Remission without application: What Supreme Court held, why

This decision marks a significant shift in the SC’s approach to remission. In two separate decisions from 2013, the court held that states cannot remit sentences suo motu (of their own volition) and the prisoner must first make an application. Here, we explain the court’s logic behind this shift in attitude.

What is the law on remission?

The power of remission refers to the power to reduce the period of a sentence for a person who has been found guilty of a crime. Section 473 of the BNSS (and Section 432 of the CrPC) grants state governments the power to remit sentences “at any time”. States can also choose whether to impose conditions that the convict must meet for her sentence to be remitted, such as agreeing to report to a police officer at regular intervals. If any of these conditions are not fulfilled, the provision states that the states may cancel the remission granted and arrest the convict again without a warrant. This is separate from the power of the President and the Governor to remit sentences under Articles 72 and 161 of the Constitution respectively.

One of the restraints placed on the state government’s power of remission can be found under Section 475 of the BNSS (and Section 433A of the CrPC). For convicts serving a life sentence and have been found guilty of an offence punishable by death, the state cannot release them from prison until at least 14 years imprisonment have been served.

The BNSS and the CrPC mention that the remission process starts “Whenever an application is made to the appropriate Government”. However, the SC has now ruled that this application is not strictly necessary now that most states have remission policies which prescribe eligibility conditions.

What did the SC rule?

The court considered two past decisions on the subject of remission, Sangeet and Anr. v State of Haryana (2013) and Mohinder Singh v State of Punjab (2013). In Sangeet, the court held that the power of remission under Section 432 of the CrPC “cannot be suo motu” as it is “only an enabling provision”. This, the court explained, means that Section 432 only enables the government to “override” a judicial decision by remitting a sentence, which can be set into motion “only through an application for remission by the convict or on his behalf”. Similarly, the court in Mohinder Singh held that the court cannot exercise the power to grant remission suo motu.

However, on Tuesday the court noted that prison manuals in several states require the prison superintendent to initiate proceedings for the grant of remission. Further, it stated that the court in Sangeet and Mohinder Singh “did not consider a scenario where a policy was framed by the appropriate Government for grant of premature release or grant of remission”.

One of the reasons the court in Sangeet laid down the requirement for an application was that “It also eliminates “discretionary” or en masse release of convicts on “festive” occasions”.

However, when there is a remission policy in place that provides eligibility criteria for remission, the court on Tuesday held that problems would arise if states did not exercise discretion and grant suo motu remission. It held that states have an obligation “to consider cases of every eligible convict under the (remission) policy”. Failing to do so, the court held, would be “discriminatory and arbitrary”, and would violate the right to equality under Article 14 of the Constitution of India.

Did the SC issue any other directions?

To ensure that the verdict is effective across the country, the court also directed every state to create an “exhaustive” policy for remission within two months if one is not already in place. The court also issued guidelines to build upon the decision in Mafabhai Motibhai Sagar v. State of Gujarat (2024) where the SC held that any conditions for remission must be “reasonable”. It held that:

• Conditions must account for various factors including the motive of the crime, criminal background and public safety;
• Conditions must aim to ensure the criminal is rehabilitated and “the criminal tendencies,if any, of the convict remains in check”;
• Conditions cannot be so “oppressive and stringent” that the convict cannot take advantage of the remission;
• Conditions must not be vague and should be capable of being performed.

In the Mafabhai case, the court also clarified that remission should not be canceled in every case where the conditions are breached, stating the facts of each case should be considered carefully and “A minor or a trifling breach cannot be a ground to cancel remission”. Relying on this holding, Justices Oka and Bhuyan held that a notice must be sent to the convict containing reasons for cancellation and the convict must be allowed to file a reply before the state decides to cancel the remission.

What is the prison population in India?

According to the latest data published by the National Crime Records Bureau, as of December 31, 2022, prisons in India have a 131.4% occupancy rate, with 5,73,220 inmates while the total capacity was 4,36,266. The Supreme Court’s directions may put a dent in this figure, although a vast majority of prisoners in India are undertrials (75.8%) and are still awaiting a final decision in their cases.

Though no official data exists on how many prisoners have benefitted from remission policies over the years, the Prison Statistics in India Report (last published for the year 2022) provides data on the number of prisoners released prematurely. 2321 prisoners were released in 2020, with the number increasing slightly to 2350 in 2021. The number of prisoners released prematurely increased dramatically in 2022, with the number sitting at 5035.