IN RE: POLICY STRATEGY FOR GRANT OF BAIL versus

                 [2025] 2 S.C.R. 1588 : 2025 INSC 239

               In Re: Policy Strategy for Grant of Bail
               (Suo Motu Writ Petition (Crl.) No. 4 of 2021)
                              18 February 2025
               [Abhay S. Oka* and Ujjal Bhuyan, JJ.]


                           Issue for Consideration
       The first issue is whether the power to grant remission can be
       exercised without the convict or anyone on behalf of the convict
       applying to the appropriate Government for a grant of remission.
       The second issue is about the nature of conditions imposed
       while granting remission. The third issue is whether there can
       be automatic revocation of remission granted to the convict if he
       commits a breach of the terms and conditions on which remission is
       granted. Lastly, another question is whether there is a requirement
       to record reasons while rejecting applications of the convicts for
       grant of permanent remission.

                                  Headnotes†
       Code of Criminal Procedure, 1973 – s.432 – Bharatiya Nagarik
       Suraksha Sanhita, 2023 – s.473 – Whether the power to grant
       remission can be exercised without the convict or anyone on
       behalf of the convict applying to the appropriate Government
       for a grant of remission:
       Held: Where there is a policy of the appropriate Government
       laying down guidelines for consideration of the grant of premature
       release u/s.432 of the CrPC or Section 473 of the BNSS, it is
       the obligation of the appropriate Government to consider cases
       of all convicts for grant of premature release as and when they
       become eligible for consideration in terms of the policy – In such
       a case, it is not necessary for the convict or his relatives to make
       a specific application for grant of permanent remission – When
       the jail manual or any other departmental instruction issued by
       the appropriate Government contains such policy guidelines, the
       aforesaid direction will apply – Further, direction issued to those
       States and Union Territories that do not have a policy dealing with
       the grant of remission in terms of s.432 of the CrPC or s.473 of
       the BNSS to formulate a policy. [Para 21(a), (b)]

* Author
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                    In Re: Policy Strategy for Grant of Bail


     Code of Criminal Procedure, 1973 – s.432 – Bharatiya Nagarik
     Suraksha Sanhita, 2023 – s.473 – Nature of conditions imposed
     while granting remission:
     Held: The conditions must be such that the same ensures that the
     criminal tendency of the convicts remains in check, they do not
     indulge in the commission of crimes, and they are rehabilitated
     in society – Their proper rehabilitation is most vital as it prevents
     them from going back to their criminal activities – Therefore, it
     can be summarized as: a) Consideration of various factors which
     are mentioned by way of illustration is necessary before finalizing
     the terms and conditions; b) The conditions must aim at ensuring
     that the criminal tendencies, if any, of the convict remain in check
     and the convict rehabilitates himself in society; c) The conditions
     should not be so oppressive or stringent that the convict is not
     able to take advantage of the order granting permanent remission;
     and d) The conditions cannot be vague and should be capable of
     being performed. [Para 13]

     Code of Criminal Procedure, 1973 – s.432 – Bharatiya Nagarik
     Suraksha Sanhita, 2023 – s.473 – Whether there can be
     automatic revocation of remission granted to the convict if
     he commits a breach of the terms and conditions on which
     remission is granted:
     Held: In the case of Mafabhai Motibhai Sagar, it was held that
     an order granting permanent remission cannot be withdrawn or
     cancelled without giving an opportunity of being heard to the
     convict – An order of cancellation of permanent remission must
     contain brief reasons. [Para 21(e)]

     Code of Criminal Procedure, 1973 – s.432 – Bharatiya
     Nagarik Suraksha Sanhita, 2023 – s.473 – Whether there is a
     requirement to record reasons while rejecting applications of
     the convicts for grant of permanent remission:
     Held: The power to grant premature release must be exercised
     in a fair and reasonable manner – It affects the convict’s liberty
     guaranteed u/Art.21 of the Constitution – Therefore, the requirement
     of recording reasons either for granting or rejecting the prayer for
     permanent remission will have to be read into the provisions of
     s.432 of the CrPC and s.473 of the BNSS – Principles of natural
     justice must be read into the provisions of s.432 of the CrPC –
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    Furthermore, it follows 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. [Paras 17, 18]

    Standard Operating Procedure on legal assistance,
    operationalisation, and co-ordination in improving the
    process of premature release, parole, furlough of prisoners,
    2022 – Formulated by National Legal Services Authority
    (NALSA) – Direction issued:
    Held: The District Legal Services Authorities directed to implement
    NALSA SOP in its true letter and spirit. [Para 21(f)]

