States bound to consider remission of convicts even without application: Supreme Court

The Supreme Court recently directed that state governments and union territories (UTs) that have a policy for permanent remission of convicts are obligated to implement the same even without an application by the convict or his family [In Re: Policy Strategy for Grant of Bail]..The bench of Justices AS Oka and Ujjal Bhuyan underscored that if a remission policy exists, and if the state or UT raises a contention that relief will be granted only to those who apply as per the policy,"Such conduct on the part of the States will be discriminatory and arbitrary and amount to a violation of Article 14 of the Constitution. The power under Section 432(1) must be exercised in a fair and reasonable manner. Therefore, whenever there is a policy for consideration of cases for permanent remission, it becomes an obligation of the State to consider cases of every eligible convict under the policy.".The Court also directed those states and union territories that do not have a policy dealing with the grant of remission to formulate a policy within two months..The judgment was passed in the suo motu case concerning bail policy. Today's verdict dealt with the remission policy of states, how to exercise it without an application by the convict, and whether some conditions can be imposed while granting remission..The Court held that the state must prepare a list of all life convicts and other convicts who will be entitled for premature release. This list must be regularly forwarded by the prison superintendents to the appropriate government so that the case of premature release of such convicts is considered.Though the Bench accepted that while granting remission, reasonable conditions can be imposed, it clarified that such conditions must be "capable of being complied with.""The conditions cannot be vague. The conditions cannot be oppressive. When a convict is released by granting relief of permanent remission, it is necessary to ensure that he is rehabilitated in society. It is necessary to consider the nature of the crime he committed. To fix terms and conditions, it is necessary to ascertain the motive for committing the crime for which he was punished. Even criminal background needs to be taken into consideration. Another concern that must be taken care of is public safety," the judgment stated..Further, it directed that if an order of cancellation of remission is passed, brief reasons must be recorded for the same."The reason is it takes away the liberty granted to the convicts. When an order of remission is cancelled, it affects the right of the convict to liberty under the Constitution. Therefore, the requirement of recording reasons must be read into the provisions of Sub-Sections (2) of Section 432 of the CrPC and Section 473 of the BNSS," the judgment reads.The Court held that the convict must be given a show cause notice stating the grounds for cancellation and must be provided an opportunity to file a reply."If this is not read into the statute, the convict will not be in a position to defend the proceedings.".It went on to state that the order passed by the appropriate government of either granting or rejecting the prayer for remission must be communicated to the convict. "If the prayer is refused, while providing a copy of the order to the convict, he must be informed that he has a right to challenge the order. A copy of the order rejecting the prayer must be immediately provided to the Secretary of the District Legal Services Authority so that legal aid can be offered to the prisoner to challenge the order.".The Court has directed the district legal services authorities to maintain a record of when convicts become eligible for grant of premature release. State legal services authorities were directed to create a portal on which this data can be uploaded on real-time basis. .Senior Advocate Liz Mathew appeared as amicus curiae. She was assisted by Advocate Navneet R..[Read Judgment]