It was contended before SC in Vikas Yadav v. State of Uttar Pradesh, [Criminal Appeal Nos. 1531-1533 of 2015], under Section 302 of The Indian Penal Code, 1860 life is minimum and maximum is Death Sentence and therefore Court has a choice between the two and is not entitled to follow any other path. It would be violative of the sanctity of Article 21 which clearly stipulates, no person shall be deprived of his life or personal liberty except according to the procedure established by law. Imposition of sentence for a fixed term is contrary to the procedure established by law and is impermissible. When IPC provides for only two punishments, i.e., Life Imprisonment or Death, Court by Judge-Made Law cannot introduce a third category of punishment.
SC repelled the submission: “There are many an authority to support, there are imposition of fixed term sentences to curtail the power of remission and scuttle the application of the convict for consideration of remission. It is because, in a particular fact situation, it becomes a penological necessity which is permissible within the concept of maximum and minimum. Court when dealing with an appeal for enhancement of sentence from Life Imprisonment to Death, can definitely say that the convict shall suffer actual incarceration for a specific period. Be it noted, Court cannot grant a lesser punishment than the minimum but can impose a punishment which is lesser than the maximum. It is within the domain of sentencing and is constitutionally permissible.”
Constitutional Court can always impose a fixed term sentence so that benefit of statutory remission is not available.
– Hon’ble Justice Abhay S. Oka, Shiva Kumar v. State of Karnataka, [Criminal Appeal No. 942 of 2023] decided on 28.03.2023.