The Supreme Court has said it has the power to review the decision of the government on the acceptance or rejection of remission and is also empowered to direct it to reconsider its decision.

A bench of Justices D.Y. Chandrachud and Aniruddha Bose said on Friday the executive power could not be exercised arbitrarily. It said the prerogative of the executive was subject to the rule of law and fairness in State action.

“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 bench said.

The observations of the top court came on a plea filed by Ram Chander who is undergoing a life imprisonment upon being convicted for the commission of offences punishable under Section 302 (murder) read with Section 149 (unlawful assembly) of the Indian Penal Code.

The convict sought the issue of a writ directing the Chhattisgarh government to grant him premature release.

The top court said though the court could review the decision of the government to determine whether it was arbitrary, it could not usurp the power of the government and grant remission itself.

On the issue of the opinion of the presiding judge of the court for deciding remission, the apex court said the appropriate government should not mechanically follow the opinion of the presiding judge.

“In the present case, there is nothing to indicate that the presiding judge took into account the factors which have been laid down…

“These factors include assessing (i) whether the offence affects the society at large; (ii) the probability of the crime being repeated; (iii) the potential of the convict to commit crimes in the future; (iv) if any fruitful purpose is being served by keeping the convict in prison; and (v) the socio-economic condition of the convict’s family,” the bench said.

The apex court directed that the petitioner’s application for remission should be reconsidered.

“We direct the special judge, Durg to provide an opinion on the application afresh accompanied by adequate reasoning,” it said.

The top court said in this case the special judge must provide his opinion within a month of the date of the receipt of this order.

“We further direct the State of Chhattisgarh to take a final decision on the petitioner’s application for remission afresh within a month of receiving the opinion of the Special Judge, Durg,” the bench said.