A remission policy framed by a State Government while exercising the Governor’s constitutional powers under Article 161 of the Constitution cannot be displaced by a later policy issued under the statutory provisions of the Code of Criminal Procedure, the Supreme Court has ruled.
In a significant ruling on remission law, a Bench of Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh held that Haryana’s 2002 remission policy, issued under Article 161, continued to govern eligible prisoners despite the introduction of a stricter remission policy in 2008 under Sections 432 and 433 of the CrPC. The Court also declared its 2021 decision in State of Haryana v. Raj Kumar to be per incuriam, finding that it conflicted with the larger Bench ruling in State of Haryana v. Jagdish (2010).
The judgment came while allowing the appeal of a life convict whose plea for premature release had been rejected after the authorities applied the 2008 remission policy instead of the more beneficial 2002 framework.
Convict Challenged Application of 2008 Policy
The appellant was convicted in 2009 for the murder of a 12-year-old child. After serving more than 14 years of actual imprisonment, he sought consideration for remission under Haryana’s 2002 policy.
The State, however, rejected the request, maintaining that the 2008 policy governed his case because it was in force on the date of conviction. Under that policy, he would become eligible for consideration only after completing 20 years of actual imprisonment and 25 years of total sentence, including remission. The Punjab and Haryana High Court had affirmed this view.
Constitutional Power Cannot Be Overridden by Statute
The Supreme Court closely examined both remission policies and found a fundamental distinction between them.
According to the Court, the 2002 policy specifically required remission proposals to be placed before the Governor for orders under Article 161 of the Constitution. In contrast, the 2008 policy expressly derived its authority from Sections 432 and 433 of the CrPC and required approval through the statutory executive process headed by the Chief Minister.
Emphasising the constitutional status of the Governor’s remission power, the Bench observed that a statutory policy cannot override an exercise of authority flowing directly from Article 161, which operates independently of statutory provisions.
2002 Policy Held to Be Constitutional in Nature
The Bench noted that the 2002 policy closely resembled Haryana’s 1993 remission policy, which had already been recognised by the three-judge Bench in State of Haryana v. Jagdish as a policy issued under Article 161.
Since both policies required remission matters to be placed before the Governor for constitutional consideration, the Court concluded that the 2002 policy also drew its authority from Article 161. As a result, the later statutory policy introduced under the CrPC could not supersede it.
2021 Decision Declared Per Incuriam
The Court found that the reasoning adopted in State of Haryana v. Raj Kumar (2021) could not stand because it overlooked the binding precedent laid down by the larger Bench in Jagdish.
The 2021 judgment had treated the 2002 policy as a statutory policy merely because it did not expressly cite Article 161 as its source. Rejecting that approach, the present Bench held that once the larger Bench had already recognised the materially identical 1993 policy as one issued under the Governor’s constitutional powers, the same conclusion necessarily applied to the 2002 policy.
The Court therefore held that the contrary finding in Raj Kumar was inconsistent with the binding larger Bench decision and consequently stood rendered per incuriam. It further observed that there was no need to refer the issue to a larger Bench because the legal position had already been settled in Jagdish.
Directions Issued
Allowing the appeal, the Supreme Court directed the Haryana Government to reconsider the appellant’s request for premature release under the 2002 remission policy within four weeks.
The Bench clarified that the ruling would apply prospectively and would not disturb remission decisions that had already attained finality. It also noted that, following the judgment, Haryana would effectively have two separate remission policies operating simultaneously, leaving it to the State Government to determine its future course of action.