New Delhi: The Supreme Court ruled on 21 October that an order of remission cannot be revoked without following the principles of natural justice.
The court ruled that the government’s power of remission or suspension must be exercised in a “reasonable” manner, in line with Article 14 of the Constitution, which guarantees equality before the law.
A two-judge bench of justices Abhay S. Oka and Augustine George Masih was reviewing a challenge to a Gujarat High Court order regarding the legality of the conditions imposed while remitting or reducing a convict’s life sentence under Section 432 of the Code of Criminal Procedure, 1973 (CrPC).
Section 432 of the CrPC, which corresponds to Section 473 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), addresses the government’s powers to suspend or remit sentences.
What is the government’s power of remission?
Section 432 of the CrPC says the appropriate government, be it state or central, may at any time, with or without conditions, suspend the execution of a person’s sentence or shorten/remit it.
The remission process kicks off with an application to the government for either suspension or remission of the sentence.
Following this, the government may ask the presiding judge of the court that confirmed the conviction to provide his or her opinion on whether the application should be allowed or denied, along with reasons for the decision.
Subsequently, this decision, complete with accompanying reasons, must be forwarded along with a certified copy of the trial records.
However, if any condition related to a suspended or remitted sentence isn’t fulfilled, the relevant government may revoke the suspension or remission.
Once the suspension or remission is revoked, any police officer can arrest the convict without a warrant and remand them to serve the remaining portion of their sentence.
Finally, the appropriate government will, through general rules or special orders, “give directions as to the suspension of sentences and the conditions” relating to the concerned applications.
What was the case?
In this case, the state of Gujarat convicted the appellant, Mafabhai Motibhai Sagar, for murder and rioting under sections 302 (murder), 147 (punishment for rioting) and 148 (rioting, armed with a deadly weapon) of the Indian Penal Code.
The trial court handed him a life sentence on 18 February, 2008, and his conviction had reached the final stage.
However, the present plea before the top court challenged an order passed by the Gujarat High Court in September last year denying parole to the convict. Before the HC, the appellant had sought parole under Rule 19 of the Prisons (Bombay Furlough and Parole) Rules, 1959.
Rule 19 says a prisoner may be granted parole for a period not exceeding 30 days at a time as ordered at the discretion of a competent authority.
Parole can be granted in cases of serious illness or death of a close relative such as a parent, sibling, child or spouse. It can also be granted in situations involving natural disasters such as a house collapse, floods or fires.
However, parole cannot be granted or extended without obtaining a police report in all cases, except when a close relative has died.
On 15 September last year, the Gujarat government’s Home Department had passed an order granting remission to Sagar, thereby shortening his remaining sentence but with four conditions.
The first condition for his release from jail was that he must “behave decently” for two years. Second, if he committed any cognizable offence or causes serious injury to a citizen or property after his release, he would have to be re-arrested and be required to serve his remaining sentence.
The other two conditions were that he must report to the nearest police station for one year after his release and pay any outstanding fines to qualify for release.
Aggrieved by the first two conditions, Sagar challenged the Gujarat government’s remission order before the Gujarat HC.
What does the law say?
Under Section 432 (1) CrPC, the relevant government has the power to remit the entire punishment or a part of it. This remission can be granted either unconditionally or with specific conditions. However, the actual remission takes effect only after the convict agrees to these conditions.
Before deciding the matter, the court clarified that there was no doubt that the appropriate government had the power to grant remission, provided the conditions were met.
It cited a ruling by a five-judge bench of the Supreme Court in the case of Union of India vs V. Sriharan alias Murugan (2016), which upheld an earlier view by the top court in the case of Mohinder Singh vs. State of Punjab (2013) to say that “the decision to grant remission has to be well informed, reasonable and fair to all concerned”.
Factors to be considered while deciding remission or suspension
The power to remit or suspend a sentence under Section 432(1) of the CrPC is discretionary, but there are important considerations to keep in mind while exercising this power.
One key consideration is public interest. Other factors that should be taken into account include the gravity and nature of crimes committed as well as the convict’s history, including their background and any previous convictions.
In August last year, a three-judge Supreme Court bench in the case of Rajendra Mandal vs State of Bihar established important factors for governments to consider while granting remission of sentence to convicts under Section 432.
