment to be regarded as constitutional.
In UK the foundation of the argument on the constitutionality of a mandatory and discretionary life sentence is based on Article 5 of the ECHR . The Article 5(4) states that '[e]everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.'
In the case of Gunnel Versus UK, it was held that a discretionary life sentence has two parts- punitive element and security element. It is necessary to serve the punitive element. The security element enables the Secretary of State to ensure if the offender is a threat to public safety or not. Mental stability of the offender and the degree of threat he poses on the society are the two factors to be considered for parole. These factors may change over time. The possibility of parole shall be examined in regular intervals.
In the case of Wynne Versus UK, the above provision of parole was not made available in a mandatory sentence. 
However, further in the case of Stafford Versus UK, the court held that there is no distinction between a discretionary and mandatory life sentenced prisoner. The possibility of parole shall be reviewable at regular intervals after the expiry of the punitive element.
After the abolition of death penalty in South Africa, calls for longer sentences were made to satisfy the requirements of deterrence and retribution.
Earlier life imprisonment was granted in cases which did not fall within the requirements of passing a death sentence. Now, life imprisonment with the possibility of release is the highest punishment that exists in South Africa. It shall serve the purpose of removing the dangerous offenders from the society.
Length of life imprisonment
The prisoner of a life sentence can be released upon the recommendation of the parole board after 12 years. Hope of release was available in statute, given by the executive or the parole board.
However, the judge could take away the right to be considered for parole for a certain period. It was not still binding on the executive.
If long sentences were given by the court, a lot of power (power of remission) would go to the executive which would lead to arbitrary exercise of power. Hence in such cases, it was essential to sentence the accused for a longer sentence and not life imprisonment. The 1997 amendment brought about the right to be considered for parole after 25 years or 15 years (if the accused was 65 years of age).
The court shall decide as to when the sentence can be considered for release and if it wanted to restrict that right, it was mandatory to state the time when the offender would move an application for parole.
INTERNATIONAL HUMAN RIGHTS STANDARDS AND LIFE IMPRISONMENT
The issue of death penalty has now been taken over by life imprisonment globally. While the former condemns the prisoner to die, the latter requires him to die in prison. The global shift towards abolition of death penalty has made life imprisonment as the severest sanction. However it has been asserted that life without the possibility of release imprisonment is a violation of human rights.
Imprisonment shall not be of such a nature that it goes against social justice. It should not psychologically and emotionally damage the offender. The aim of imprisonment shall not be to worsen the behaviour of the inmate and make him do pro criminal activities. Such a sanction also curtails the development and confidence of the offender to face the world.
The sentence of life imprisonment has been criticised on the following grounds
- Human dignity
The aim of prevention of crime shall not supersede the social dignity of the offender. Human dignity is an inherent right of each offender. If the punishment of life imprisonment is retained for the purpose of deterring potential offenders, it leads to treating them as instruments to serve the purpose of the state. Moreover such crimes cannot be curbed by the threat of such a sanction. It is very important to keep the prospect of release open while awarding a life sentence; otherwise it is a simple violation of human rights.
The ratio of the life imprisonment without remission population to prison population has increased to such an extent that it is currently a hundred times greater than it was 30 years ago in the United States.
It appears that the availability of a stringent life sentence has either partially or completely eliminated the pressure to apply the death penalty
One of the arguments in favour of life imprisonment without remission is that it reduces the pressure on the court to administer death sentence when the case falls short of the rarest of the rare category. It is manly serving a twofold purpose. One, protecting the public from dangerous offenders and eliminating the risk of wrongful execution. Certain arguments against life imprisonment without remission include the assertion of a fact that it is sometimes given to please politicians and the public prosecutors. However, it can be countered by the fact that it is often accepted by the offenders as an alternative to being executed
- Cruel, Inhuman and Degrading punishment
Life imprisonment is considered to be an inhuman punishment. It fails the proportionality test. The indeterminate sentence to which the offender is sentenced to snatches away individual freedom and subjects him to an emotional and a psychological trauma which makes it an arbitrary sentence.
