Remission Policy Framed Under Article 161 Cannot Be Overridden By Subsequent Statutory Policies; 2008 Policy Doesn't Supersede 2002 Policy: Supreme Court

"Since the 2002 Policy stood framed under the Constitution and such power is to be exercised by the Governor himself, the subsequent Policy of 2008 cannot deter the effect of the former and the observation that it supersedes the 2002 Policy is untenable in law." Supreme Court, in a landmark ruling dated July 1, 2026, held that a remission policy framed under the constitutional powers of Article 161 cannot be overridden or superseded by a subsequent policy issued under the statutory provisions of the Code of Criminal Procedure (CrPC).

A bench comprising Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh observed that the constitutional power of the Governor is independent, distinct, and uninfluenced by statutory mandates.

The appellant, convicted for the murder of a 12-year-old child in 2009, sought premature release after serving 14 years of actual imprisonment, placing reliance on the '2002 Policy' of the State of Haryana. The State authorities rejected his representation, contending that his case would be governed by the stricter '2008 Policy,' which required twenty years of actual sentence and twenty-five years of total sentence for eligibility. The appellant challenged this decision, asserting that the beneficial policy existing at the time of his conviction should apply.

The primary question before the court was whether a remission policy framed in exercise of Article 161 of the Constitution is superseded by a later policy enacted under Sections 432 and 433 of the CrPC. The court was also called upon to determine if the previous decision in State of Haryana v. Raj Kumar (2021) was per incuriam for conflicting with the larger bench decision in State of Haryana v. Jagdish (2010).

Constitutional Power Under Article 161 Is Independent Of Statutory Provisions

The Court meticulously analyzed the various remission policies issued by the State of Haryana since 1971. It noted that while the 2008 Policy specifically refers to the exercise of powers under Section 432 of the CrPC, the earlier 2000 and 2002 Policies were framed to solicit orders from the Governor under Article 161 of the Constitution.

"It need not be said that a statutory policy, even if it may be so, cannot override an exercise of power under Article 161, for that power is distinct and independent, uninfluenced by any other power, more so statutory in nature."

State Must Apply The Most Liberal Policy Available To The Convict

Relying on the three-judge bench decision in Jagdish v. State of Haryana, the Court reiterated that the State is under an obligation to exercise its discretion in line with the "honest expectation" perceived by the convict at the time of conviction. If a more liberal policy exists on the date of consideration for remission, the prisoner should be given the benefit thereof.

"In case a liberal policy prevails on the date of consideration of the case of a 'lifer' for premature release, he should be given benefit thereof."

Raj Kumar Judgment Held Per Incuriam For Conflicting With Larger Bench

The Court addressed the State's reliance on the Raj Kumar (2021) judgment, which had categorized the 2002 Policy as a mere "memo" of statutory origin. The Court noted that this finding directly contradicted the reasoning in Jagdish, which was rendered by a larger bench. The bench emphasized that judicial discipline requires a smaller bench to follow the largest strength bench's decision.

"The Policies of 1993 and 2002 are, as already observed above, identical in terms of their source of power under Article 161... the judgment in Rajkumar supra held the 2002 Policy to be of statutory origin. This would fall foul of the reasoning in Jagdish supra and hence be rendered per incuriam."

Constitutional Mandate Overrides Rules Of Procedure

The bench clarified that policies issued under the CrPC are essentially rules of procedure and remain subordinate to the mandate of the Constitution. Since the 2002 Policy banks on Article 161, the 2008 Policy, despite claiming to supersede all earlier policies, cannot legally deter the effect of the constitutional policy.

"The Notification dated 13-8-2008 is, therefore, under a rule of procedure, which is subordinate to the Constitution. 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 Supreme Court allowed the appeal, declaring that the appellant is entitled to the benefit of the 2002 Policy, which prescribes a lesser period of incarceration for remission eligibility. The Court directed the State of Haryana to take a fresh decision on the appellant's remission application within four weeks. It further clarified that this judgment would apply prospectively and would not reopen cases that have already attained finality.

Date of Decision: July 01, 2026