Supreme Court: Governor's Article 161 Remission Power Prevails Over Statutory Remission Policy Under CrPC

A remission policy framed in exercise of the Governor's constitutional power under Article 161 prevails over a later statutory remission policy issued under the Code of Criminal Procedure. The Supreme Court laid down this principle on 1 July 2026 in Parveen Kumar v. State of Haryana (2026 INSC 667), while allowing the appeal of a life convict whose premature release had been decided under a less favourable policy. The judgment clarifies the relationship between constitutional clemency under Article 161 and statutory remission, an issue that directly affects how and when long-serving prisoners in India can secure early release.

The Two Policies in Conflict

The convict argued that his case should have been considered under Haryana's 2002 remission policy, which expressly required remission cases to be placed before the Governor for orders under Article 161 of the Constitution. The State instead applied its 2008 policy, which invoked Sections 432 and 433 of the CrPC and required approval of the Chief Minister under the statutory framework. Because the 2002 policy was more liberal, the choice of policy determined whether the prisoner qualified for premature release. The Court had to decide which policy governed and, more fundamentally, whether a statutory policy could displace one rooted in the Governor's constitutional power.

Article 161 and Statutory Remission Compared

Article 161 confers on the Governor the power to grant pardons, reprieves, respites or remissions of punishment, or to suspend, remit or commute sentences, in respect of offences against state laws. Sections 432 and 433 CrPC separately empower the appropriate government to remit or commute sentences. The Supreme Court emphasised that the constitutional power under Article 161 is distinct and independent, and is not controlled by the statutory power. As the Court put it, a statutory policy cannot override an exercise of power under Article 161, because that power stands on its own footing. Readers interested in constitutional remedies can review how to file a writ petition under Article 226, a related route for challenging executive decisions.

Why the Court Declared an Earlier Ruling Per Incuriam

The Bench declared the 2021 decision in State of Haryana v. Raj Kumar to be per incuriam, meaning decided without regard to a binding precedent. It found that Raj Kumar was contrary to the larger Bench view in State of Haryana v. Jagdish (2010), which had recognised that a convict is entitled to consideration under the policy that is more beneficial. A judgment rendered per incuriam does not carry binding force, which allowed the Court to restore the more protective approach. This willingness to correct course reflects a broader pattern of the Court policing consistency, as seen when it used Article 142 to set deadlines for reserved judgments.

What It Means for Prisoners Seeking Remission

The practical significance is considerable. Where a state has framed a remission policy that channels cases to the Governor under Article 161, that policy cannot be quietly superseded by a later statutory policy that is less generous to the prisoner. Convicts are entitled to have their premature release considered under the more beneficial policy in force. Prison authorities and state governments must apply the correct policy rather than default to the newest one. Digital systems are gradually making this process more transparent, as reflected in NALSA's e-Prisons module for prisoner remission, which tracks eligibility across the country.

The Broader Constitutional Principle

At its core the judgment reaffirms the hierarchy between constitutional and statutory power. Powers that flow directly from the Constitution occupy a higher plane and cannot be curtailed by ordinary legislation or executive policy framed under a statute. This principle has consequences well beyond remission, because it guides how courts read any attempt by the executive to fetter a constitutional function. For those newly encountering the criminal justice system, understanding your rights if you are arrested under the BNSS gives useful grounding in how liberty is protected at every stage.

Related Reading

For further reading on the reach of constitutional provisions, see the discussion of whether a Bar Association is 'State' under Article 12, which similarly examines the boundaries of constitutional concepts.

Key Takeaways

1. In Parveen Kumar v. State of Haryana (2026 INSC 667), the Supreme Court held that a remission policy framed under the Governor's Article 161 power prevails over a later statutory policy issued under Sections 432 and 433 CrPC. 2. The constitutional power under Article 161 is distinct and independent of the statutory remission power. 3. A convict is entitled to consideration under the more beneficial remission policy in force. 4. The Court declared its 2021 ruling in State of Haryana v. Raj Kumar per incuriam for ignoring the larger Bench decision in Jagdish (2010). 5. States must apply the correct policy and cannot default to a less generous later one.