*Judicial Review of the Power of Remission
*The Value of the Opinion of the Presiding Judge
In the present case, Petitioner was sentenced to life imprisonment for committing the offence of murder and spent 16 years in jail without remission and submitted an application for premature release which was rejected by the State on the ground that the Presiding Officer (whose opinion was sought under section 432(2) of Cr.P.C.) opined against releasing the Petitioner on remission. In 2022, Petitioner had completed 20 years of imprisonment and his remission request was again rejected on the same ground.
Hence, the Petitioner has instituted a writ petition Under Article 32 of the Constitution of India seeking direction for his premature release.
Judicial Review of the Power of Remission
Hon’ble Supreme Court while observing, that discretion vests with the government to suspend or remit the sentence, the executive power cannot be exercised arbitrarily. The prerogative of the executive is subject to the rule of law and fairness in state action embodied in Article 14 of the Constitution, referred to a judgment delivered by the Apex Court in the matter of State of Haryana Vs. Mohinder Singh reported as (2000) 3 SCC 394, wherein it was held, that “Prisoners have no absolute right for the remission of their sentence unless except what is prescribed by law and the circular issued thereunder. That special remission shall not apply to a prisoner convicted of a particular offence can certainly be a relevant consideration for the State Government not to exercise the power of remission in that case. The power of remission, however, cannot be exercised arbitrarily. The decision to grant remission has to be well informed, reasonable, and fair to all concerned.”
Hon’ble Court has held, that “while the court can review the decision of the government to determine whether it was arbitrary, it cannot usurp the power of the government and grant remission itself. Where the exercise of power by the executive is found to be arbitrary, the authorities may be directed to consider the case of the convict afresh.”
Hon’ble Court has further referred to another judgment, to illustrate the factors that govern the grant of remission, delivered in the matter of Laxman Naskar Vs. Union of India reported as (2000) 2 SCC 595, wherein the following factors that are to be taken into consideration while dealing with the application for remission were carved out -
(i) Whether the offence is an individual act of crime without affecting the society at large.
(ii) Whether there is any chance of future recurrence of committing the crime.
(iii) Whether the convict has lost his potentiality in committing the crime.
(iv) Whether there is any fruitful purpose of confining this convict anymore.
(v) Socio-economic condition of the convict's family.
Hon’ble Supreme Court while referring to its judgment delivered in the case of Rajan Vs. Home Secretary, Home Department of Tamil Nadu reported as (2019) 14 SCC 114, held, that “the Court has the power to review the decision of the government regarding the acceptance or rejection of an application for remission under Section 432 of the CrPC to determine whether the decision is arbitrary in nature. The Court is empowered to direct the government to reconsider its decision.”
The Value of the Opinion of the Presiding Judge
Sub-section (2) of Section 432 of the CrPC provides that the appropriate government may take the opinion of the presiding judge of the court before or by which the person making an application for remission has been convicted on whether the application should be allowed or rejected, together with the reasons for such opinion.
Hon’ble Supreme Court while referring to its judgment delivered by a Constitution Bench in the case of Union of India Vs. Sriharan @Murugan reported as (2014) 4 SCC 242, held, that “in Sriharan (supra), the Court observed that the opinion of the presiding judge shines a light on the nature of the crime that has been committed, the record of the convict, their background and other relevant factors. Crucially, the Court observed that the opinion of the presiding judge would enable the government to take the ‘right’ decision as to whether or not the sentence should be remitted. Hence, it cannot be said that the opinion of the presiding judge is only a relevant factor, which does not have any determinative effect on the application for remission. The purpose of the procedural safeguard under Section 432 (2) of the CrPC would stand defeated if the opinion of the presiding judge becomes just another factor that may be taken into consideration by the government while deciding the application for remission. It is possible then that the procedure under Section 432 (2) would become a mere formality.
However, this is not to say that the appropriate government should mechanically follow the opinion of the presiding judge. If the opinion of the presiding judge does not comply with the requirements of Section 432 (2) or if the judge does not consider the relevant factors for grant of remission that have been laid down in Laxman Naskar v. Union of India (supra), the government may request the presiding judge to consider the matter afresh.”
Lastly, the Hon’ble Court has held, that “an opinion accompanied by inadequate reasoning would not satisfy the requirements of Section 432 (2) of the CrPC. Further, it will not serve the purpose for which the exercise under Section 432 (2) is to be undertaken, which is to enable the executive to make an informed decision taking into consideration all the relevant factors.”
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