Remission Policy Issued Under Article 161 Overrides Statutory Policy Framed Under CrPC: Supreme Court

The Supreme Court on Wednesday (July 1) held that a remission policy framed by a State Government in exercise of the Governor's constitutional powers under Article 161 of the Constitution cannot be overridden by a subsequent statutory remission policy issued under Sections 432 and 433 of the Code of Criminal Procedure. Holding that Haryana's 2002 remission policy continued to remain operative despite the State's 2008 statutory policy, the Court also declared its 2021 judgment in State of Haryana v. Raj Kumar to be per incuriam for being contrary to the larger Bench decision in State of Haryana v. Jagdish (2010) 4 SCC 216A Bench of Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh passed the judgment while allowing the appeal of a life convict whose application for premature release had been rejected on the ground that he was governed by Haryana's 2008 remission policy instead of the more liberal 2002 policy.The appellant was convicted in 2009 for the murder of a 12-year-old child. After completing over 14 years of actual imprisonment, he sought remission under the 2002 policy. The State rejected his request, holding that since the 2008 policy was in force on the date of conviction, he would become eligible for consideration only after completing 20 years of actual imprisonment and 25 years of total imprisonment. The Punjab and Haryana High Court upheld the State's decision.Examining the two policies, the Supreme Court found that the 2002 policy expressly required remission cases to be placed before the Governor for orders under Article 161 of the Constitution, whereas the 2008 policy specifically invoked Sections 432 and 433 CrPC and required approval of the Chief Minister under the statutory framework."It need not be said that a statutory policy... cannot override an exercise of power under Article 161, for that power is distinct and independent, uninfluenced by any other power, more so statutory in nature," the Court observed.The Bench held that Haryana's 2002 policy was constitutionally rooted, much like the 1993 remission policy which had already been recognised by the three-judge Bench in State of Haryana v. Jagdish as an exercise of powers under Article 161. Since both the 1993 and 2002 policies required remission proposals to be placed before the Governor for orders under Article 161, the Court found them to be identical in terms of their constitutional source. Consequently, the subsequent 2008 policy issued under the CrPC could not supersede the 2002 policy.The Court therefore held that the contrary view taken by the two-judge Bench in State of Haryana v. Raj Kumar (2021) was rendered per incuriam. In Raj Kumar, the Court had held that the 2002 policy was merely a statutory policy traceable to the CrPC because it did not expressly mention the source of power under which it had been issued, and therefore stood superseded by the 2008 policy. The present Bench held that this reasoning could not be sustained in view of the binding three-judge Bench decision in Jagdish. It observed that once the larger Bench had held the materially identical 1993 policy to be an exercise of constitutional power under Article 161, "the inescapable conclusion" was that the 2002 policy was also constitutional in character. The finding in Raj Kumar that the 2002 policy was statutory "would fall foul of the reasoning in Jagdish supra and hence be rendered per incuriam," the Court said. It added that a reference to a larger Bench was unnecessary because the issue already stood concluded by the binding larger Bench decision in Jagdish.Allowing the appeal, the Court directed the Haryana Government to reconsider the appellant's remission application under the 2002 policy within four weeks. It clarified, however, that the ruling would operate prospectively and would not reopen remission applications that had already been decided. The Court also observed that, following the judgment, Haryana would effectively have two distinct remission policies operating simultaneously, leaving it to the State to decide how to proceed in future.HeadnoteConstitution of India, 1950 – Article 161 – Code of Criminal Procedure, 1973 – Sections 432, 433 and 433-A – Remission Policy – Applicability and Inter-se Hierarchy of Constitutional vs. Statutory Remission Policies – The State of Haryana's 'Policy Regarding Release of Life Convicts 2002' (dated 12.04.2002) is a policy framed under the constitutional powers of the Governor under Article 161 of the Constitution, identical to the 1993 Policy - A subsequent statutory policy framed by the Executive under Sections 432 and 433 of the CrPC, such as the 2008 Premature Release Policy, cannot override or dilute the benefits of a prior constitutional policy under Article 161 - A statutory policy cannot supersede the constitutional power vested in the Governor. [Paras 9-16]Precedent – Doctrine of Per Incuriam – Conflict between Three-Judge Bench and Co-ordinate Bench Decisions – The judgment in State ...

Remission Policy Issued Under Article 161 Overrides Statutory Policy Framed Under CrPC: Supreme Court

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Yash Mittal

Remission Policy Issued Under Article 161 Overrides Statutory Policy Framed Under CrPC: Supreme Court

Yash Mittal

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Yash Mittal

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