Specifying the quantity of the sentence is essential to get in line with human dignity. The life sentence ends with the life of the prisoner thereby quantifying it with death. It puts the individual in the waiting room of death. Human life does not involve mere survival but a life of dignity. It puts the individual on the entrance of death. The author has argued that it is even worse than death penalty.
Van zyl smith argues that the penultimate fact that makes it contrary to human rights is its indeterminate nature.
- Denial of the right of rehabilitation
Life imprisonment without the possibility of release denies the scope of rehabilitation and reformation. It shall thus be regarded as inhuman.
If a life sentence snatches away the hope of release from the prisoner, it is actually hampering his liberty and dignity. It is a mockery of reformation as the purpose of punishment.
The likelihood of the prisoners sentenced to life imprisonment resorting to suicide and self inflicted injuries is higher than the general population. Acts of violence and assault on fellow inmates is also a violation of human rights from the point of view of the person getting beaten.
Deep psychological and emotional changes occur in the inmate's personality. The extent of hostility and dislike towards the legal system grows with the time spent in incarceration. A person may develop depression or start revolting; both are detrimental to the interest of humanity.
International law does not account for inhuman and degrading punishment to be used. The right not to be subjected to inhuman punishment is regarded as a neglected international human right. Most states have ratified treaties on this subject.
The International Criminal Court reserves the right of hearing on the reduction of a mandatory sentence. According article 110(3) the review has to take place after the person has served 2/3rd of his sentence or 25 years in case of life imprisonment.
Reduction is granted if the offender had willingly complied with the court judgements.
Right to human dignity and due process comprise the international human rights law. This thereby puts a restriction on two types of sentences thereby regarding them as cruel. One that carry excessive length and severity. Second, the one that is disproportionate.
Under ICCPR, a combined reading of article 7,8,9,10 suggests clearly ' The aim of penal system shall be to treat prisoners in order to reform and rehabilitate them.'
Article 106 of the Rome Statute requires the international law to be followed, the prison systems shall confirm to the international standards. It also requires the nations to perform the supervisory function. It enables the states to meet with the international pressure and develop the national system accordingly.
Article 77(1)(b) of the Rome Statute of ICC lays down that the sentence of life imprisonment can only be imposed in crimes of extreme gravity and on most heinous offenders. Therefore, it was alleged that the imposition of this type of punishment shall be an exception and not a rule. The statute puts forth a choice for the court to decide between a term of 30 years or lesser or the whole life term
Now this has two fold consequences, the court will award a determinate sentence or the life term if it wants to sentence the accused beyond 30 years.
There is no developed body of law to cater to the cases of life imprisonment. The council of Europe is the only such body. A sub committee has highlighted the violation of human rights on using the punishment of life imprisonment without remission. The international criminal court has accepted it as a substitute punishment for death penalty. It is one of the severest penalties. 
In the case of Leger versus France it was held that a life sentence granting a possibility of release is not in contravention to article 3 of the European Convention as it is not inhuman or degrading. Life imprisonment, if not accompanied with a possibility of release transforms the offender into an animal thereby creating more future victims. In Kafkaris versus Cyprus, the Grand Chamber upheld the constitutionality of life imprisonment without remission by giving the justification of executive clemency as the opportunity of release. However, the author believes it to be a violation of human rights because the scope of release by executive clemency is minimal.
The sentences of life imprisonment without remission do not have any possibility of parole therefore they are not only inhumane, but also unnecessary. These sentences raise many human rights issues that have been at the heart of attack on the death penalty itself. The chapter concludes by mentioning that they too should be abolished.
HUMAN RIGHTS APPROACH IN INDIA – SHRADDANANDA AND SRIHARAN CASE
In India life imprisonment without remission is not a statutory punishment but has developed through precedents. It was advocated to be an encroachment on the rights of the legislature however; the court has settled the issue by upholding it constitutionality.
SHRADDANANDA VERSUS STATE OF KARNATAKA
The judges in the case of Shraddananda versus State of Karnataka were of the opinion that the case fell short of the rarest of the rare category. Hence, they were reluctant to award death penalty.
The state(prosecution) had placed before the court that the convict had served more than 14 years in jail and by virtue of section 433A CrPC would be eligible for remission. Hence, it wanted the court to award life imprisonment without remission. The sentence of life imprisonment must be treated differently from a sentence of life imprisonment without remission.
