Supreme Court: General Policy for Remission Under Article 72 or Article 161 Requires Consideration by Larger Bench

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The Appellant is convicted under Section 302 read with Section 34 of IPC. He is sentenced to suffer life imprisonment, including fine. However, based on the policy of the State, he was released in 2019. He had completed 8 years of the actual sentence. The State was called upon to file an affidavit. An affidavit indicating the policy to release convicts prematurely.

The Governor of Haryana granted special remission to certain categories of prisoners. This was granted under Article 161 of the Constitution. This policy is reproduced in the judgment under Para 2. The policy applied to male convicts over 75 years of age and who had completed 8 years of the actual sentence.

Court’s View

Case of Maru Ram 

The Court referenced to Maru Ram v. Union of India and others, (1981) 1 SCC 107. Wherein the Apex Court considered the validity of Section 433A of the Cr.P.C. 1973. The Court had concluded that no separate order for each individual case was necessary. Any general order can be made. However, the same must be clear and identify a group of cases. Lastly, it should also indicate the application of mind to the whole group. 

The Apex Court in Maru Ram case also considered the difference. The difference between remission occurring in other statutes and the Constitution. It held that the power is exercised under Articles 72 and 161 of the Constitution by the two highest dignitaries. That the power must be exercised not on their judgment but, aid and advice of the ministers. The Court also emphasized the rulemaking power in the following word:

“…The proper thing to do, if Government is to keep faith with the founding fathers, is to make rules for its own guidance in the exercise of the pardon power keeping.” (emphasis supplied)    

Case of Swaran Singh 

The Court then reference to Swaran Singh v, State of UP and others, (1998) 4 SCC 75. Wherein, the Court set aside the remission. It observed that the Governor needs to consider all vital factors before deciding on remission. If not, the Governor would be deprived of exercising power in a fair and just manner.

Case Of Epuru Sudhakar 

Similarly, the Epuru Sudhakar v. Govt. of A.P., (2006) 8 SCC 161 was referred. In this, the Court laid down the grounds for judicial review of the order of remission. One amongst them is that the relevant materials were kept out of consideration. Further, it was observed that the Governor and the President are the sole judges of the sufficiency of facts. While commenting on benefits to convict, the Apex Court in the case observed as follows:

“the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future.”

The Court in this case observed that the principles of Section 433A of the CrPC cannot apply while exercising power under Articles 72 or 161 of the Constitution. Furthermore, no limitation can be read into the power and nor is the sovereign bound by restrictions. 

Court’s Decision

In the context of the present case, the Court found that individual facts and circumstances of each case were not placed before the Governor. However, a general policy was drafted and based on which the Appellant was released. The Court found the observations of the precedents to be contrary. Hence, decided to place the matter before a larger bench.


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