    Code of Criminal Procedure, 1973 – s.432 – Bharatiya Nagarik
    Suraksha Sanhita, 2023 – s.473 – Directions issued:
    Held: The District Legal Services Authorities shall also monitor
    implementation of guidelines for consideration of the grant of
    premature release u/s.432 of the CrPC or s.473 of the BNSS,
    where there is a policy of the appropriate Government laying down
    guidelines – For this purpose, the District Legal Services Authorities
    shall maintain the relevant date of the convicts and as and when
    they become eligible to a consideration for grant of premature
    release – The State Legal Services Authorities directed to create
    a portal on which the data as aforesaid can be uploaded on real
    time basis. [Para 21(g)]

    Code of Criminal Procedure, 1973 – s.432 – Bharatiya Nagarik
    Suraksha Sanhita, 2023 – s.473 – Presiding Officer’s duty:
    Held: When the Presiding officer’s opinion is sought as per Sub-
    Sections (2) of s.432 of the CrPC and s.473 of the BNNS, the
    Presiding Officer must submit his opinion at the earliest considering
    the fact that the issue of liberty of the convict is involved. [Para 20]

                              Case Law Cited
    Sangeet and Anr. v. State of Haryana [2012] 13 SCR 85 : (2013)
    2 SCC 452; Mohinder Singh v. State of Punjab [2013] 3 SCR
    90 : (2013) 3 SCC 294; Rashidul Jafar v. State of Uttar Pradesh
    [2022] 8 SCR 475 : (2024) 6 SCC 561; Kadir v. State of Uttar
    Pradesh, Special Leave Petition (Crl.) No. 4358-59 of 2021;
[2025] 2 S.C.R.                                                        1591

                    In Re: Policy Strategy for Grant of Bail


     Mafabhai Motibhai Sagar v. State of Gujarat, 2024 SCC OnLine
     SC 2982; Bilkis Yakub Rasool v. Union of India [2024] 1 SCR
     743 : (2024) 5 SCC 481 – referred to.

                                 List of Acts
     Code of Criminal Procedure, 1973; Bharatiya Nagarik Suraksha
     Sanhita, 2023; Karnataka Prison Rules, 1974; Kerala Prison
     Rules, 1958.

                               List of Keywords
     Remission; Section 432 of Code of Criminal Procedure, 1973;
     Section 473 of Bharatiya Nagarik Suraksha Sanhita, 2023; Power
     to grant remission; Conditions for granting remission; Automatic
     revocation of remission; Revocation of grant of remission;
     Requirement of recording reasons; Standard Operating Procedure
     on legal assistance, operationalisation, and co-ordination in
     improving the process of premature release, parole, furlough of
     prisoners, 2022.

                              Case Arising From
     CIVIL ORIGINAL/APPELLATE JURISDICTION: Suo Motu Writ
     Petition (Criminal) No. 4 of 2021
     (Under Article 32 of The Constitution of India)
     With
     Special Leave Petition (Crl.) No. 529 of 2021

