A) ABSTRACT / HEADNOTE

In Re: Policy Strategy for Grant of Bail examines the scope and procedural safeguards surrounding the power of the appropriate Government to grant remission under Section 432, Code of Criminal Procedure, 1973 (and the corresponding Section 473, Bharatiya Nagarik Suraksha Sanhita, 2023).

The Court addresses four core questions:

(i) whether remission can be considered suo motu by the executive without an application by the convict or any person on the convict’s behalf where the Government has a policy;

(ii) the permissible nature and limits of conditions attached to remission;

(iii) the legal effect and procedure for revocation/cancellation of remission on alleged breach of conditions; and

(iv) whether reasons must be recorded when applications for remission are granted or refused.

The Court reads procedural safeguards into Section 432 and the BNSS: where a State/UT policy exists, the administration must consider all eligible convicts without insistence on an application; conditions attached must be reasonable, not vague or oppressive, and aim at rehabilitation and public safety; cancellation of remission impacts liberty and therefore requires show-cause, opportunity to be heard and brief recorded reasons; and orders granting or refusing remission must contain brief reasons and be communicated to the convict with legal-aid facilitation. The judgment directs States/UTs lacking an exhaustive policy to frame one within two months and mandates implementation of NALSA’s SOP and active monitoring by Legal Services Authorities.

Keywords: remission; Section 432 CrPC; Section 473 BNSS; conditions of remission; cancellation of remission; reasons for order; NALSA SOP; rehabilitation.

B) CASE DETAILS

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The Court was seized suo motu to examine systemic aspects of executive remission of sentences. The power to remit under Section 432 CrPC and its BNSS analogue is wide but interacts with prison manuals, state policies and constitutional guarantees. Earlier precedents (notably Sangeet v. State of Haryana and Mohinder Singh v. State of Punjab) emphasized the application-driven nature of remission; subsequent decisions (for example Rashidul Jafar v. State of Uttar Pradesh) recognised that a State policy which places a positive duty on the administration to consider eligible prisoners changes the dynamic and requires active consideration rather than passive receipt of applications.

Practical problems emerged: illiterate, indigent or long-incarcerated convicts languishing because of administrative apathy; inconsistent state practices; and the absence of uniform safeguards when remission orders are granted, conditioned or cancelled. NALSA’s SOP (2022) and certain state prison rules (e.g., Karnataka Prison Rules, 1974; Kerala Prison Rules, 1958) were placed before the Court to assist formulation of workable administrative frameworks. The Court’s exercise focused on harmonising executive discretion with principles of fairness, rehabilitation, public safety and the constitutional protection of liberty.

D) FACTS OF THE CASE

The matter arose as a Suo Motu petition tracing recurring litigation where convicts eligible under state policies remained unconsidered unless they or relatives applied, and where cancellation or conditioning of remission generated disputes about procedure and reasoned orders. The Registry placed before the Court a comprehensive note and inputs from NALSA and amicus curiae highlighting: disparate state practices; instances where prison superintendents were or were not required to initiate remission processes under the jail manuals; and cases where conditional remission and its cancellation lacked consistent procedural safeguards.

The Court reviewed statutory text, model and state prison rules, the NALSA SOP and judicial precedents including Mafabhai Motibhai Sagar and Bilkis Yakub Rasool to determine normative rules applicable to remission, conditioning of release, cancellation and the need for state policies and Legal Services Authorities’ participation. The factual canvas was administrative and systemic rather than centred on a single convict’s grievance; the remedy sought was uniform directions to ensure eligible convicts are considered and procedural fairness is observed.

E) LEGAL ISSUES RAISED

1. Whether the appropriate Government may exercise its power to grant remission without an application by the convict or anyone on the convict’s behalf where the Government has a policy for premature release?

2. What is the permissible nature and scope of conditions that may be attached to remission so that they are constitutionally valid?

3. Whether remission may be automatically revoked on breach of conditions, and what procedure is constitutionally mandated before cancellation?

4. Whether orders granting or refusing remission must record reasons and be communicated to the convict with information about remedies and legal aid?

F) PETITIONER / APPELLANT’S ARGUMENTS

The Court acted on its own motion; submissions by amicus and counsel emphasised systemic lacunae. It was argued that where a State policy exists, the administration must proactively identify and process eligible convicts rather than insist on an application, since many convicts lack means or awareness. It was further submitted that conditions must be rehabilitative, not punitive or vague; cancellation impacts liberty and mandates procedural safeguards including a show-cause notice and brief reasons; and that the NALSA SOP should be implemented with monitoring by Legal Services Authorities to ensure access to remedies.

G) RESPONDENT’S ARGUMENTS

State representatives and respondents emphasised executive discretion under Section 432, the need for administrative flexibility to impose conditions for public safety, and reliance on varying state prison rules. Some states contended that remission processes are application-driven and that any attempt to mandate suo motu consideration could impinge on administrative procedures. Concerns were also raised about operational burden; yet there was acknowledgment that fairness and rehabilitation objectives required structured processes.

H) RELATED LEGAL PROVISIONS

i. Section 432, Code of Criminal Procedure, 1973 (power to suspend or remit sentences).
ii. Section 433-A, CrPC (14-year rule for life convicts for certain offences).
iii. Section 433, CrPC (commutation of sentence).
iv. Section 473, BNSS (corresponding to s.432).
v. Relevant state Prison Rules (e.g., Karnataka Prison Rules, 1974; Kerala Prison Rules, 1958).
vi. NALSA SOP on premature release, parole, furlough of prisoners, 2022.

I) JUDGEMENT

The Court held that where the appropriate Government has a policy laying down guidelines for premature release, it is obligatory for that Government to consider the cases of all convicts who become eligible under the policy; in such situations an application by the convict or relatives is not a precondition.