The judgement highlights the human rights concern that was raised. The counsel for the accused submitted that once the sentence of life imprisonment is awarded by the courts, the provisions under section 433A are discretionary. The court cannot mandate upon the appropriate government to grant remission.
It was contented that once the court fulfils its judicial function of awarding life sentence, it cannot direct the appropriate government in either way- whether to give remission or abstain from doing so. This would amount to a violation of human rights.
The state objected to the same by contenting that the facts of the present case do not make the convict fit to be given the opportunity of being considered for remission. Section 57 of the Indian Penal Code defines life imprisonment to be till the end of the convict's life.
The state presented two extreme possibilities
- The court would sentence the convict to death sentence
- The convict is sentenced to life imprisonment and gets remitted by virtue of the inconsistent way in which remissions are granted by the appropriate government under section 433A CrPC.
Hence, the mid path of life imprisonment without remission would enable a balance of the victim rights and the rights of the accused. The accused would not be hanged since his case falls short of the rarest of the rare and would thereby get a punishment proportional to the crime committed by him.
The court through Justice Aftab Alam held that life imprisonment means imprisonment till the end of the convict's life. The issue before the court was to consider how life imprisonment which is given as a substitute for death penalty be treated differently.
The court rejected to bring the case within the rarest of the rare category as enumerated under Macchi singh case.
Life imprisonment was sought to be considered as a rule and death as an exception as mandated Bachan Singh.
The court awarded the punishment of life imprisonment without remission by placing reliance on the following
- The report of amnesty international titled Lethal Lottery highlighting the unsound way in which death sentence is awarded in India.
- The inability of the criminal justice system to sentence the offender to death.
- Irrevocability of death penalty.
The court held that the accused cannot be released within 14 years. The court was of the opinion that the inconsistent way in which remissions are granted to the convicts of life imprisonment, the sentence of life imprisonment will be justified in this scenario.
SRIIHARAN VERSUS UNION OF INDIA
The court had placed reliance on the case of Shraddananda and believed death penalty to be a violation of human rights.
The court believed that if such a case is looked upon from the perspective of the victim's side, the punishment of death would seem proportionate to the sentiments of retribution. Considering the rule of law and the protection of human rights, due regard shall be placed on factors such as – the past conduct of the accused, background in which he was brought up, his societal background, education etc. This is essential in due regard to human rights.
Through this analysis, the court believed that the punishment of life imprisonment without remission would serve as a proportionate sentence. It would enable the judges to preserve human rights as they would get a mid way between death penalty and life imprisonment that lasts till 14 years due to inconsistent remissions.
On behalf of the Union Of India, it was submitted that once constitutional power has been used for commutation or remission ( in this case commutation of death sentence to life imprisonment), the provisions of section 433 under CrPC cannot be used by the appropriate state government.
However, on behalf of the convicts, the counsel contended that if the stand of Union Of India is accepted, the right of the convicts whose sentences have been commuted by the court to life imprisonment in lieu of Article 21 would not be able to exercise their right of remission or commutation before the appropriate government. This would amount to a violation of the rights of the convicts.
The union of India placed reliance on article 142 allowing the court to devise a category of a life sentence without the possibility of remission.
To this objections were raised that the power under article 142 cannot be used in contravention of the statutory powers available under S 433A of CrPC and also in violation of fundamental rights.
The power to do complete justice had to be exercised to compliment the statutory provisions and the fundamental rights.
The right to be considered for remission was a right recognised in the case of Vinter Versus UK. It was also suggested to award a determinate life sentence after which the convict could be considered for remission. Depriving this right completely would be a violation of human rights.
In the contrary the example of the existence of mandatory whole life sentence as prevalent in England and Wales was submitted. Reliance was also placed on the case of Supreme Court Bar Association v UOI, where it was not open to the court to devise a new punishment altogether.
In the case of Prem Chand Garg it was held that
" the power under article 142 of the constitution of India must not only be consistent with the fundamental rights guaranteed by the constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws."
The sentence of life imprisonment without remission would violate article 14, article 21 and article 20 of the constitution. Article14 sanctions equality. All the previous offenders sentenced to life imprisonment would have access to section 433A unlike the offenders in the above case. Article 20 provided a protection against ex post facto law and greater punishment.
