Exclusion of remission: Supreme Court misses another opportunity to lay down clear guidelines

On 13 February 2025, in Ramesh A. Naika v The Registrar General, High Court of Karnataka, a three-judge bench of the Supreme Court commuted a death sentence imposed by the Trial Court and confirmed by the Karnataka High Court. The Supreme Court held that, for the murders of his own children, the convict would “now await his natural end, without remission, in the confines of a penitentiary.” 

While the Court did not find any error in the findings recorded by the two other courts on guilt, it disagreed on sentencing. It found the convict’s lack of pre-trial criminal antecedents a mitigating circumstance which had not been properly considered. In converting the sentence to life imprisonment, the bench also took into account the fact that the convict had helped his sister-in-law (whom he was also found to have murdered) secure a job—this was seen as a sign of “good behaviour”. 

The Supreme Court did agree with the Trial Court’s rejection of considering the convict’s desire to serve elders as a mitigating factor. It also found that the circumstantial evidence was impeachable and not damaging to the Trial Court’s sentencing order. 

Life term without remission as “the other death penalty” 

The judgement, however, is devoid of any reasoning for why the bench considered it appropriate to deny remission to the convict. The Criminal Procedure Code,1973 makes it clear that remission is an executive prerogative—when a convict serving a life term has served at least 14 years, the executive can exercise discretion to release them. 

But through its judgements in Swamy Shraddananda v State of Karnataka (2008) and Union of India v V. Sriharan (2015), the Supreme Court created a category of life sentences that excluded the possibility of being considered by the government for remission (either for a fixed number of years or for life). 

In October 2024, while dismissing a petition requesting review of Swamy Shraddananda, the three-judge bench observed that even if the remission route was shut judicially, Sriharan made it clear that the petitioner would be entitled to make a representation to the President under Article 72 or to the Governor under Article 161. 

Writing on the ‘Constitutional Law and Philosophy’ blog, authors Vibha Swaminathan and Diya Maria Abraham considered this a missed opportunity to examine whether the remainder of natural life sentences are qualitatively different from the death penalty when it comes to the liberty and dignity of the individual. Human rights lawyer Madhurima Dhanuka has argued that there is an imminent need to truly understand the grave human rights concerns around this “other death penalty”. 

The two precedent tables in the Naika order

This is the context in which the order in Naika must be considered. To justify its order, the bench presents two tables of cases where it commuted a death sentence. The first table (“Part I”) lists cases where the commutation doesn’t leave open the possibility of remission, and the second table (“Part II”) contains cases where the Court announced life sentences subject to remission. Both tables contain columns for “Brief Facts” and “Reasons for Commuting Sentence”. 

The bench’s attempt to classify legal precedents into two broad categories makes little sense, especially, as the bench offers no reasoning as to why the reasons mentioned in Part II do not apply to the appellant in this case, making him eligible for remission. The details provided in bullet points in the “Facts” and “Reasons for Commuting Sentence” columns have no correlation with the Court’s decision on remission. 

If the objective was for the reader to trace a pattern in the judgements, and understand what sort of factual matrix will leave the door open for remission, it has not been achieved through this order. Part of the problem lies in the lack of deep engagement about any distinction between the fact situations of cases listed in Part I and those listed under Part II. The overall effect is that the link between the circumstances of the crime and the Court’s decision on remission is tenuous at best and non-existent at worst. 

Neetika Vishwanath, Director, Sentencing, at research collective Project-39A pointed out that there is a lack of well-reasoned sentencing orders in criminal cases across all levels of the judiciary. She further noted a concerning lack of judicial rigour in cases where courts impose fixed-term or life sentences without remission. “The justification seems to be based simply on brutality of the crime, which is a low standard since all death-eligible crimes are bound to be serious in nature,” she said.  

Sentencing, Vishwanath noted, is an “individualised exercise” which requires an assessment of circumstances of both the crime and the accused. In her view, the tables prepared by the bench in Naika do not speak to the choice of a life sentence without remission and cannot be considered as “reasons” for the outcome. “The tables are a mere distraction,” she said. 

A missed opportunity in Navas

Last March, in its decision in Navas @ Mulanavas v State of Kerala (2024), the Supreme Court did take a small step towards offering guidance on how courts should approach the question of remission in life sentencing. 

While noting that “the very nature of mathematical exactitude is an impossibility,” the three-judge bench found that “precedents can be good pointers as advised in Sriharan.” They advised that a “survey of previously decided cases applying Swamy Shraddananda principle” would be a “safe and legitimate guide” in this regard. 

In Navas, the bench surveyed 27 cases of death penalty commutation by the Supreme Court. Here’s what they found: the maximum of imprisonment (that is, for the rest of life) was given in five cases; in nine cases, the period of imprisonment without remission was 30 years; in six cases, the period was 20 years; in four cases, it was 25 years; it was 35 years and 21 years in two other cases.

The bench then concluded that the “journey through the cases set out hereinabove shows that the fundamental underpinning is the principle of proportionality.” The judgement, authored by Justice K.V. Viswanathan, advised the “judicially trained mind” to “pore and ponder” over aggravating and mitigating circumstances while deciding the number of years of compulsory imprisonment without remission. 

Ultimately, the Court modified the sentence from a period of 30 years without remission to 25 years without remission. 

On the P39A blog, Lakshmi Menon, Associate, Sentencing, argues that Navas goes down the “old (and problematic) road” of formulating a principle for imposing remission-barred sentences without recognition of its implications. Menon suggests that this insufficient engagement with the punishment (and with remission) raises questions on the decision’s ability to turn things around in developing a principled sentencing framework. 

In Menon’s view, the Court “ends up confining the scope of decision-making to the offender’s culpability at the time of the offence” despite the fact that remission is meant to engage with the offender’s actions “after the time of the offence.”  

Menon suggests that Navas misses its opportunity to advance the jurisprudence by “relying merely on precedent that only speaks to commutation of the death penalty.” She notes that the case cited offers “little to no reasoning” to explain why they chose to exclude remission. It is clear that the Court’s decision in Naika suffers from the same limitation. 

Chance to clarify in pending five-judge matter

“We must understand that the Supreme Court is restricting remissions when commuting death sentences in an increasing number of cases. This is worrying. Life sentences without remission strike at the heart of the logic of reform and rehabilitation. It takes away hope from the convict,” Vishwanath said.

Judgments like Naika demonstrate that the Court is focussed on equality of outcomes, Vishwanath further said. “The determination of a sentence is based on comparing the case at hand with similar crimes. Such similarity is almost always based on crime and gives a go-by to the circumstances of the accused. Instead, the Court must ensure equality of sentencing processes for all the death row convicts,” she said.  

In 2022, a three-judge bench referred a suo motu case for framing guidelines on mitigating circumstances to a five-judge bench. The reference was necessitated due to conflicting decisions by coordinate benches on whether bifurcated hearing on sentencing (as opposed to same-day hearing following conviction) is mandatory. 

The reference order noted the Court’s concern that a convict should have a “real and meaningful opportunity” to defend themselves during the sentencing hearing. It remains to be seen whether the Court will expand the ambit of this case to clarify the selective denial of remission.