This conclusion follows from principles of equality (Article 14) and the protection of liberty (Article 21), and from earlier jurisprudence in Rashidul Jafar, which recognised that administrative apathy can deny entitled liberty to indigent and incapacitated convicts. The Court directed States/UTs without an exhaustive policy to frame one within two months and allowed incorporation into jail manuals.

On conditions, the Court reaffirmed Mafabhai Motibhai Sagar: conditions are permissible but must be reasonable, not arbitrary, not vague and capable of performance; they must be aimed at checking criminal tendencies and facilitating rehabilitation while factoring in nature of crime, motive, criminal antecedents, public safety and victims’ interests. The Court underscored that conditions should not be so onerous as to nullify the effect of remission.

On revocation, the Court held that cancellation under Section 432(3) affects liberty and therefore triggers natural justice: a show-cause notice specifying grounds, opportunity to reply and be heard, and an order recording brief reasons are mandatory before cancellation; mere registration of FIR or allegation does not automatically justify cancellation—material must substantiate serious breach.

On reasons and communication, the Court read into Section 432 the requirement that all orders granting or refusing remission must contain brief reasons adequate to enable challenge; such orders must be communicated to convicts and copies forwarded to District Legal Services Authorities to facilitate legal aid. The Court directed implementation of the NALSA SOP in letter and spirit, and mandated District Legal Services Authorities to maintain records and the State Legal Services Authorities to create portals for real-time data upload and monitoring. Presiding Judges, when called upon for opinions under Section 432(2), must respond promptly given the liberty stakes.

a. RATIO DECIDENDI

The decisive legal principle is that executive exercise of remission power is not isolated from constitutional fairness: where a State formulates eligibility policy, the executive must actively consider all eligible convicts, and remission processes must incorporate procedural safeguards of natural justice (notice, hearing, brief reasons) because cancellation or refusal impacts a convict’s Article 21 liberty.

Conditions attached to remission are valid only if they are reasonable, not vague, capable of performance and oriented to rehabilitation and public safety. Administrative inaction in the face of an existing policy would amount to arbitrariness violative of Article 14. The interplay of statutory text, prison rules, NALSA SOP and precedents yields the binding obligation on States/UTs to operationalise remission with transparency and remedial access.

b. OBITER DICTA

The Court observed, by way of guidance, that where prison manuals impose duties on superintendents to initiate remission proceedings, those duties must be diligently performed; that trivial breaches should not trigger cancellation; and that NALSA may consider expressly adding a requirement to inform convicts of the right to challenge rejection orders.

The Court also commented on the continued independence of constitutional clemency under Articles 72 and 161, and clarified that Section 433-A is an embargo on remission for certain life convicts for at least 14 years but does not affect Presidential or Gubernatorial clemency powers. These observations, while not strictly necessary to the ratio, elucidate proper administrative practice.

c. GUIDELINES 

The Court issued specific directions:

(1) States/UTs without an exhaustive remission policy must frame one within two months or incorporate it into the jail manual;

(2) where a policy exists, appropriate Governments must consider all eligible convicts without requiring an application;

(3) conditions attached to remission must be reasonable, non-vague, rehabilitative and proportionate;

(4) cancellation of remission requires show-cause, opportunity to reply, and brief recorded reasons;

(5) orders granting/refusing remission must record brief reasons and be communicated immediately to the convict and District Legal Services Authority;

(6) District Legal Services Authorities shall implement the NALSA SOP and maintain eligibility dates and monitor consideration of convicts;

(7) State Legal Services Authorities to develop a real-time portal for data; and

(8) Presiding Judges must furnish opinions promptly when requisitioned under Section 432(2).

J) CONCLUSION & COMMENTS

The judgment is a pragmatic synthesis of statutory text, penal administration realities and constitutional safeguards. It curtails administrative passivity by converting a discretionary, application-driven regime into one requiring proactive State action once a policy exists thereby protecting the liberty of indigent and incapacitated convicts. The Court strikes a balance between public safety and rehabilitative goals by validating conditional remission but circumscribing conditions by reasonableness and capability of performance.

The reading-in of natural justice safeguards for cancellation is constitutionally compelling: liberty once restored cannot be summarily taken away without fair process. Operational directives (NALSA SOP implementation, data portals, proactive prison-superintendent duties) are practical measures likely to reduce litigation and incarceration of eligible convicts. The judgment preserves executive flexibility but anchors it in transparency, reasoned decision-making and accessible remedies, thereby reinforcing the rule of law in the administration of mercy.

J) REFERENCES

a. Important Cases Referred

1. Sangeet & Anr. v. State of Haryana, (2013) 2 SCC 452.
2. Mohinder Singh v. State of Punjab, (2013) 3 SCC 294.
3. Rashidul Jafar v. State of Uttar Pradesh, (2024) 6 SCC 561.
4. Kadir v. State of Uttar Pradesh, SLP (Crl.) No. 4358-59 of 2021.
5. Mafabhai Motibhai Sagar v. State of Gujarat, 2024 SCC OnLine SC 2982.
6. Bilkis Yakub Rasool v. Union of India, (2024) 5 SCC 481.
7. In Re: Policy Strategy for Grant of Bail, Suo Motu Writ Petition (Crl.) No. 4 of 2021, [2025] 2 S.C.R. 1588 : 2025 INSC 239.

b. Important Statutes / Instruments Referred

1. Code of Criminal Procedure, 1973 — Section 432; Section 433; Section 433-A.
2. Bharatiya Nagarik Suraksha Sanhita, 2023 — Section 473; Section 474; Section 475.
3. Karnataka Prison Rules, 1974; Kerala Prison Rules, 1958.
4. NALSA Standard Operating Procedure on premature release, parole, furlough of prisoners, 2022.