Constitutional Law Criminal

The Quality of Mercy and Section 433A: The Haryana Government’s Remission Policy

Ishani Shekhar & Pravah Ranka

In a recent happening, a remission policy of the Haryana government mandating premature release of life convicts, came before the Supreme Court in Pyare Lal v. State of Haryana.[i] This policy decision dated 02.08.2019 was passed by the Governor in pursuance of the powers under Article 161 of the Indian Constitution. The Bench will now examine the validity of the Haryana Government’s policy as well as the larger question of the conflict between the executive and the legislature. 

The policy allowed the premature release of a certain category of life convicts (above 75 years of age and having served 8 years of their sentence in case of male convicts and 65 years of age and having served 6 years of their sentence for female convicts) which prima facie overrides Section 433A of the Criminal Code Procedure (hereinafter ‘Cr.P.C’).

Notably, Section 433A, Cr.P.C. is a restriction on the powers of remission and commutation in certain cases. It prescribes that in cases where life imprisonment has been awarded as an alternative to death sentence or where a sentence of death has been commuted under S. 433, Cr.P.C, the person has to serve at least fourteen years before being released.

This article attempts to examine the question before the larger bench, i.e. the conflict between Section 433A and the remission policy. 

The Remission Policy

It has been established by the Supreme Court in Swaran Singh v. State of U.P. and Ors.,[ii] that it is imperative for the Governor to be informed of the vital facts concerning the prisoner, on a case by case basis,  before the grant of remission to an offender. Thus, the Court set aside an order passed by the Governor under Article 161 granting remission to the person convicted of the offence of murder, even before the convict had completed two years of actual sentence. The ratio decidendi of this case was further reiterated in the leading judgment of Epuru Sudhakar v. Govt. of A.P. [iii]

It is irrefutable that the entirety of the matter has to be placed before the Governor. Other relevant aspects including the seriousness of the crime and the manner in which the crime was committed should be taken into consideration before any remission policy is drafted. The Supreme Court in State Of Haryana & Ors vs Jagdish[iv] down the factors that need to be accounted for while considering the release of a life convict. These are five-fold. The authorities are required to consider the case mainly taking into consideration whether the offence was an individual act of crime without affecting the society at large [i]. Whether there is any chance of future recurrence of a crime [ii]. Whether the convict had lost his capability to commit a crime [iii]. Whether there exists any constructive purpose of confining the convict anymore [iv]. The socio-economic condition of the convict’s family and other similar circumstances [v].

On the contrary, the Haryana Government’s policy does not mandate that individual facts or material pertaining to each case be placed before the Governor. Therefore, the factors laid down by the Apex Court will be ignored before the grant of remission. However, in the referral to a larger bench, the question was more broadly framed: The implementation of this policy gave rise to an obvious concern in this case: whether in exercise of powers under Article 161, a policy can be framed which lays down certain postulates, on the satisfaction of which, benefit of remission can be granted to the convicts without even placing the facts and material pertaining to the individual case of the convict, before the Governor and whether such exercise can override the requirements mentioned in S. 433A.

This question will now be analysed by the Constitution Bench which has been formed for this purpose.

Article 161 and Judicial Review

In Swaran Singh v. State of U.P., the Supreme Court held that the pardoning powers of the executive are constitutional powers which, despite their elevated status, are subject to judicial review if used arbitrarily. Under the Court’s precedent in Epuru Sudhakar v. Govt. of Andhra Pradesh, the necessity or justification for a grant of remission must be decided on a case to case basis. Under the Haryana government’s remission policy, the Governor does not examine each convict individually, but grants remission based on a broad classification based on age and sex. 

The ‘reasonable classification test’ is two-pronged.[v] Any classification made by a legislation must be: (i) be founded on an intelligible differentia that distinguishes those grouped together from those who are excluded and (ii) this differentia must have a rational nexus with the object of the statute. Additionally, the Court has held that Article 14 also prohibits all arbitrary classifications.[vi] Firstly, the classification under the present remission policy has been made on the basis of the gender of convicts. This classification lacks reasoning since remission is sought to be granted to convicts who have committed offences of similar nature against the State and are treated by the same law of land. Secondly, the object of the policy is to grant remission to certain groups of convicts in a manner that is not arbitrary or unjust, the classifications made on gender or age do not have a reasonable nexus to this object. 

The Bench in Maru Ram

The Constitution Bench in Maru Ram v. U.O.I and Ors.[vii], examined the constitutional validity of  S. 433A of the Cr.P.C. and also answered whether the Constitutional Powers of the Governor and the President under Articles 161 and 72 respectively could override S.433A of the Cr.P.C. In Maru Ram, the Court declared Section 433A a social piece of legislation which seeks to protect against recidivism. S. 433A does this by ensuring that serious offenders serve a minimum of fourteen years, attempting to fulfill both deterrent and reformative effects. While exercising their pardoning powers, neither the President nor the Governor may overlook the object of Section 433A and create a conflict between legislative intent and executive power. The Haryana Government’s policy dismisses legislative intent arbitrarily and without due consideration.

The Court held further that there appears to be no real inconsistency between S. 433A of the Code and Articles 161 and 72 of the Constitution. The pardoning powers of the President and the Governor are absolute and cannot be altered, modified, or interfered with by any statutory provision. However, the Court reiterated that arbitrary orders were still subject to judicial review. While exercising these powers, the Executive must be cautious so that the effect caused by such an exercise is not counterproductive. The policy of the Haryana Government seems to have been devised without the requisite caution as it seeks to release potentially dangerous criminals into the society arbitrarily.

It was held that in the exercise of powers under Articles 161 and 72, a separate order for each individual case is not necessary, but a general order must be clear enough to identify a group of cases. However, in the present remission policy (which is a general order and does not deal with individual cases separately), the term “major jail offence” has no definition, making classification vague and arbitrary. .


The outcome of the referral to the Constitution Bench is critical to Indian jurisprudence on the separation of powers and judicial review. The stakes are the fates of individual convicts, the effect that possible recidivism may have on society, and its impact on the calibration of our separation of powers doctrine. Even if it is established that a legislative provision can be overridden by constitutional powers, the fact remains that the remission policy is prima facie arbitrary. It ought to be struck down. 

The authors are B.A. LLB (Hons.) students at Gujarat National Law University.

[i] Pyare Lal v. State of Haryana, Criminal Appeal No. 1003 of 2017.

[ii] Swaran Singh v. State of U.P. & Ors, (1998) 4 SCC 75.

[iii] Epuru Sudhakar & Anr. v. Govt. Of A.P. & Ors., W.P. (Crl.) 284-285 of 2005.

[iv] State of Haryana & Ors v. Jagdish, Criminal Appeal No. 566 of 2010.

[v] Anwar Ali Sarkar, 1952 AIR 75.

[vi] E.P. Royappa v. State of Tamil Nadu, 1974 AIR 555.

[vii] Maru Ram v. U.O.I and Ors., 1980 AIR 2147.

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