                           Appearances for Parties
     By Courts Motion.
     Ms. Liz Mathew, Sr. Adv./Amicus Curiae, Devansh A. Mohta,
     Amicus Curiae, Navneet R., Ms. Mallika Agarwal, Ms. Alankrita
     Sinha, Utkarsh Singhal.
     Advs. for the appearing parties:
     Lokesh Sinhal, Ms. Garima Prasad, Arunabh Chowdhury,
     Sr. A.A.Gs., Amit Sharma, Ms. Sansriti Pathak, A.A.Gs., Amit
     Kumar, Sr. Adv./AG, Ravi Sharma, Shekhar Raj Sharma, Kartikeya
     Rastogi, D.A.Gs., Ashok Kumar Panda, P.V. Surendranath, Sanjay
     Hegde, Tapesh Kumar Singh, Mrs. Shirin Khajuria, Sr. Advs.,
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    Chanchal Kumar Ganguli, Soumitra G. Chaudhuri, Harshad V.
    Hameed, Dileep Poolakkot, Mrs. Ashly Harshad, Sawan Kumar
    Shukla, Ms. Lekha Sudhakaran, Prashant Singh, Mrs. Prerna
    Dhall, Ms. Karishma Rajput, Gopinadh Mr, P. I. Jose, Avijit Mani
    Tripathi, T.K. Nayak, Daniel S. Lyngdoh, Ms. Marbiang Khongwir,
    Upendra Mishra, P.S.Negi, Yashvardhan, Apoorv Shukla, Karan
    Sharma, Mahfooz Ahsan Nazki, Kedar Nath Tripathy, Sameer
    Abhyankar, Rahul Kumar, Aakash Thakur, Aryan Srivastava,
    Krishna Rustogi, Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua,
    Ms. Aparna Singh, Akshay Amritanshu, Ms. Nidhi Narwal,
    Ms. Himanshi Shakya, Nikunj Gupta, Ms. Swati Mishra, Ms. Drishti
    Saraf, Ms. Pragya Upadhyay, Ms. Rooh-e-hina Dua, Gurmeet
    Singh Makker, Gautam Narayan, Shuvodeep Roy, Saurabh
    Tripathi, Deepayan Dutta, D. L. Chidananda, Ms. Vanshaja Shukla,
    Ms. Ankeeta Appanna, Ms. Anubha Dhulia, Sanjai Kumar Pathak,
    Mrs. Shashi Pathak, Arvind Kumar Tripathi, Sarad Kumar Singhania,
    Amit Sharma, Piyush Beriwal, Mukesh Kumar Maroria, B K Satija,
    Raghav Sharma, Anuj Srinivas Udupa, Sarthak Karol, Sachin
    Patil, Shibashish Misra, Ms. Devina Sehgal, Yatharth Kansal,
    Pradeep Misra, Daleep Dhyani, Suraj Singh, V. K. Biju, Amlendu
    Kumar Singh, Ms. Enakshi Mukhopadhyay Siddhanta, Ravi
    Kumar S., Ms. Prerna Singh, Guntur Pramod Kumar, D.Kumanan,
    Ms. Deepa S, Sheikh F Kalia, Veshal Tyagi, Chinmay Anand
    Panigrahi, Piyush Beriwal, B.K. Satija, Ms. Mrinal Elkar Mazumdar,
    Mukesh Kr.Verma, Ms. Mrinal Elkar Mazumdar, Neeraj Kr.Sharma,
    Vineet Singh, Ms. Indira Bhakar, Ms. Kanu Agrawal, Varun Chugh,
    Bhuvan Kapoor, Vatsal Joshi, Shreekant Neelappa Terdal, V
    Balachandran, Siddharth Naidu (for M/s. Ksn & Co.), Samir Ali
    Khan, Pranjal Sharma, Kashif Irshad Khan, Pashupathi Nath
    Razdan, Sarthak Raizada, Rajan K. Choursia, Sahil Tagotra, Sujay
    Jain, Zubin Dash, Vishnu Sharma, Ms. Madhusmita Bora, Dipankar
    Singh, Ms. K. Enatoli Sema, Ms. Limayinla Jamir, Amit Kumar
    Singh, Ms. Chubalemla Chang, Prang Newmai, M/S. Arputham
    Aruna And Co, Vikas Chaudhary, Milind Kumar, Ms. Vishakha,
    Anando Mukherjee, Shwetank Singh, Aravindh S., Akshay Gupta,
    Aadithya Aravindh, Gopal Jha, Shreyash Bhardwaj, Umesh Kumar
    Yadav, Dhirendra Kumar Mishra, Md. Sheikh Khalid Saifullah,
    Sunil Srivastava, Rameshwar Prasad Goyal, Abhimanyu Tewari,
    Mrs. Eliza Bar, Mrigank Prabhakar, Ms. Sakshi Banga, Siddharth
    Sahu, Ms. Sindoora Vnl, Ms. Thithiksha Padmam, Amol Chitravanshi,
    Prashant Shrikant Kenjale, Ms. S Soorya Gayathry, Pai Amit,
[2025] 2 S.C.R.                                                         1593

                    In Re: Policy Strategy for Grant of Bail


     Pankhuri Bhardwaj, Kushal Dube, Dr. Sumnat Bharadwaj, Vedant
     Bharadwaj, Ms. Mridula Ray Bharadwaj, D.M.Sharma, Ms. Surbhi
     Sharma, Kanhaiya Singhal, Ms. Nivedita Tiwari, Debojit Borkakati,
     Ms. Swati Ghildiyal, Ms. Deepanwita Priyanka, Ms. Devyani Bhatt,
     Ms. Neha Singh, Ms. Asmita Singh, Tushar Nair, Anirudh Anand,
     Punishk Handa, Mukesh K. Giri, Mandaar Mukesh Giri, Ahanthem
     Henry, Ahanthem Rohen Singh, Mohan Singh, Aniket Rajput,
     Ms. Khoisnam Nirmala Devi, Kumar Mihir, Shovan Mishra,
     Ms. Bipasa Tripathy, Ms. Inderdeep Kaur Raina, Ms. Ritvika
     Poswal, Akshay Girish Ringe, Partha Sil, Ms. Sayani Bhattacharya,
     Srijit Datta, Bharat Bagla, Siddharth Dharmadhikari, Aaditya
     Aniruddha Pande, Ashwarya Sinha, Shivansh Bharatkumar
     Pandya, Pushpinder Singh, Divyakant Lahoti, Ms. Praveena Bisht,
     Ms. Vindhya Mehra, Kartik Lahoti, Kumar Vinayakam Gupta, Adith
     Menon, Ms. Samridhi Bhatt, Ms. Shreya Gokel, Ms. Anushka
     Awasthi, Siddharth Tripathi, Ms. Akanksha Soni, Pukhrambam
     Ramesh Kumar, Karun Sharma, Ms. Anupama Ngangom,
     Ms. Rajkumari Divyasana, Ms. Rashmi Nandakumar, Ms. Yashmita
     Pandey, Prashant Singh, Mrs. Prerna Dhall, Ms. Karishma Rajput,
     Gopinadh Mr, Ms. Swati Tiwari, Ms. Bhavana Duhoon.

