SC Issues Guidelines On Grant Of Remission For Convicts; Directs States & UTs To Formulate Policies In Terms Of Section 473 BNSS

A Bench of Justice Abhay S Oka and Justice Ujjal Bhuyan held, “Where there is a policy of the appropriate Government laying down guidelines for consideration of the grant of premature release under Section 432 of the CrPC or Section 473 of the BNSS, it is the obligation of the appropriate Government to consider cases of all convicts for grant of premature release as and when they become eligible for consideration in terms of the policy. In such a case, it is not necessary for the convict or his relatives to make a specific application for grant of permanent remission. When the jail manual or any other departmental instruction issued by the appropriate Government contains such policy guidelines, the aforesaid direction will apply.”

The amicus curiae, Senior Advocate Liz Mathew, assisted by AOR Navneet R., presented submissions on the subject.

Brief Facts

The Judgment arose from the Suo Motu Writ Petition where the Court examined the policy framework for the remission of the sentence of convicts. The Court analyzed the provisions under Section 432 of the Code of Criminal Procedure, 1973 (CrPC), and Section 473 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which govern the remission of sentences.

The Court noted that the power to remit sentences is vested in the appropriate government but must be exercised in a manner that upholds constitutional guarantees under Articles 14 and 21 of the Constitution of India.

Court’s Observations

The Court had to determine whether the appropriate government could consider the case of a convict for a grant of remission without an application made on behalf of the convict.

The Court referred to its decision Mohinder Singh v. State of Punjab (2013), which contemplated an application to be made for grant of permanent remission. The majority view in the said decision holds that suo motu power to grant remission cannot be exercised. “As specified in Sub-Section (2) of both Sections 432 and 473, there is a requirement to make an application. Since the convict will be in jail, any of his relatives can make an application in terms thereof,” it held.

The Bench stated that the power under Section 432 of the CrPC must be exercised in a fair and reasonable manner. “If there is neither a policy nor any Regulations for exercising the power under Section 432 of the CrPC, there is a possibility that the authorities will not exercise their power in a fair and rational manner,” it remarked.

The Bench also determined whether there can be automatic revocation of remission granted to the convict if he commits a breach of the terms and conditions on which remission is granted.

The Court referred to its decision in Mafabhai Motibhai Sagar v. State of Gujarat, wherein it was held that “Conditions imposed while exercising the power under sub-section (1) of Section 432 or sub-section (1) of Section 473 of the BNSS must be reasonable. If the conditions imposed are arbitrary, the conditions will stand vitiated due to violation of Article 14. Such arbitrary conditions may violate the convict’s rights under Article 21 of the Constitution.”

“Even while passing an order of cancellation of the order of remission, the appropriate Government must record brief reasons. The reason is it takes away the liberty granted to the convicts. When an order of remission is cancelled, it affects the right of the convict to liberty under the Constitution. Therefore, the requirement of recording reasons must be read into the provisions of Sub-Sections (2) of Section 432 of the CrPC and Section 473 of the BNSS. The convict must be given a show cause notice stating the grounds for cancellation and he must be provided an opportunity to file a reply. If this is not read into the statute, the convict will not be in a position to defend the proceedings,” it held.

Lastly, another question that the Court had to determine was whether there was a requirement to record reasons while rejecting applications of the convicts for grant of permanent remission.

The Bench held that the power to grant premature release must be exercised in a fair and reasonable manner. “It affects the convict’s liberty guaranteed under Article 21 of the Constitution. Therefore, the requirement of recording reasons either for granting or rejecting the prayer for permanent remission will have to be read into the provisions of Section 432 of the CrPC and Section 473 of the BNSS. Principles of natural justice must be read into the provisions of Section 432 of the CrPC,” it remarked.

Power To Grant Conditional Remission

The Court ordered:

• “Consideration of various factors which are mentioned by way of illustration is necessary before finalizing the terms and conditions;
• The conditions must aim at ensuring that the criminal tendencies, if any, of the convict remain in check and the convict rehabilitates himself in society;
• The conditions should not be so oppressive or stringent that the convict is not able to take advantage of the order granting permanent remission; and
• The conditions cannot be vague and should be capable of being performed.”

The Bench also directed, “We direct those States and Union Territories that do not have a policy dealing with the grant of remission in terms of Section 432 of the CrPC or Section 473 of the BNSS to formulate a policy within two months from today.”

Consequently, the Court ordered, “To ensure that the power is not exercised in an arbitrary manner, all the states that do not have an exhaustive policy on this aspect must come up with an exhaustive policy within two months from today. It can be either a separate policy or it can be incorporated into the prison manuals.”

Cause Title: In Re: Policy Strategy For Grant Of Bail (Neutral Citation: 2025 INSC 239)

Appearance:

ASG K M Nataraj; Senior AAG Lokesh Sinhal and Arunabh Chowdhury; AAG Avdhesh Singh, Amit Sharma and Sansriti Pathak; DAG Kartikeya Rastogi, Bhupendra Pratap Singh and Shekhar Raj Sharma; Advocate General Lenin Singh Hijam; Senior Advocates Liz Mathew, Tapesh Kumar Singh, Shirin Khajuria, Ashok Kumar Panda, P.V. Surendranath and Apoorv Kurup; Advocates Malika Agarwal, Alankrita Sinha, Devansh A. Mohta, Utkarsh Singhal, Aditya Malhotra, Prerna Dhall, Shivam Ganeshia, Rajyavardhan Mall, et al; AOR Navneet R., Aishwarya Sinha, Prashant Singh, Mukesh K. Giri, Shovan Mishra, Swati Ghildiyal, Asmita Singh, Kunal Mimani, Partha Sil, et al

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