The Supreme Court has clarified that remission policies grounded in the constitutional power of the Governor under Article 161 cannot be superseded by later statutory policies framed under the Code of Criminal Procedure. This judgment establishes a critical doctrinal boundary between constitutional discretion and statutory regulation in the context of premature release of life convicts.
Background & Facts
The Dispute
The appellant, Parveen Kumar @ Parveen Chauhan, was convicted on 3rd January 2009 for the murder of a 12-year-old child under Section 302 of the Indian Penal Code, 1860, along with offences under Sections 365 and 201 IPC. The High Court partially allowed his appeal on 16th July 2013, setting aside the conviction under Section 365 IPC. The Supreme Court dismissed his special leave petition on 15th September 2015, making the conviction final.
Key Facts
- The appellant was sentenced to life imprisonment, five years under Section 365 IPC, and two years under Section 201 IPC.
- He has served 14 years of actual imprisonment as of 26th May 2022.
- The appellant filed a representation for remission on 26th May 2022, invoking the "Policy Regarding Release of Life Convicts 2002" dated 12th April 2002.
- The State rejected his claim on 20th October 2022, asserting that he was governed by the subsequent "Premature Release of Life Convicts 2008" policy dated 13th August 2008.
- Under the 2008 Policy, he was deemed ineligible as he had not completed 20 years of actual imprisonment or 25 years of total imprisonment.
- The appellant had completed 13 years, 7 months, and 16 days of actual imprisonment as of 21st September 2022.
Procedural History
- 26th May 2022: Appellant filed representation seeking remission under the 2002 Policy.
- 16th August 2022: Writ petition (CRWP No.7465 of 2022) filed before the High Court; court directed decision within three months.
- 20th October 2022: Representation rejected by State on grounds of policy applicability and incomplete sentence.
- 2024: Second writ petition (CRWP No.12409 of 2024) filed, relying on State of Haryana v. Jagdish.
- 27th January 2025: High Court dismissed the writ petition.
- 2026: Special Leave Petition (Crl.) No.9920 of 2026 filed before the Supreme Court.
- 1st July 2026: Judgment delivered by the Supreme Court.
The Parties' Positions
For the Appellant
- Argued that the 2002 Policy was framed under Article 161 of the Constitution, granting it constitutional status.
- Contended that the 2008 Policy, being statutory under CrPC Sections 432 and 433, cannot override a constitutional policy.
- Relied on State of Haryana v. Jagdish (2010) 4 SCC 216, which held that a convict is entitled to the benefit of the more liberal policy applicable at the time of consideration.
- Asserted that the 2002 Policy was identical in structure and intent to the 1993 Policy, which Jagdish had recognized as constitutional.
- Argued that State of Haryana v. Raj Kumar (2021) 9 SCC 292, which classified the 2002 Policy as statutory, was per incuriam as it ignored Jagdish.
For the Respondent/State
- Contended that both the 2002 and 2008 Policies were statutory in nature, framed under CrPC.
- Relied on Raj Kumar to assert that the 2008 Policy superseded the 2002 Policy.
- Argued that the 2002 Policy, though issued under the Governor’s name, was in fact a memo from the Financial Commissioner and thus lacked constitutional origin.
- Maintained that the 2008 Policy was explicitly issued under CrPC and was the operative policy at the time of the appellant’s conviction.
- Asserted that the Governor’s power under Article 161 remains unaffected and available separately, but does not revive superseded statutory policies.
Relief Sought
The appellant sought:
- Declaration that the 2002 Policy governs his remission application.
- Direction to the State to consider his application under the 2002 Policy, which requires only 14 years of actual imprisonment for eligibility.
- Inclusion of his pre-conviction custody and other relevant periods in calculating sentence.
- Rejection of the 2008 Policy’s stricter conditions as inapplicable.
The Legal Issue
The central question was whether a remission policy framed under Article 161 of the Constitution, such as the 2002 Policy, continues to govern a convict’s eligibility for premature release even after the introduction of a subsequent statutory policy under the CrPC, and whether the judgment in State of Haryana v. Raj Kumar correctly classified the 2002 Policy as statutory.