                Judgment / Order of the Supreme Court

                                  Judgment

     Abhay S. Oka, J.

1)   We are dealing with the power of the appropriate Government to
     remit the whole or a part of the sentence of the convicts. A detailed
     note on the subject has been submitted by Ms. Liz Mathew, learned
     senior counsel appointed as amicus curiae, duly assisted by learned
     counsel Shri Navneet R. We have heard the submissions of the
     learned amicus. As far as the remission of the sentence of the
     convicts is concerned, there are provisions under Section 432 of
     the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) and
     Section 473 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for
     short, ‘the BNSS’). Section 432 of the CrPC reads thus:
           “432. Power to suspend or remit sentences.—(1) When
           any person has been sentenced to punishment for an
           offence, the appropriate Government may, at any time,
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        without conditions or upon any conditions which the person
        sentenced accepts, suspend the execution of his sentence
        or remit the whole or any part of the punishment to which
        he has been sentenced.
        (2) Whenever an application is made to the appropriate
        Government for the suspension or remission of a sentence,
        the appropriate Government may require the presiding
        Judge of the Court before or by which the conviction was
        had or confirmed, to state his opinion as to whether the
        application should be granted or refused, together with
        his reasons for such opinion and also to forward with the
        statement of such opinion a certified copy of the record
        of the trial or of such record thereof as exists.
        (3) If any condition on which a sentence has been
        suspended or remitted is, in the opinion of the appropriate
        Government, not fulfilled, the appropriate Government may
        cancel the suspension or remission, and thereupon the
        person in whose favour the sentence has been suspended
        or remitted may, if at large, be arrested by any police officer,
        without warrant and remanded to undergo the unexpired
        portion of the sentence.
        (4) The condition on which a sentence is suspended or
        remitted under this section may be one to be fulfilled by
        the person in whose favour the sentence is suspended
        or remitted, or one independent of his will.
        (5) The appropriate Government may, by general rules
        or special orders, give directions as to the suspension of
        sentences and the conditions on which petitions should
        be presented and dealt with:
        Provided that in the case of any sentence (other than a
        sentence of fine) passed on a male person above the
        age of eighteen years, no such petition by the person
        sentenced or by any other person on his behalf shall be
        entertained, unless the person sentenced is in jail, and—
             (a) where such petition is made by the person
             sentenced, it is presented through the officer in
             charge of the jail; or
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                    In Re: Policy Strategy for Grant of Bail


                (b) where such petition is made by any other person,
                it contains a declaration that the person sentenced
                is in jail.
           (6) The provisions of the above sub-sections shall also
           apply to any order passed by a Criminal Court under any
           section of this Code or of any other law which restricts
           the liberty of any person or imposes any liability upon him
           or his property.
           (7) In this section and in Section 433, the expression
           “appropriate Government” means,—
                (a) in cases where the sentence is for an offence
                against, or the order referred to in sub-section (6) is
                passed under, any law relating to a matter to which
                the executive power of the Union extends, the Central
                Government;
                (b) in other cases, the Government of the State
                within which the offender is sentenced or the said
                order is passed.”
     The corresponding provision under the BNSS is Section 473. It is
     substantially similar to Section 432 of the CrPC. Therefore, we are
     not reproducing it.
2)   Thus, the power conferred on the appropriate Government is of
     remitting the whole or part of the punishment to which an accused
     has been sentenced with or without conditions. There is also a power
     vested in the appropriate Government to suspend the execution of
     the sentence. However, we are dealing only with the power to remit
     the whole or part of the sentence.
3)   The power under Section 432 of the CrPC is circumscribed by Section
     433-A. It provides that where a sentence of imprisonment for life is
     imposed on conviction of a person for an offence for which death
     is one of the punishments provided or where a sentence of death
     imposed on a person has been commuted under Section 433 into
     one of imprisonment for life, the appropriate Government cannot grant
     remission unless the convict has served at least fourteen years of
     actual imprisonment. There is an identical provision in Section 475
     of the BNSS. This is an embargo on the power of the appropriate
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      Government under Section 432 of the CrPC. We may note that the
      power of the President of India under Article 72 of the Constitution
      of India (for short, ‘the Constitution’) and the power of the Governor
      under Article 161 of the Constitution to grant pardon, commute the
      sentence, or remit the sentence remains unaffected by Section 433-A
      of the CrPC or Section 475 of the BNSS.
4)    In addition to the power under Section 432 of the CrPC, there is a
      power vesting in the appropriate Government under Section 433 of
      the CrPC to commute the sentence. There is a similar power under
      Section 474 of the BNSS. Commuting a sentence is independent of
      the power to remit a sentence. We are not dealing with the power
      to commute sentences.
5)    The first issue is whether the power to grant remission can be
      exercised without the convict or anyone on behalf of the convict
      applying to the appropriate Government for a grant of remission.
      The second issue is about the nature of conditions imposed while
      granting remission. The third issue is whether there can be automatic
      revocation of remission granted to the convict if he commits a breach
      of the terms and conditions on which remission is granted. Lastly,
      another question is whether there is a requirement to record reasons
      while rejecting applications of the convicts for grant of permanent
      remission.

