Supreme Court Rules Article 161 Remission Policy Overrides Statutory CrPC Framework

Supreme Court Rules Article 161 Remission Policy Overrides Statutory CrPC Framework

On July 1, 2026, the Supreme Court of India delivered a significant ruling in Parveen Kumar @ Parveen Chauhan v. State of Haryana (2026 INSC 667), holding that a remission policy framed by a state government under Article 161 of the Constitution cannot be overridden by a subsequent statutory remission policy issued under the Code of Criminal Procedure. The judgment, delivered by a bench of Justices Sanjay Karol and Nongmeikapam Kotiswar Singh, clarifies a long-standing question about the interplay between constitutional clemency powers and statutory remission schemes.

The Constitutional and Statutory Framework

Article 161 of the Constitution grants the Governor of a state the power to grant pardons, reprieves, respites, or remissions of punishment. This is a constitutional power rooted in the Governor's executive authority, exercised on the aid and advice of the state cabinet. Separately, the old Code of Criminal Procedure, 1973 (CrPC) contained provisions under Sections 432 and 433 that empowered the appropriate government to suspend or remit sentences through statutory orders.

The distinction matters: one source of power is constitutional and supreme; the other is statutory and subordinate. When the Haryana government framed its 2002 remission policy, it expressly required that remission cases be placed before the Governor for orders under Article 161. This made it a constitutional policy. Later, in 2008, Haryana introduced a new statutory remission policy that specifically invoked Sections 432 and 433 of the CrPC and required the Chief Minister's approval under the statutory framework.

Facts of the Case: Parveen Kumar v. State of Haryana

The petitioner, Parveen Kumar, was a life convict who had been convicted in 2009 for the murder of a twelve-year-old child. After serving over fourteen years in custody, he applied for premature release under the 2002 remission policy. The Haryana authorities refused, applying the more restrictive 2008 policy instead. The question before the Supreme Court was whether the 2008 statutory policy could override the 2002 constitutional policy.

The Supreme Court's Reasoning

The Court examined both policies in detail and concluded that the 2002 policy was unmistakably a constitutional remission policy because it routed every decision through the Governor's office under Article 161. The 2008 policy, by contrast, was a purely statutory instrument under the CrPC.

The Court held that a statutory remission policy cannot supersede a constitutional one. The constitutional power under Article 161 operates at a higher plane than the statutory power under Sections 432 and 433 of the CrPC. Any subsequent statutory policy that purports to override or replace a constitutional policy is, to that extent, without legal authority.

Earlier Verdict Declared Per Incuriam

In a notable finding, the Court declared that the decision in State of Haryana v. Raj Kumar, (2021) 9 SCC 292, was per incuriam. That earlier verdict had treated the 2002 policy as a statutory policy and had applied the 2008 policy to defeat remission claims. The Court found that Raj Kumar had failed to consider the binding three-judge bench ruling in State of Haryana v. Jagdish, which had already recognized the 2002 policy as a constitutional instrument.

By declaring Raj Kumar per incuriam, the Court removed a precedent that had caused confusion in multiple High Courts and had led to the denial of remission claims filed under the 2002 policy.

Directions to the Haryana Government

The Court directed the State of Haryana to reconsider Parveen Kumar's remission application afresh within four weeks from the date of the judgment. Additionally, the Court ordered that a copy of its order be transmitted to the Chief Secretary of Haryana within four days. This direction signals that the Court expects prompt compliance and that future remission decisions must respect the hierarchy between constitutional and statutory powers.

Broader Implications for Criminal Law

This ruling has implications well beyond Haryana. Several states maintain parallel remission frameworks: one rooted in the Governor's constitutional authority and another in statutory provisions. Where both exist, this judgment establishes that the constitutional policy prevails if it was validly framed under Article 161. State governments cannot use subsequent statutory instruments to narrow the scope of constitutional clemency.

Under the new criminal law framework (the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced the CrPC), similar remission provisions continue to exist. The principle laid down in this case will apply equally to remission policies under the new code, because the constitutional hierarchy between Article 161 and any statute remains unchanged.

Key Takeaways

First, a remission policy exercised through the Governor's power under Article 161 is a constitutional policy and stands on higher ground than a policy under the CrPC or BNSS. Second, a later statutory remission policy cannot override or replace an earlier constitutional remission policy. Third, the per incuriam declaration of the 2021 Raj Kumar verdict removes a conflicting precedent and restores clarity to remission jurisprudence in India. Fourth, state governments must carefully identify whether their remission policies draw authority from the Constitution or from statute, because the legal consequences differ significantly.

For more on how constitutional principles shape criminal law, see Bharatiya Nyaya Sanhita 2023: Key Changes from IPC Every Citizen Must Know and Bharatiya Nagarik Suraksha Sanhita 2023: The New Criminal Procedure Code. Also relevant is the analysis of Anticipatory Bail in India: How Section 482 BNSS Works, the Bail Under the NDPS Act, and the discussion of Bail Under BNSS 2023: Conditions, Procedures, and Supreme Court Guidelines.