Ensuring Fair and Mandatory Consideration of Convicts for Remission

Introduction

In a landmark development, the Supreme Court of India in “In Re: Policy Strategy for Grant of Bail (2025 INSC 239)” has laid down comprehensive directions on the power of the appropriate Government to remit the sentences of convicts and the procedures that must be followed under both the Code of Criminal Procedure, 1973 (CrPC) and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). This suo motu writ petition was registered to address long-standing concerns related to the fairness, transparency, and consistency of remission orders.

The Judgment transcends the individual circumstances of any particular convict by establishing a clear set of binding norms. The issues examined include whether an application is mandatory for the remission process, the extent and nature of conditions imposed for remission, the procedure for revocation or cancellation of remission, and the requirement to record reasons for allowing or denying remission.

The Judgment was delivered by a Bench comprising Justice Abhay S. Oka and Justice Ujjal Bhuyan, with notable assistance by senior counsel appointed as amicus curiae. In the spirit of protecting the constitutional right to liberty, the Court has also focused on ensuring that convicts are duly informed about their entitlement to challenge remission-related orders.

Summary of the Judgment

The Supreme Court clarified that the relevant statutory provisions—Section 432 of the CrPC and Section 473 of the BNSS—empower the appropriate Government to suspend or remit the whole or part of a convict’s sentence, though such power is subject to statutory limitations (e.g., Section 433-A of the CrPC and Section 475 of the BNSS) as well as constitutional provisions. Emphasizing the importance of a structured approach, the Court held that:

Where a remission policy exists, the Government must proactively consider all eligible convicts rather than waiting for a formal application.
Conditions for remission, if imposed, must be reasonable and cannot be arbitrary or oppressive.
The Government must record brief reasons when either allowing or rejecting remission.
If remission is revoked for breach of conditions, the convict must be given the right to be heard, and a speaking order (i.e., an order with reasons) is mandatory.
All States/Union Territories lacking a remission policy must swiftly frame one.

These directions seek to ensure transparency and fairness in the remission process, protect convicts’ constitutional and statutory rights, and encourage State authorities to frame and implement robust and non-discriminatory remission procedures.

Analysis

Precedents Cited

The Supreme Court’s decision draws significantly on earlier rulings concerning the interpretation of Section 432 of the CrPC:

Sangeet and Anr. v. State of Haryana (2013) 2 SCC 452: This case initially highlighted the requirement that remission generally must be moved through an application by the convict or on the convict’s behalf, and that arbitrariness in remission policies could be curtailed through a case-by-case scrutiny.
Mohinder Singh v. State of Punjab (2013) 3 SCC 294: The majority opinion advocated that remission should not be granted suo motu, reinforcing that a convict’s explicit request is typically necessary, absent other guiding policies.
Rashidul Jafar v. State of Uttar Pradesh (2024) 6 SCC 561: Departing from a purely application-based approach, this more recent decision highlighted that where a government policy exists specifying eligibility for remission, the authorities have a duty to consider eligible convicts even if no formal request is submitted.
Mafabhai Motibhai Sagar v. State of Gujarat (2024 SCC OnLine SC 2982): The Court clarified that any remission granted is subject to cancellation only after providing the convict an opportunity of being heard, and that conditions for remission must be reasonable, non-arbitrary, and capable of being fulfilled.
Bilkis Yakub Rasool v. Union of India (2024) 5 SCC 481: While not dealing exclusively with the procedure for remission, the decision established the requirement for clear reasons to be recorded when accepting or rejecting remission applications.

Legal Reasoning

The Judgment synthesizes these precedents and cements a consistent framework. The Court reasoned that the constitutional guarantee of personal liberty (Article 21) should not be made contingent on the convict’s resources or literacy. If a government has framed a remission policy, it cannot refuse to consider an otherwise eligible convict merely because of the absence of a formal plea. Doing so, the Court stated, would violate Article 14 by creating an artificial distinction between convicts who are able to apply and those who are not.

On the issue of revocation or cancellation of remission, the Court explained that revocation effectively takes away the liberty that was earlier granted and, thus, calls for the application of basic principles of natural justice. The “right to be heard” and the requirement for a reasoned order ensures that convicts are not arbitrarily re-incarcerated without fair procedures.

Additionally, the Court underscored that all States must have a well-defined policy outlining the eligibility and conditions for remission, as the absence of such guidance fosters discretionary and inconsistent decision-making at the level of corrections.

Impact

This Judgment has far-reaching implications for the criminal justice system and for prison administration across India:

Uniformity and Clarity: All States/Union Territories currently without remission policies have been directed to frame them within two months, thus promoting uniform standards nationwide.
Prison Management: Jail superintendents, in coordination with Legal Services Authorities, will compile lists of eligible convicts for remission to ensure timely oversight and to prevent unnecessary overcrowding in prisons.
Enhanced Fairness: By mandating reasons for accepting or rejecting remission and insisting on natural justice before revocation, the Court has significantly minimized the scope for arbitrary or discriminatory exercises of executive power.
Social Rehabilitation: The Judgment’s emphasis on adapting conditions based on the convict’s background and the nature of the crime encourages an approach that prioritizes rehabilitation and reintegration, rather than perpetually stigmatizing ex-convicts.

Complex Concepts Simplified

Below are some key legal concepts clarified or introduced by the Court and simplified for broader understanding:

Remission vs. Commutation: “Remission” involves reducing the duration of a sentence without altering its character—e.g., from life imprisonment to a shorter term, or setting conditions to shorten the time to be served. “Commutation” replaces one form of punishment entirely with a lesser degree of punishment (e.g., from death penalty to life imprisonment).
Suo Motu Remission vs. Application-Based Remission: Traditional case law suggested remission was triggered upon an application, but this Judgment rules that if a policy already exists with eligibility criteria, the Government must proactively consider convicts even without any formal request.
Conditional Remission: The Government can impose conditions to ensure public safety and encourage rehabilitation. However, such conditions must be specific and reasonable, and cannot be so strict that the convict’s freedom is rendered illusory.
Revocation of Remission: If the convict breaches remission conditions, the Government has the power to revoke the remission only after following due process—issue of notice, opportunity for the convict to defend themselves, and a speaking order stating reasons.
Principle of Natural Justice: This encompasses the right to be notified of the grounds against oneself (a show cause notice) and a fair opportunity to respond before any adverse decision is taken.

Conclusion

The Supreme Court’s pronouncement in this case is a watershed moment for prisoners’ rights and the remission process across India. It ensures that state authorities cannot arbitrarily grant, deny, or revoke remission and must act within the framework of publicly available policies backed by cogent reasons. Such procedural safeguards help uphold the constitutional values of equality, liberty, and human dignity by ensuring that all convicts, regardless of their socioeconomic status or level of education, are given a fair chance to secure early release when eligible.

Overall, these guidelines, in conjunction with the Supreme Court’s directions for States/Union Territories to formulate clear remission policies, will ensure that the exercise of remission power is transparent, consistent, and grounded in reasoned decision-making, contributing to a more equitable and rehabilitative criminal justice system in India.