      WHETHER APPROPRIATE GOVERNMENT CAN CONSIDER THE
      CASE OF A CONVICT FOR GRANT OF REMISSION WITHOUT
      AN APPLICATION MADE ON BEHALF OF THE CONVICT
6)    Sub-Section (2) of Section 432 of the CrPC and Sub-Section (2) of
      Section 473 of the BNSS contemplate an application being made
      for grant of remission. There are two decisions of this Court dealing
      with the requirement of making an application. The first decision is
      in the case of Sangeet and Anr. v. State of Haryana1. Paragraphs
      59 to 61 of the said decision read thus:
             “Procedural check on arbitrary remissions
             59. There does not seem to be any decision of this Court
             detailing the procedure to be followed for the exercise of


1    (2013) 2 SCC 452
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                    In Re: Policy Strategy for Grant of Bail


           power under Section 432 CrPC. But it does appear to
           us that sub-section (2) to sub-section (5) of Section 432
           CrPC lay down the basic procedure, which is making
           an application to the appropriate Government for the
           suspension or remission of a sentence, either by the
           convict or someone on his behalf. In fact, this is what
           was suggested in Samjuben Gordhanbhai Koli v. State of
           Gujarat [(2010) 13 SCC 466 : (2011) 1 SCC (Cri) 1180]
           when it was observed that since remission can only be
           granted by the executive authorities, the appellant therein
           would be free to seek redress from the appropriate
           Government by making a representation in terms of
           Section 432 CrPC.
           60. Section 432 CrPC reads as follows:
           “432.Power to suspend or remit sentences.—
           …………………..……………………………………”
           61. It appears to us that an exercise of power by the
           appropriate Government under sub-section (1) of
           Section 432 CrPC cannot be suo motu for the simple
           reason that this sub-section is only an enabling
           provision. The appropriate Government is enabled to
           “override” a judicially pronounced sentence, subject to
           the fulfilment of certain conditions. Those conditions are
           found either in the Jail Manual or in statutory rules. Sub-
           section (1) of Section 432 CrPC cannot be read to enable
           the appropriate Government to “further override” the
           judicial pronouncement over and above what is permitted
           by the Jail Manual or the statutory rules. The process of
           granting “additional” remission under this section is set into
           motion in a case only through an application for remission
           by the convict or on his behalf. On such an application
           being made, the appropriate Government is required to
           approach the Presiding Judge of the court before or by
           which the conviction was made or confirmed to opine
           (with reasons) whether the application should be granted
           or refused. Thereafter, the appropriate Government may
           take a decision on the remission application and pass
           orders granting remission subject to some conditions, or
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             refusing remission. Apart from anything else, this statutory
             procedure seems quite reasonable inasmuch as there is
             an application of mind to the issue of grant of remission.
             It also eliminates “discretionary” or en masse release of
             convicts on “festive” occasions since each release requires
             a case-by-case basis scrutiny.”
                                                     (emphasis added)

      Even the decision in the case of Mohinder Singh v. State of Punjab2,
      contemplates an application to be made for grant of permanent
      remission. The majority view in the said decision holds that suo
      motu power to grant remission cannot be exercised. As specified in
      Sub-Section (2) of both Sections 432 and 473, there is a requirement
      to make an application. Since the convict will be in jail, any of his
      relatives can make an application in terms thereof.
7)    The provisions for premature release have been incorporated in prison
      manuals of various States. In fact, in the Model Prison Manual, it is
      provided that the superintendent-in-charge of a prison has to initiate
      a case of a prisoner for grant of premature release. Similarly, in the
      prison manuals of the States of Goa, Nagaland, Mizoram, Tripura,
      Himachal Pradesh, Haryana, Jharkhand, NCT of Delhi, Odisha, and
      Uttarakhand, there is a provision that requires superintendents of
      prisons to initiate proceedings for grant of permanent remission.
8)    In the cases of Sangeet1 and Mohinder Singh2, this Court did not
      consider a scenario where a policy was framed by the appropriate
      Government for grant of premature release or grant of remission. This
      Court considered this factual contingency in the case of Rashidul
      Jafar v. State of Uttar Pradesh3. In Paragraphs 17 and 18, this
      Court held thus:
             “17. The implementation of the policy for premature release
             has to be carried out in an objective and transparent
             manner as otherwise it would impinge on the constitutional
             guarantees under Articles 14 and 21. Many of these life
             convicts who have suffered long years of incarceration



