Supreme Court Rules Article 161 Remission Policy Overrides Statutory CrPC Policy

Constitutional Remission Powers Prevail Over Statutory Framework

In a significant judgment delivered on July 1, 2026, the Supreme Court of India settled a long-standing question about the interplay between constitutional and statutory remission policies. A bench comprising Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh held that a remission policy framed under Article 161 of the Constitution cannot be overridden by a subsequent statutory remission policy issued under Sections 432 and 433 of the Code of Criminal Procedure (CrPC).

The ruling carries major implications for the remission and premature release of life convicts across India, particularly in states that have framed separate constitutional and statutory remission policies at different points in time.

Background: Haryana's Two Remission Policies

The case involved a life convict who was convicted in 2009 for the murder of a 12-year-old child. After serving over 14 years in prison, the convict's application for premature release was rejected by the Haryana government and subsequently by the Punjab and Haryana High Court.

The core issue centred on the conflict between two distinct remission policies in Haryana. The 2002 policy was framed under the Governor's constitutional power under Article 161, expressly requiring remission cases to be placed before the Governor for orders. In contrast, the 2008 policy was framed under Sections 432 and 433 of CrPC and required the Chief Minister's approval under the statutory framework.

The question before the Supreme Court was straightforward but constitutionally significant: did the 2008 statutory policy supersede and replace the 2002 constitutional policy?

The Court's Ruling: Distinct and Independent Power

The Supreme Court answered with an unequivocal principle. The bench held that Article 161 confers a constitutional power on the Governor that is "distinct and independent, uninfluenced by any other power, more so statutory in nature." A statutory policy, no matter how explicitly framed or recently adopted, cannot override an exercise of constitutional power.

The Court further clarified that a remission policy retains its constitutional character even if it is issued in the form of a government memorandum or administrative order. The source of the power, not the format of the instrument, determines the legal nature of the policy. Since Haryana's 2002 policy was rooted in Article 161, it continued to remain operative despite the subsequent statutory policy.

State of Haryana v. Raj Kumar Declared Per Incuriam

In a notable step, the bench also declared its own 2021 judgment in State of Haryana v. Raj Kumar to be per incuriam. That earlier ruling had concluded that the 2008 statutory policy had replaced the 2002 constitutional policy. The Supreme Court now held that this conclusion was contrary to the larger bench decision in State of Haryana v. Jagdish (2010) 4 SCC 216, which had recognized the primacy of constitutional remission powers.

Declaring a Supreme Court judgment per incuriam is a significant step. It means the earlier ruling is treated as having been decided without proper regard to binding authority, and it no longer serves as valid precedent on the point of law in question. This correction has immediate practical consequences for all pending remission applications in Haryana that were decided under the 2008 statutory framework.

Constitutional Framework: Article 161 and Sections 432-433 CrPC

Article 161 of the Constitution empowers the Governor to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute the sentence of any person convicted of an offence against a law relating to a matter to which the executive power of the State extends. This power is constitutional in origin and carries the authority of the Constitution itself.

Sections 432 and 433 of the CrPC, in contrast, provide a statutory mechanism for the appropriate government to suspend or remit sentences and commute sentences respectively. While these provisions serve a similar practical purpose, they derive their authority from legislation rather than the Constitution. The Supreme Court's ruling establishes a clear hierarchy: constitutional power is supreme, and statutory instruments cannot diminish or override it.

This principle has broader implications beyond remission. It reinforces the fundamental constitutional architecture where powers vested directly by the Constitution occupy a higher position than those created by statute. The ruling is particularly relevant in the context of India's evolving criminal law framework under the Bharatiya Nyaya Sanhita, where the interplay between constitutional provisions and new statutory codes will need to be carefully navigated.

Impact on Premature Release Applications

The immediate effect of this ruling is that life convicts in Haryana whose premature release applications were considered (and potentially rejected) under the 2008 statutory policy may now seek reconsideration under the more favourable 2002 constitutional policy. This could result in a significant number of fresh applications and reviews.

Beyond Haryana, other states that have similarly framed both constitutional and statutory remission policies will need to review their own frameworks in light of this ruling. The principle that a constitutional remission policy prevails over a statutory one is now settled law, and state governments must ensure their procedures reflect this hierarchy. The judgment also intersects with developments in India's broader regulatory reform agenda, as the country continues to rationalize its criminal and regulatory frameworks.

Looking Ahead

This judgment reaffirms a foundational constitutional principle at a time when India's criminal justice system is undergoing significant changes. As labour laws, data protection legislation, and corporate compliance frameworks evolve through statutory instruments, this ruling serves as an important reminder that constitutional provisions remain paramount. Statutory frameworks, however well-intentioned, cannot diminish the scope and operation of powers conferred directly by the Constitution of India.

The ruling will likely influence how state governments across India approach the framing and implementation of remission policies, and it provides clarity on a question that had divided courts for years. For the convict in question, the case has been sent back for reconsideration under the 2002 constitutional policy, potentially opening a path to premature release after more than 14 years of incarceration.