The Supreme Court of India has issued significant directions regarding the power of state governments to grant remission of sentences for convicts under Section 432 of the Code of Criminal Procedure, 1973 (CrPC) and Section 473 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). In a landmark judgment, the court emphasized that the grant of remission should not be solely dependent on an application from the convict or their representative. Instead, it is the responsibility of the government to assess the eligibility of convicts for premature release.

Supreme Court's Key Observations

A bench of Justices Abhay S. Oka and Augustine George Masih ruled that the government has a legal obligation to consider the cases of all eligible convicts for remission. The court held:

"If a State or Union Territory has a policy for granting permanent remission with set eligibility criteria, it becomes an obligation for the government to consider every eligible convict, irrespective of whether they have applied for remission."

The bench further stated that denying remission solely on the ground that no application was made would be arbitrary, discriminatory, and violative of Article 14 of the Indian Constitution.

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The Supreme Court expressed concerns that in the absence of a clear policy, authorities may exercise their powers under Section 432 CrPC and Section 473 BNSS in an arbitrary and unfair manner. To prevent such discrepancies, the court directed:

"All states that do not have an exhaustive policy on remission must formulate one within two months. This can either be a separate policy or incorporated into the prison manuals."

This ensures that all convicts eligible for remission are treated fairly, preventing any scope for discrimination or arbitrary decision-making.

The court clarified that while remission can be granted unconditionally, reasonable conditions may also be imposed. These conditions must be:

• Clear and specific – Avoiding vague or impractical requirements.
• Non-oppressive – Ensuring they do not make the convict’s reintegration into society difficult.
• Considerate of public safety – Taking into account the nature of the crime and its impact on victims and society.

The court highlighted:

"When a convict is granted remission, it is essential to assess their rehabilitation process, the crime’s nature, and the motive behind the offense. Public safety must be a key factor in deciding the conditions for remission."

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Another crucial aspect discussed was the cancellation of remission. The court ruled that if a convict violates the remission conditions, the government has the authority to cancel the remission and require the convict to serve the remaining sentence. However, it must follow the principles of natural justice, which include:

1. Issuing a show-cause notice explaining the grounds for cancellation.
2. Providing the convict with an opportunity to respond.
3. Recording brief but clear reasons for revocation.

The Supreme Court categorically stated:

"The cancellation of remission affects a convict's liberty under Article 21. Therefore, the government must provide proper reasoning and ensure due process before revoking remission."

To ensure transparency, the Supreme Court mandated that every order granting or rejecting remission must include recorded reasons. The court held:

"Brief reasons must be recorded in remission orders, allowing convicts to understand the basis of the decision and challenge it if necessary."

Additionally, the judgment directed that:

• Convicts should be informed about their right to challenge rejection orders.
• A copy of the rejection order must be sent to the Secretary of the District Legal Services Authority (DLSA) for legal assistance.

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The National Legal Services Authority (NALSA) has issued a Standard Operating Procedure (SOP) to streamline the remission process. The Supreme Court strongly advocated for its implementation, stating:

"The NALSA SOP must be followed in its true letter and spirit to ensure fair treatment of convicts seeking premature release."

Further, the court directed District Legal Services Authorities (DLSAs) to:

• Maintain records of convicts eligible for remission.
• Monitor the implementation of remission policies.
• Work towards creating an online portal for real-time updates on eligible convicts.

Supreme Court’s Final Directions

To ensure proper execution of its ruling, the Supreme Court issued the following mandatory guidelines:

Governments Must Consider All Eligible Convicts for Remission : If a policy exists, remission cases must be assessed automatically without requiring an application from the convict.

States Without a Policy Must Formulate One Within Two Months : This policy should provide clear guidelines for remission eligibility and procedures.

Conditions for Remission Must Be Fair and Achievable : They should not be overly strict or difficult to follow, ensuring convicts can reintegrate into society.

Every Decision on Remission Must Contain Recorded Reasons : Both approval and rejection orders must include reasons and be communicated to the convict.

Remission Cancellation Requires Due Process : Before revoking remission, the convict must be given a show-cause notice and an opportunity to respond.

Implementation of NALSA SOP : DLSAs must monitor remission cases and ensure fair treatment of convicts.

Creation of a Digital Database for Remission Cases : A portal should be developed to track and update remission applications in real-time.