2    (2013) 3 SCC 294
3    (2024) 6 SCC 561
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                    In Re: Policy Strategy for Grant of Bail


           have few or no resources. Lack of literacy, education and
           social support structures impede their right to access legal
           remedies. Once the State has formulated its policy defining
           the terms for premature release, due consideration in
           terms of the policy must be given to all eligible convicts.
           The constitutional guarantees against arbitrary treatment
           and of the right to secure life and personal liberty must
           not be foreclosed by an unfair process of considering
           applications for premature release in terms of the policy.
           18. Significantly, the policy has been amended to
           remove the requirement of convicts submitting an
           application for premature release and instead places
           the responsibility on the officers of the State to
           consider eligible prisoners. The prison administration,
           legal services authorities at the district and State level
           and officers of the police department and the State must
           diligently ensure that cases of eligible prisoners are
           considered on the basis of policy parameters. We have
           gained a distinct impression, based on the cases which
           have come before the Court here and even earlier that there
           is a general apathy towards ensuring that the rights which
           have been made available to convicts who have served
           out their sentences in terms of the policy are realised.
           This results in the deprivation of liberty of those who are
           entitled to be released. They languish in overcrowded jails.
           Their poverty, illiteracy and disabilities occasioned by long
           years of incarceration are compounded by the absence
           of supportive social and legal structures. The promise of
           equality in our Constitution would not be fulfilled if liberty
           were to be conditional on an individual’s resources, which
           unfortunately many of these cases provide hard evidence
           of. This situation must change and hence this Court has
           had to step in. We now proceed to formulate peremptory
           directions.”
                                                     (emphasis added)

     When a State Government or a Union Territory has adopted a policy
     for the grant of permanent remission which incorporates conditions
     for eligibility, it becomes an obligation of the State Government or
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     the Union Territory to consider cases of all eligible convicts for the
     grant of permanent remission as per the policy adopted. If such a
     policy exists, and if the State Government or the Government of
     Union Territory raises a contention that relief will be granted only to
     those who apply as per policy, it will amount to saying that even if
     convicts are eligible for consideration in terms of the policies, their
     cases will not be considered in terms of 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.
9)   At this stage, we may note here that the National Legal Services
     Authority (NALSA) has formulated a Standard Operating Procedure
     on legal assistance, operationalisation, and co-ordination in improving
     the process of premature release, parole, furlough of prisoners, 2022
     (for short, ‘the SOP’). The SOP has been formulated as per the
     directions issued by this Court in Special Leave Petition (Crl.) No.
     4358-59 of 2021 in the case of Kadir v State of Uttar Pradesh. The
     SOP contemplates prison superintendents of all the prisons preparing
     a list of all life convicts and other convicts who will be entitled to be
     considered for premature release in immediate four months as per
     the eligibility provided under the state policy. It is thus apparent that
     after the preparation of a list of all life convicts and other convicts
     who will be entitled to be considered for premature release, the said
     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 by the appropriate Government. Since we are
     on the SOP made by the NALSA, we may note here that the SOP
     provides for appointing an advocate for the purposes of challenging
     the order refusing to grant permanent remission. We request NALSA
     to consider incorporating in the SOP the requirement of bringing to
     the notice of the convict the fact that the convicts have the liberty
     to challenge the order of rejection of grant of premature release.

     THE NECESSITY OF HAVING A POLICY
10) The power under Section 432 of the CrPC is to be exercised in a fair
    and reasonable manner. If there is neither a policy nor any Regulations
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     for exercising the power under Section 432 of the CrPC, there is a
     possibility that the authorities will not exercise their power in a fair
     and rational manner. To ensure that the power is not exercised in
     an arbitrary manner, all the states that do not have an exhaustive
     policy on this aspect must come up with an exhaustive policy within
     two months from today. It can be either a separate policy or it can
     be incorporated into the prison manuals.