The report submitted by Malimath committee in the year 2003 recommended the introduction of a punishment higher than life imprisonment and lesser than death penalty. However, the parliament did not include it as a type of punishment.
Upon consideration, the court held –The term of imprisonment for life would mean an imprisonment till the end of the convict's life. The constitutional power under article 72 and 161 remain untouched.
As far as the issue of the right of the appropriate government to grant remission is concerned the court was of the opinion that appropriate government would have the right to use the provisions under section 433A even if such consideration was made earlier under article 72 and 161.
CONCLUSION AND ANALYSIS
The criminal justice system of all the countries is not the same. The level of development, socio-economic factors and the form of government determine it to a vast level. The constitutionality of life imprisonment without the possibility of release is different for all the countries as discussed. While countries like USA award indeterminate sentences, South Africa keeps the possibility of release open after 25 years.
Another justification behind retention of this type of punishment is to secure a mid path between death penalty and life imprisonment with a possibility of release. South Africa has abolished death penalty and substituted it with life imprisonment while a keeping a possibility of release open. In the United States of America several states have abolished death penalty while some have retained it.
The researcher believes that the socio economic conditions of India are similar to that of South Africa; however India has not only retained death penalty but also introduced another type of punishment that keeps the offender in the waiting room of death. The criminal justice system of India has tilted towards a retributive model than a reformative one.
International law is a soft law and allows the states to set their own rules keeping in mind the facts and circumstances of their area The blatant violation of international human rights standards not only hampers the rights of the accused but also sets an example of misuse of sovereignty by the government.
The researcher believes that life imprisonment can certainly be used to eliminate death penalty since it fulfils the requirements of deterrence, incapacitation and retribution. However, an opportunity of release must be kept open. The method in which executive clemency works is quite inconsistent which may lead to the accused getting rotten in jail.
The path towards abolition of death penalty and replacing it with life imprisonment without remission is already very tough. India has lately, by way of an ordinance, made capital punishment compulsory for the offenders of child rape. Amidst circumstances like these, abolition of death penalty or its replacement with life imprisonment seems a mirage.
The objective of a criminal justice system must be to punish the crime and not the criminal per se. If the punishments are in tune with international human rights standards, a perfect balance of victim rights and rights of the accused can be struck.
It is true that remission by way of executive clemency in life imprisonment without remission keeps a little hope of release open. However what comes with this, is a large amount of lobbying, delay and politics to obtain remissions and pardons
The way forward, in the present scenario, is to secure a consistent and non arbitrary system of obtaining executive clemencies. This would help us to achieve the perfect balance.
Views are personal only.
(Author is Advocate at Delhi High Court,The author may be reached at firstname.lastname@example.org)
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 501 US 957(1991)
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 Sebastiaan Verelst, Life Imprisonment and Human Rights in Belgium, 2003, Human Rights Law Review, pp 5-6
 Peet M Bekker ,The maximum length of imprisonment imposed by South African courts after theconstitutional abolition of the death penalty: a comparative note on the position in the USA, 2000,The Comparative and International Law Journal of Southern Africa, , pp21
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 Nadia Bernaz,Life Imprisonment and the Prohibition of Inhuman Punishments in International Human Rights Law: Moving the Agenda Forward, 2013,Human Rights Quaterly, , pp 3
 Esther Gumboh,,The penalty of life imprisonment under international criminal law, 2011,African Human Rights Law Journal, , pp 2
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 van Zyl Smit, , 'Abolishing Life Imprisonment?', Punishment and Society, 2001, pp299-306
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Esther Gumboh The penalty of life imprisonment under international criminal law, 2011,African Human Rights Law Journal,, pp 3
 Ibid, pg 4
 Ibid, pg 6
James R. Acker, Questioning Capital Punishment,Criminology and Justice series Studies , edited by; Penn Harrisburg ,pp14
 Ibid, pp 7
 Ibid, pp 21
 Supra 28,pp 11
 Ibid, pp 12-14
 Ibid, pp 17-18
 Roger Hood, The Death Penalty : A worldwide perspective,2008,oxford university press