Top court seeks policy on premature release of convicts on life term
Aiming to standardise the process of granting permanent remission across the country, a bench of justices Abhay S Oka and Ujjal Bhuyan emphasised that the power to grant remission must be exercised in a “fair and reasonable manner”.
The Supreme Court on Tuesday directed all states and Union territories (UTs) to formulate within two months, a clear remission policy on the premature release of life-term convicts , underlining that considerations of liberty, fairness and the principles of natural justice must guide decisions regarding the early release of convicts.
Aiming to standardise the process of granting permanent remission across the country, a bench of justices Abhay S Oka and Ujjal Bhuyan emphasised that the power to grant remission must be exercised in a “fair and reasonable manner”.
While monitoring a matter initiated on its own motion, the court underscored the necessity of clear guidelines to avoid discrimination and ambiguity, making it mandatory for authorities to provide reasoned orders while granting or rejecting remission under Section 432 of the Code of Criminal Procedure (CrPC), now replaced by Section 473 of the Bharatiya Nyaya Sanhita (BNSS).
Section 432 of CrPC allows states, UTs and the Central government (in cases investigated by central agencies) to grant premature release to convicts. However, for those serving life sentences for crimes punishable by death, CrPC and its equivalent provision in BNSS restrict this power. These convicts must serve a minimum of 14 years before their remission requests can be considered.
This verdict assumes importance in the context of India’s criminal justice system, where remission policies have often been inconsistent across states. By mandating a uniform approach, the court seeks to prevent arbitrariness and ensure fair treatment of convicts. Senior counsel Liz Mathew assisted the court as amicus curiae in the matter.
The verdict also referred to Bilkis Bano’s case, which witnessed the Supreme Court stepping in to scrap the premature release of 11 men, sentenced to life in 2008 for the gang rape of Bilkis Bano and murder of seven of her family members during the 2002 Gujarat communal riots. In its January 2024 decision, the top court also reproached the Gujarat government for freeing the convicts, adding the state “acted in tandem and was complicit” with the convicts. Similarly, the release of Anand Mohan - a former parliamentarian convicted for the murder of a district magistrate, in April 2023 reignited concerns over political interference in remission policies. The Bihar government amended its prison rules to remove the bar on remission for those convicted of killing public servants, facilitating his release after 15 years in prison. A challenge to his remission is presently pending before the top court.
“When there is a policy in place for granting premature release, the state is obligated to consider all eligible convicts, and not just those who apply for remission,” held the bench, calling out arbitrary decision-making as a violation of Article 14 of the Constitution.
The court issued sweeping directives to bring uniformity in remission procedures. It ruled that where a state policy or jail manual provides for premature release, it becomes the duty of the government to proactively consider all eligible convicts without requiring them or their families to file applications. The bench made it clear that states without an existing remission policy must frame one within two months.
Additionally, the ruling mandated that orders granting or denying remission must include specific reasons and be promptly communicated to the convict. “Denial of remission affects a convict’s liberty under Article 21 of the Constitution. Therefore, principles of natural justice must be read into remission provisions,” it held.
The bench also stressed that conditional remission is permissible but should not be oppressive or vague. “Conditions must be aimed at ensuring that the criminal tendencies, if any, of the convict remain in check and that they rehabilitate themselves in society. At the same time, they should not be so stringent that they effectively nullify the remission itself,” the order stated. Factors like the nature of the crime, motive, criminal background, impact on victims, and public safety must be considered, it added.
To ensure effective implementation, the court directed that prison authorities must notify convicts of their right to challenge rejection orders. The District Legal Services Authorities (DLSAs) have been tasked with ensuring adherence to remission policies, maintaining records of eligible convicts, and monitoring compliance. The National Legal Services Authority (NALSA) has been entrusted with forwarding the judgment to all state and Union territory legal service bodies for further action.
The court also called for the creation of a digital portal to track the remission process in real-time, ensuring transparency and accountability.
Addressing concerns about the cancellation of remission, it held that remission once granted cannot be revoked arbitrarily. “Even in cases where the convict breaches the conditions of remission, the government must provide them an opportunity to be heard before cancelling the remission. The order of cancellation must record brief but clear reasons,” clarified the judgment, citing the 2013 Mafabhai Motibhai Sagar case.
The court acknowledged a standard operating procedure (SoP) framed by NALSA to guide remission cases, and urged its full implementation. It specifically requested NALSA to incorporate a provision in the SOP to ensure convicts are informed of their right to challenge the rejection of their premature release applications.
Further, the court emphasised that when the opinion of a presiding officer (trial judge) is sought, it should be provided promptly given the liberty of the convict is involved.
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