     POWER TO GRANT CONDITIONAL REMISSION
11) On a plain reading of sub-Section (1) of Section 432 of the CrPC
    and the corresponding provision under the BNSS, the appropriate
    Government has the power to grant remission without imposing
    any condition or subject to certain conditions. Therefore, there
    cannot be any doubt that a conditional order can be passed by the
    appropriate Government granting permanent remission. Different
    States have different provisions in this regard. Rule 40 of Karnataka
    Prison Rules, 1974 provides for an appropriate government granting
    remission under Section 432 unconditionally, and once it is granted,
    it cannot be forfeited under any circumstances. Under Rule 547 of
    the Kerala Prison Rules, 1958, conditions have been incorporated
    for the grant of remission, such as executing a bond and regular
    reporting to the Probation Officer, etc. There are provisions made
    in the policies of some other States incorporating the requirement
    of passing conditional orders of permanent remission.
12) In the case of Mafabhai Motibhai Sagar v. State of Gujarat4, this
    Court dealt with the nature of conditions which could be imposed. In
    clause (iv) of paragraph 17 of the said decision, this Court held thus:
            “(iv) Conditions imposed while exercising the power under
            sub-section (1) of Section 432 or sub-section (1) of Section
            473 of the BNSS must be reasonable. If the conditions
            imposed are arbitrary, the conditions will stand vitiated
            due to violation of Article 14. Such arbitrary conditions
            may violate the convict’s rights under Article 21 of the
            Constitution;”
13) While granting remission, reasonable conditions can be imposed.



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     The conditions must be such that they are 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. Even the impact on
     society and the victims of the offence needs to be considered while
     determining the terms and conditions. In short, the conditions must
     be such that the same ensures that the criminal tendency of the
     convicts remains in check, they do not indulge in the commission of
     crimes, and they are rehabilitated in society. Their proper rehabilitation
     is most vital as it prevents them from going back to their criminal
     activities. Therefore, to summarise:
     a)   Consideration of various factors which are mentioned by way
          of illustration is necessary before finalizing the terms and
          conditions;
     b)   The conditions must aim at ensuring that the criminal tendencies,
          if any, of the convict remain in check and the convict rehabilitates
          himself in society;
     c)   The conditions should not be so oppressive or stringent that
          the convict is not able to take advantage of the order granting
          permanent remission; and
     d)   The conditions cannot be vague and should be capable of
          being performed.

     REVOCATION OF GRANT OF REMISSION
14) Now, we deal with the issue of breach of conditions on which
    remission is granted. The question is, what is the legal effect of a
    breach of terms and conditions on which remission has been granted.
    The issue has been dealt with in the case of Mafabhai Motibhai
    Sagar4. In clauses (v) and (vi) of paragraph 17 of the said decision,
    it was held thus:
          “(v) The effect of remitting the sentence, in part or full,
          results in the restoration of liberty of a convict. If the order
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           granting remission is to be cancelled or revoked, it will
           naturally affect the liberty of the convict. The reason is
           that when action is taken under sub-section (3) of Section
           432 of the CrPC or sub-section (3) of Section 473 of the
           BNSS, it results in the convict being taken to prison for
           undergoing the remaining part of the sentence. Therefore,
           this drastic power cannot be exercised without following
           the principles of natural justice. A show cause notice must
           be served on the convict before taking action to withdraw/
           cancel remission. The show cause notice must contain
           the grounds on which action under subsection (3) of
           Section 432 of the CrPC or sub-section (3) of Section 473 of
           BNNS is sought to be taken. The concerned authority must
           give the convict an opportunity to file a reply and of being
           heard. After that, the authority must pass an order stating
           the reasons in brief. The convict can always challenge the
           order of cancellation of remission by adopting a remedy
           under Article 226 of the Constitution of India.; and
           (vi) Registration of a cognizable offence against the convict,
           per se, is not a ground to cancel the remission order. The
           allegations of breach of condition cannot be taken at
           their face value, and whether a case for cancellation
           of remission is made out will have to be decided in the
           facts of each case. Every case of breach cannot invite
           cancellation of the order of remission. The appropriate
           Government will have to consider the nature of the
           breach alleged against the convict. A minor or a trifling
           breach cannot be a ground to cancel remission. There
           must be some material to substantiate the allegations
           of breach. Depending upon the seriousness and gravity
           thereof, action can be taken under sub-section (3) of
           Section 432 of the CrPC or sub-section (3) of Section
           473 of the BNSS of cancellation of the order remitting
           sentence.”
                                                     (emphasis added)

15) In the light of the provisions of the CrPC and the BNSS, there is a
    power vesting in the appropriate Government to cancel the remission.
    The cancellation can be only on the grounds of the breach of the
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     terms and conditions on which the remission is granted. In case
     of cancellation, the convict is required to undergo the remaining
     sentence. The test to be applied and the procedure to be followed
     are set out in clauses (v) and (vi) of paragraph 17 of the decision
     of this Court in the case of Mafabhai Motibhai Sagar4.
16) Even while passing an order of cancellation of the order of remission,
    the appropriate Government must record brief reasons. 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 convict must
    be given a show cause notice stating the grounds for cancellation
    and he 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.

