Source: Supreme Court 

Why in News? 

A bench of Justice Abhay S Oka and Justice Ujjal Bhuyan held that the convict need not apply for remission as it is the duty of the Government to grant premature release of the prisoner. 

• The Supreme Court held this in the case of In Re Policy Strategy for Grant of Bail (2025).

What was the Background of In Re Policy Strategy for Grant of Bail Case?   

• The issues that the Court determined in this case are: 
  • Whether the power to grant remission can be exercised without the convict or anyone on behalf of the convict applying to the appropriate Government for a grant of remission? 
  • What are the nature of conditions that can be imposed while granting remission? 
  • 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? 
  • Whether there is a requirement to record reasons while rejecting applications of the convicts for grant of permanent remission?

What were the Court’s Observations? 

• The Court held that when setting remission conditions, necessary considerations include: 
  • Must control criminal tendencies and promote rehabilitation. 
  • Cannot be overly oppressive or prevent benefit. 
  • Must be clear and performable, not vague. 
• The appropriate Government can cancel remission only for breach of conditions, following procedures in Mafabhai Motibhai Sagar v. State of Gujarat (2024) case. 
•  The Court held that premature release decisions affect liberty under Article 21, require: 
  • Fair and reasonable exercise of power 
  • Recorded reasons for decisions 
  • Natural justice principles 
• The Court further held that Section 433-A limits remission power, requiring life-sentenced convicts to serve minimum 14 years actual imprisonment.  
• The Court clarified that the Government's power to commute sentences under Section 433 CrPC/474 BNSS is separate from remission power. 
• The Court ruled that considering remission for eligible prisoners is the Government's duty, not just an option. 
• The State must proactively identify and consider eligible prisoners for premature release without requiring applications from convicts.

What are the Provisions Related to Remission? 

• The provisions related to remission in Criminal Procedure Code, 1973 (CrPC) are Section 432, Section 433 and Section 433A of CrPC. 
• This is contained in Section 473, Section 474 and Section 475 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). 
• Section 473 of BNSS contains the following salient provisions: 
  • The appropriate Government may suspend or remit sentences with or without conditions. 
  • Government may request the trial judge's opinion when considering applications. 
  • If conditions are not fulfilled, Government may cancel remission/suspension and the person may be arrested to serve the remaining sentence. 
  • Conditions may depend on the person's actions or be independent of their will. 
  • Government may issue rules about suspension and petition requirements, with specific provisions that:  
    • For sentences other than fines for persons over 18, petitions are only valid if the person is in jail. 
    • Petitions must be presented through jail officers or contain declaration that person is in jail. 
  • These provisions apply to any court order restricting liberty or imposing liability. 
  • "Appropriate Government" means:  
    • Central Government for offenses against Union laws 
    • State Government for other cases 
• Section 474 of BNSS provides for power to commute sentence: 
  • The appropriate Government may, without the consent of the person sentenced, commute— 
    • a sentence of death, for imprisonment for life;  
    • a sentence of imprisonment for life, for imprisonment for a term not less than seven years;  
    • a sentence of imprisonment for seven years or more, for imprisonment for a term not less than three years; 
    •  a sentence of imprisonment for less than seven years, for fine;  
    • a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced. 
• Section 475 of BNSS provides for restriction on powers of remission or commutation in certain cases: 
  • Notwithstanding anything contained in section 473, 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 by law, or where a sentence of death imposed on a person has been commuted under section 474 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.

What are the Guidelines Issued by the Court for Remission? 

• The conclusions drawn by the Court are as follows: 
  • The appropriate Government must automatically consider all eligible convicts for premature release under Section 432 of CrPC or Section 473 of BNSS when they meet policy guidelines - no specific application from the convict or relatives is required. This obligation applies whenever jail manuals or departmental instructions contain such policy guidelines. 
  • 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.  
  • The Appropriate Government can impose conditions when granting permanent remission, but these conditions must: 
    • Be based on relevant factors mentioned in paragraph 13 
    • Aim to check criminal tendencies and support rehabilitation 
    • Not be overly oppressive or stringent that would prevent the convict from benefiting 
    • Be clear and practically performable, not vague 
  • Any order granting or refusing permanent remission must include brief reasons and be promptly communicated to the convict through prison authorities. Copies must be sent to District Legal Services Authority Secretaries. Prison authorities must inform convicts of their right to challenge remission rejection orders. 
  • As held in the case of Mafabhai Motibhai Sagar v. State of Gujarat (2024), 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; 
  • The District Legal Services Authorities shall endeavour to implement NALSA SOP in its true letter and spirit. 
  • District Legal Services Authorities must monitor implementation of conclusion (a), maintain records of convicts' relevant dates, and take necessary action when convicts become eligible for premature release consideration. State Legal Services Authorities should develop a real-time data portal for tracking this information.