Arguments Presented
For the Appellant
The appellant relied on State of Haryana v. Jagdish (2010) 4 SCC 216, which held that remission policies under Article 161 are constitutional in nature and cannot be overridden by statutory policies. He emphasized that the 2002 Policy, like the 1993 Policy in Jagdish, required cases to be placed before the Governor for orders under Article 161. He argued that the 2008 Policy, being issued under CrPC Sections 432 and 433, was subordinate to the Constitution and could not extinguish rights accrued under a constitutional policy. He further contended that Raj Kumar was per incuriam because it failed to consider Jagdish and mischaracterized the 2002 Policy as statutory despite its explicit reference to Article 161.
For the Respondent
The State relied on State of Haryana v. Raj Kumar (2021) 9 SCC 292, which held that the 2002 Policy was a statutory instrument issued under the Prisons Act and CrPC, not under Article 161. It argued that the 2002 Policy was merely a memo from the Financial Commissioner, not a formal notification by the Governor, and thus lacked constitutional character. The State maintained that the 2008 Policy explicitly superseded all prior policies and was the only operative policy at the time of the appellant’s conviction. It further contended that the Governor’s power under Article 161 remains available independently but does not revive policies that have been formally superseded.
The Court's Analysis
The Court undertook a detailed comparative analysis of the 1993, 2002, and 2008 Policies, focusing on the source of authority, issuing authority, and operative language. It observed that both the 1993 and 2002 Policies required cases to be placed before the Governor "for orders under Article 161 of the Constitution of India." The 2008 Policy, by contrast, explicitly invoked CrPC Sections 432 and 433 and directed decisions to be made by the Chief Minister.
"The power exercised under Article 161 of the Constitution is obviously a mandate of the Constitution and, therefore, the policy dated 13-8-2008 cannot override the policy dated 4-2-1993."
The Court reaffirmed the holding in Jagdish that constitutional policies under Article 161 are superior to statutory policies under CrPC. It noted that the 2002 Policy was structurally and substantively identical to the 1993 Policy, which Jagdish had unequivocally recognized as constitutional. The Court held that Raj Kumar erred in classifying the 2002 Policy as statutory, as it failed to reconcile with Jagdish and overlooked the explicit constitutional reference in the policy text.
The Court applied the doctrine of per incuriam to Raj Kumar, holding that it was rendered in ignorance of the binding precedent in Jagdish. It emphasized that a co-ordinate bench cannot overrule a larger bench’s decision without referral to a larger bench, and that Jagdish was a three-judge decision binding on the two-judge bench in Raj Kumar.
The Court further clarified that the mere fact that both policies were signed by the Financial Commissioner did not negate the constitutional nature of the 2002 Policy, as the operative clause clearly invoked the Governor’s constitutional authority.
The Verdict
The appellant succeeded. The Supreme Court held that the 2002 Policy, being framed under Article 161 of the Constitution, governs his remission application. The Court set aside the State’s rejection order dated 20th October 2022 and directed the State of Haryana to reconsider his application under the 2002 Policy, which requires completion of 14 years of actual imprisonment. The State must decide the application within four weeks from the date of this judgment. The Court clarified that this ruling applies prospectively and shall not reopen any remission applications already decided.
What This Means For Similar Cases
Constitutional Remission Policies Prevail Over Statutory Ones
- Practitioners must now argue that any remission policy explicitly invoking Article 161 cannot be superseded by later CrPC-based policies.
- Convicts who were convicted before the 2008 Policy may invoke the 2002 Policy if their case was pending or unadjudicated as of its issuance.
- The burden shifts to the State to prove that a policy was not framed under Article 161, not to the convict to prove it was.
Per Incuriam Doctrine Applies to Conflicting Bench Decisions
- A judgment that ignores a binding precedent from a larger or co-equal bench may be declared per incuriam.
- Lawyers may challenge prior rulings that classified Article 161-based policies as statutory, especially if they predate Jagdish.
- Courts must refer conflicting decisions to a larger bench only if no controlling precedent exists.
Remission Eligibility Is Determined by Policy in Force at Time of Consideration
- The date of conviction is not decisive; the applicable policy is the one in force at the time the remission application is considered.
- If a more liberal policy is in effect at the time of review, the convict is entitled to its benefits, even if a stricter policy was in place at conviction.
- States must maintain separate administrative tracks for constitutional and statutory remission applications.