     REQUIREMENT OF RECORDING REASONS
17) The power to grant premature release must be exercised in a fair
    and reasonable manner. It affects the convict’s liberty guaranteed
    under Article 21 of the Constitution. Therefore, the requirement
    of recording reasons either for granting or rejecting the prayer for
    permanent remission will have to be read into the provisions of
    Section 432 of the CrPC and Section 473 of the BNSS. Principles
    of natural justice must be read into the provisions of Section 432
    of the CrPC. In any case, in the case of Bilkis Yakub Rasool v.
    Union of India5 in paragraph 222.8, this Court held that the reasons
    for grant or refusal of remission should be clearly delineated in the
    order. Therefore, the requirement to record reasons exists. Brief
    reasons must be recorded, which are sufficient to enable the convict
    to understand why his prayer for remission has been rejected. This
    enables him to challenge the order of rejection.
18) Furthermore, it follows 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


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     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 SOP OF NALSA
19) The SOP issued by NALSA on the subject of premature release
    is very exhaustive and needs to be implemented in its true letter
    and spirit. More often than not, we have noticed that the convicts
    whose prayer for premature release is rejected are not well informed.
    Writ petitions are being filed in this court wherein either the facts
    are not fully stated, or there is suppression of facts. The reason
    is that most of the convicts are placed in such a position that they
    find it difficult to give correct information to their advocates. Clause
    4.3 of the NALSA SOP is of utmost importance and needs strict
    implementation.

     PRESIDING OFFICER’S DUTY
20) When the Presiding officer’s opinion is sought as per Sub-Sections
    (2) of Section 432 of the CrPC and Section 473 of the BNNS, the
    Presiding Officer must submit his opinion at the earliest considering
    the fact that the issue of liberty of the convict is involved.
21) We, therefore, record the following conclusions:
     a)    Where there is a policy of the appropriate Government laying
           down guidelines for consideration of the grant of premature
           release under Section 432 of the CrPC or Section 473 of the
           BNSS, it is the obligation of the appropriate Government to
           consider cases of all convicts for grant of premature release as
           and when they become eligible for consideration in terms of the
           policy. In such a case, it is not necessary for the convict or his
           relatives to make a specific application for grant of permanent
           remission. When the jail manual or any other departmental
           instruction issued by the appropriate Government contains such
           policy guidelines, the aforesaid direction will apply;
     b)    We direct those States and Union Territories that do not have
           a policy dealing with the grant of remission in terms of Section
           432 of the CrPC or Section 473 of the BNSS to formulate a
           policy within two months from today;
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     c)   Appropriate Government has the power to incorporate
          suitable conditions in an order granting permanent remission.
          Consideration of various factors, which are mentioned in the
          paragraph 13 above by way of illustration, is necessary before
          finalizing the conditions. The conditions must aim at ensuring
          that the criminal tendencies, if any, of the convict remain in
          check and that the convict rehabilitates himself in the society.
          The conditions should not be so oppressive or stringent that
          the convict is not able to take advantage of the order granting
          permanent remission. The conditions cannot be vague and
          should be capable of being performed;
     d)   Order granting or refusing the relief of permanent remission
          must contain brief reasons. The order containing reasons
          should be immediately communicated to the convict through
          the office of the concerned prison. The copies thereof should
          be forwarded to the Secretaries of the concerned District Legal
          Services Authorities. It is the duty of the prison authorities to
          inform the convict that he has the right to challenge the order
          of rejection of the prayer for the grant of remission.
     e)   As held in the case of Mafabhai Motibhai Sagar4, an order
          granting permanent remission cannot be withdrawn or cancelled
          without giving an opportunity of being heard to the convict.
          An order of cancellation of permanent remission must contain
          brief reasons;
     f)   The District Legal Services Authorities shall endeavour to
          implement NALSA SOP in its true letter and spirit.
     g)   Further, the District Legal Services Authorities shall also monitor
          implementation of conclusion (a) as recorded above. For this
          purpose, the District Legal Services Authorities shall maintain
          the relevant date of the convicts and as and when they become
          eligible to a consideration for grant of premature release, they
          shall do the needful in terms of conclusion (a). The State Legal
          Services Authorities shall endeavour to create a portal on which
          the data as aforesaid can be uploaded on real time basis.
22) In terms of what we have held earlier, various issues raised regarding
    the grant of permanent remission stand answered on the above
    terms. Other issues will be considered on the dates already fixed.
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                    In Re: Policy Strategy for Grant of Bail


23) A copy of this judgment shall be forwarded to NALSA which in turn
    will forward the same to the Legal Service Authorities of the States
    and Union Territories to enable them to monitor implementation of
    the directions issued under this Judgment.
24) We must record our appreciation for the assistance rendered by Ms.
    Liz Mathew, learned senior counsel and Shri Navneet R.

     Result of the case: Directions issued.




     †
         Headnotes prepared by: Ankit Gyan