Why the Supreme Court said states must consider early prisoner release without an application

Court orders states to consider early release of prisoners in landmark judgement. In a landmark judgement in the rights of prisoners, the Supreme Court today directed states with remission policies to consider the possibility of early release of inmates, even if they have not applied for remission in advance. The Bharatiya Nyaya Suraksha Sanhita, 2023 (BNSS) and the Code of Criminal Procedure, 1973 (CrPC) empower states to release prisoners before the expiry of their sentence, subject to certain exceptions for certain categories of offenders.

A bench of Justices Abhay S. Oka and Ujjal Bhuyan, while deciding the case In Re: Policy Strategy for Grant of Bail, had said that to address concerns of prison overcrowding, the court itself had taken up this suo motu case in 2021.

What does the remission law say?

For a convict, remission power means the power to reduce the sentence. The power of remission can be exercised “at any time” by the State Government under Section 473 of the BNSS (and Section 432 of the CrPC). The States can also conditionally remit the sentence of a convict by requiring her to submit to regular reporting to a police officer, for example, as per the clause. According to the clause, the States can revoke the remission granted and arrest the convicted person again without a warrant if she fails to do so.

This is in addition to the authority to impose penalties given to the President and the Governor under Articles 72 and 161 of the Constitution, respectively.

Under Section 475 of the BNSS (as also under Section 433A of the CrPC), the State Government is restricted in its power to remit. - A convict serving a life sentence in respect of a capital offence cannot be released from prison unless he has completed at least 14 years of incarceration.

What was decided by the SC?

In Sangeet, the court held that since Section 432 of the CrPC is “only an enabling provision, ” the power of remission “cannot be suo motu. ” The court explained that this means that Section 432 only allows the government to “override” a court order by remitting a sentence, and this can only be done “by an application for remission by the convict or on his behalf. ” In the Mohinder Singh case, the court also held that it did not have the authority to grant remission on its own initiative.

But the court said on Tuesday that under the prison manuals in several states, the process for grant of remission should be initiated by the prison superintendent. Besides, the court in Sangeet and Mohinder Singh “did not consider a situation where a policy was framed by the appropriate Government for grant of premature release or grant of remission, ” it added.

The requirement of an application, the court in Sangeet held, in part because it “also eliminates ‘discretionary’ or en masse release of convicts on ‘festive’ occasions. ” Singh held that remission cannot be granted by the court on its own initiative.

But the court said on Tuesday that if states did not exercise their discretion and grant suo motu remission, when there is a remission policy which states the criteria for eligibility for remission, they will have problems. It said states have an obligation “to consider cases of every eligible convict under the (remission) policy”. It said if they do not do so it would be “discriminatory and arbitrary” and would be contrary to Article 14 of the Indian Constitution which guarantees equality.