These factors included the nature of the crime committed, the convict’s record and background, his role in the crime, conduct after conviction and other relevant considerations such as age, health, familial responsibilities and the potential for reintegration into society.
Almost all states in the country have a written policy regarding the grant of remission under Section 432(1) CrPC.
For instance, Gujarat has established a policy through its Government Resolution dated 23 January 2014. This resolution includes guidelines for evaluating cases related to remission and the premature release of prisoners. However, it has been amended periodically.
“The existence of a rational policy is necessary to prevent the arbitrary exercise of power to grant a remission under Section 432(1) of the CrPC,” the court said in its 21 October ruling.
Is remission a matter of right?
No, a convict cannot seek remission as a matter of right. However, he does have the right to have his case considered for remission, according to the law.
The power under Section 432(1) CrPC must be exercised in a fair and reasonable manner, the court reiterated in its ruling.
The court also outlined that the conditions imposed by governments while exercising the power of remission or suspension under Section 432 must be “reasonable” and stand the test of scrutiny under Article 14 of the Constitution (equality before the law).
“If the conditions imposed are arbitrary, the conditions will stand vitiated due to violation of Article 14. Such arbitrary conditions may also violate the convict’s rights under Article 21 of the Constitution,” the court said.
Legality of conditions in the present case
Regarding the legality of the conditions imposed by the Gujarat government in Sagar’s case, the court noted that the first condition required the convict to “behave decently” for two years following his release.
However, the court noted that the words “decent” or “decently” are not defined in the CrPC or other related legislation.
“The concept of decency of each human being is likely to be different. The idea of decency keeps on changing with time. As the term ‘decency’ is not defined in the CrPC or any other cognate legislation, every person or authority may interpret the same differently. Therefore, such a condition while granting remission becomes too subjective,” the court observed.
It added that “such a vague condition” could become a tool in the hands of the executive to cancel the remission on a “whim”.
The court further added that such a condition was “arbitrary” and defeated the purpose of the legal provision, deeming it unsustainable and striking it down.
The second condition, which said the convict would be re-arrested and required to serve his remaining sentence if he committed any cognizable offence or inflicted serious injury to a citizen or property, was clarified by the court in its order.
Citing the Supreme Court 1977 ruling in the case of Shaikh Abdul Azees vs State of Karnataka, where remission was granted after the convict served 15.5 years of a life sentence, the court emphasised that “on breach of any condition of the remission,” there would not be an “automatic revival” of the sentence.
Instead, it would be the government’s discretion whether to cancel the remission or not.
What is the procedure to cancel someone’s remission?
The court said that the “drastic power” to revoke someone’s remission and, thereby their liberty, cannot be exercised without following the principles of natural justice.
It clarified that the state government must serve a show-cause notice to the convict withdrawing or cancelling their remission.
“The show-cause notice must contain the grounds on which action under subsection (3) of Section 432 of the CrPC or subsection (3) of Section 473 of the BNSS is proposed to be taken,” it added.
The court further said that the authority can only cancel remission after giving the convict an opportunity to be heard and submit a reply. The cancellation order must include detailed reasons for the decision.
However, the court clarified that every breach of the conditions of remission “cannot invite cancellation” of the remission order. The government must assess the nature of the breach, and minor breaches cannot be grounds for revoking remission.
Finally, the court added that the remission order “shall not be revoked on the ground of breaches of conditions without compliance with the principles of natural justice”.
What is the principle of natural justice?
The principle of natural justice is well-established in common law. In India, a seven-judge Supreme Court bench addressed this principle in Maneka Gandhi vs Union of India (1978) while ruling on the case involving the impoundment of Gandhi’s passport.
In that case, the court ruled that “a fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice”.
It referred to the 1971 ruling in Wiseman vs Borneman by a UK court, which said that natural justice is a humanising principle designed to invest law with fairness and secure justice. Over the years, the principle has grown into a widely accepted rule influencing many areas of administrative action.
The two most commonly cited principles of natural justice are audi alteram partem and nemo judex in causa sua, Latin legal maxims meaning “let the other side be heard” and “no man can be a judge in his own cause” respectively.
In the case of Madhyamam Broadcasting Limited vs Union of India in April last year, the Supreme Court held that the concept of natural justice “cannot be put into a straitjacket formula” while adding that it does not have a set definition.
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