Read Time: 18 minutes

Synopsis

The Supreme Court has said that when a State Government or a Union Territory has adopted a policy for the grant of permanent remission with conditions, it becomes its obligation to consider cases of all eligible convicts for it.

"If such a policy exists, and if the State Government or the Government of Union Territory raises a contention that relief will be granted only to those who apply as per policy, it will amount to saying that even if convicts are eligible for consideration in terms of the policies, their cases will not be considered in terms of the policy. Such conduct on the part of the States will be discriminatory and arbitrary and amount to a violation of Article 14 of the Constitution," a bench of Justices Abhay S Oka and Ujjal Bhuyan said.

The bench said that the power under Sections 432, 432(1) of the CrPC must be exercised in a fair and reasonable manner.

"Therefore, whenever there is a policy for consideration of cases for permanent remission, it becomes an obligation of the State to consider cases of every eligible convict under the policy," the bench said.

"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, the bench added.

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 it within two months, the court ordered.

The bench explained that it could be either a separate policy or incorporated into the prison manuals.

"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," the court said.

Therefore, the bench said, 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.

In Bilkis Yakub Rasool Vs Union of India (2024), the bench pointed out that the court held that the reasons for grant or refusal of remission should be clearly delineated in the order.

"Therefore, the requirement to record reasons exists. Brief reasons must be recorded, which are sufficient to enable the convict to understand why his prayer for remission has been rejected. This enables him to challenge the order of rejection," it said.

Furthermore, the court said, it follows that the order passed by the appropriate Government of either granting or rejecting the prayer for remission must be communicated to the convict.

"If the prayer is refused, while providing a copy of the order to the convict, he must be informed that he has a right to challenge the order. A copy of the order rejecting the prayer must be immediately provided to the Secretary of the District Legal Services Authority so that legal aid can be offered to the prisoner to challenge the order," the bench said.

The court noted the Standard Operating Procedure issued by NALSA on the subject of premature release is very exhaustive and needs to be implemented in its letter and spirit.

The court also said when the Presiding officer's opinion is sought as per Sub Section (2) of Section 432 of the CrPC and Section 473 of the BNNS, the Presiding Officer must submit his opinion at the earliest considering the fact that the issue of liberty of the convict is involved.

The court recorded its conclusion:

a) 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 such policy guidelines, the aforesaid direction will apply;

b) 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;

c) Appropriate Government has the power to incorporate suitable conditions in an order granting permanent remission. Consideration of various factors is necessary before finalizing the conditions. The conditions must aim at ensuring that the criminal tendencies, if any, of the convict remain in check and that the convict rehabilitates himself in the 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. The conditions cannot be vague and should be capable of being performed;

d) Order granting or refusing the relief of permanent remission must contain brief reasons. The order containing reasons should be immediately communicated to the convict through the office of the concerned prison. The copies thereof should be forwarded to the Secretaries of the concerned District Legal Services Authorities. It is the duty of the prison authorities to inform the convict that he has the right to challenge the order of rejection of the prayer for the grant of remission.

e) An order granting permanent remission cannot be withdrawn or cancelled without giving an opportunity of being heard to the convict. An order of cancellation of permanent remission must contain brief reasons;

f) The District Legal Services Authorities shall endeavour to implement NALSA SOP in its true letter and spirit.

g) Further, the District Legal Services Authorities shall also monitor implementation of conclusion (a). For this purpose, the District Legal Services Authorities shall maintain the relevant date of the convicts and as and when they become eligible to a consideration for grant of premature release, they shall do the needful in terms of conclusion (a). The State Legal Services Authorities shall endeavour to create a portal on which the data can be uploaded on real time basis.

Court pointed out that the National Legal Services Authority (NALSA) has formulated a Standard Operating Procedure on legal assistance, operationalisation, and co-ordination in improving the process of premature release, parole, furlough of prisoners, 2022.

The SOP contemplates that prison superintendents of all the prisons prepare a list of all life convicts and other convicts who will be entitled to be considered for premature release in the immediate four months as per the eligibility provided under the state policy, the court further noted.

"It is thus apparent that after the preparation of a list of all life convicts and other convicts who will be entitled to be considered for premature release, the said list must be regularly forwarded by the prison superintendents to the appropriate Government so that the case of premature release of such convicts is considered by the appropriate Government," it said.

The court noted that as far as the remission of the sentence of the convicts is concerned, there are provisions under Section 432 of the and Section 473 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

The power under Section 432 of the CrPC is circumscribed by Section 433-A. It provides that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, the appropriate Government cannot grant remission unless the convict has served at least fourteen years of actual imprisonment, it said.

The court noted that the provisions for premature release have been incorporated in prison manuals of various States. In fact, in the Model Prison Manual, it is provided that the superintendent in charge of a prison has to initiate a case of a prisoner for grant of premature release. Similarly, in the prison manuals of the States of Goa, Nagaland, Mizoram, Tripura, Himachal Pradesh, Haryana, Jharkhand, NCT of Delhi, Odisha, and Uttarakhand, there is a provision that requires superintendents of prisons to initiate proceedings for grant of permanent remission.

Case Title: In Re: Policy Strategy For Grant of Bail