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Power of Clemency: Commutation,Suspension and Remission

A pardon can be defined as an act of mercy or forgiveness. Pardoning criminals been practiced since older times, when the king possessed the power to punish or remit any punishment. The Power of pardon exists to prevent injustice whether from harsh, unjust laws or from judgments which result in injustice; hence the necessity of vesting that power in an authority other than the judiciary has always been recognized.(1)

In addition to Constitutional provisions which give the President and Governor the power to pardon, the Code of Criminal Procedure and Indian Penal Code confers upon the Government the same power. Pardoning can be regarded as one form of Probation in which there is shift from deterrent to reformative forms of punishments. In the Indian legal framework, probation is covered under the Code of Criminal Procedure and in the Probation of Offenders Act of 1958.

Power of Clemency-Commutation, Suspension and Remission
Provisions under Indian Constitution
Article 72 of the Constitution gives power to the President to grant pardon, reprieves, respites or remit punishment or to suspend, remit or commute the sentence of any person in all cases where the punishment is by a court martial or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends or the sentence is a sentence of death,

Article 161 gives power to the Governor of a State, the power to grant pardon, reprieves, respites or remit punishment or to suspend or commute in respect of a sentence of a person convicted of any offence against any law relating to a matter to which the executive power of the State extends. Article 162 prescribes the extent of executive power of the State. Article 162, therefore assumes significance while exercising the power under Article 161. (2)

It is an established principle that a person can be sentenced or punished only when he has been convicted by the court. Thus if a person has not been given a chance of a fair trial or a proper investigation has not been carried out against that person, then there is no reason why that person should be given a pardon, because he is still innocent. Therefore, the pardoning power can be exercised only in the case of a convicted person only.

However, in earlier cases the Court has said that the pardon can be granted even before conviction or trial by a Court.This principle was laid down in the case of In Re: Maddela Yerra Channugadu and Ors(3).When trials came up for hearing on High Court, the Public Prosecutor, informed the court that all the condemned prisoners, whose trials have been referred for the confirmation of sentences by the High Court, have been released as a result of a general amnesty granted by the Government of Andhra Pradesh.

The question then arose as to whether the release of the condemned prisoners, pending the confirmation of their sentences by the court does or does not amount to an act of interference with the due and proper course of justice and Government have, by their action, prevented the proper disposal of these case. it was said in the case that it does not amount to interference with the due and proper course of justice as the power of the court to pronounce upon the validity.

Propriety and correctness of the conviction and sentence remains unaffected. It may be exercised at any time after the commission of an offence, either before legal proceedings are begun or during their pendency, and either before or after conviction.

This decision was affirmed by the High Court later in the case of Nanavati v State of Bombay (1962)(4) when, the High Court upheld the Governor's order of suspension of life sentence of Nanavati but later on Supreme Court held that the Governor's order suspending the sentence could operate only till the matter became sub judice in the Court on filing the petition for special leave to appeal, and no further.

If special leave was filed before the Supreme Court, then the pardoning powers of the Governor were terminated. Thereafter, it is for the Court to pass such an order as it thinks fit.

It was affirmed in the case of Mirza Mohammad Husain v. State of U.P. [2002](5). The court held that, an essential function performed by the judiciary cannot be altered or modified or its effect taken away in the garb of power of pardon by the Governor under Article 161 of the Constitution In its judgement, the court directed re-arrest of certain released who were granted premature release on the basis of the Government order including accused people in the above case within two months.

Under Article 142, The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. The Supreme Court used Article 142 of the Constitution and ordered the release of A.G. Perarivalan due to the unnecessary delay caused by the Governor of Tamil Nadu in exercising his powers under Article 161.

In A.G. Perarivalan v. State of Tamil Nadu, The Supreme Court in 2022, decided to release A.G. Perarivalan who spent 32 years in prison. The Supreme Court commuted the sentence of the death penalty in 2014 since the court found the 11 years delay in disposing his mercy petition to be violative of Article 21 of the Constitution.

In 2014, the Tamil Nadu government under section 432 of the CrPC ordered the release of all seven convicts including Perarivalan but the Supreme Court stayed the release. In 2018, the State Cabinet of Tamil Nadu passed a resolution to release all seven convicts under Article 161, including Perarivalan and sent it to the Governor. The Governor of Tamil Nadu neither decided on the resolution of the State cabinet.

He moved to the Supreme Court seeking suspension of his sentence. In January 2021, the Governor of Tamil Nadu referred the resolution of the State Cabinet to the President after sitting on it for more than two and half years. The Supreme Court held that the advice of the State Cabinet is binding on the Governor in the exercise of power in matters related to commutation/remission under Article 161.

The Court also found the move of the Governor of Tamil Nadu to refer to the State Cabinet's recommendation to the President to be 'contrary to the constitutional scheme'. However power under Article 72 and 161 of the Indian Constitution is broader when compared to that of Article 142.

In addition to these Constitutional provisions, The Code of Criminal Procedure, 1973, under Chapter XXXII, Sections 432 and 433 confers upon the Government the power to suspend, remit and to commute sentences.

Under section 432(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, with or without conditions suspend the execution of his sentence or remit the whole or any part of the punishment.

Section 432 (2) says that when an application is made to the appropriate Government for the suspension or remission of a sentence, the Government may require the presiding Judge of the Court to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward the record of the trial.

Section 432(3) specifically provides for consequences of the conditions not being fulfilled .If not fulfilled, it contemplates remanding the person so subjected to remission to jail once again.

While Article 161 of the Constitution speaks of grant of reprieves, pardons and remissions etc., it does not speak of imposition of conditions for the release, whereas section 432 of Criminal Procedure Code speaks of remission or suspension with any condition. Section 432 of Criminal Procedure Code is a separate, though similar provision from Article 72 and 161.

In the case of Krishnan Nair v. State of Kerala (6) The Council of Ministers took a decision to grant special remission to prisoners in the State under Article 161 of the Constitution ordered the premature release of 98 prisoners. The Petitioner was undergoing the sentence of life imprisonment in the jail since 1969 and he was also released prematurely in 1980. One of the conditions of the bond for release was that the released prisoner will have to present himself before the Probation Officer and must keep in contact with him periodically.

The petitioner did not visit the Probation Officer. After a year he was again arrested and sent back to jail. It was seen by the court that, at the time the Council of Ministers decided the remission nor at the time the Governor confirmed there was not any contemplation of imposition of any condition with regard to the remission.

The decision of the Governor under Article 161 was a decision for unconditional remission. Section 432(3) CrPC, on the other hand, specifically provides for consequences in case the conditions which are given under Section 432(1) are not fulfilled. That the power under Article 161 of the Constitution is independent of power under section 432.If they were released under section 432 it would have been different in this case. The petitioner was released along with other prisoners.

Section 433 contains the power of appropriate government to commute sentence. To commute:
  1. a sentence of death, for any other punishment provided by the Indian Penal Code
  2. a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;
  3. a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;
  4. a sentence of simple imprisonment, for fine.

The power of commutation under section 433 of the CrPC is the exclusive domain of the executive and it is not available even to a higher appellate court. No court can mandate the appropriate government to commute a sentence. It may give as a recommendation in certain circumstances like, when the Court feels sympathetic towards the accused, owing to some reasons such as illness of accused or family members or social circumstances which leads to commission of crime etc.

Section 433A CrPC imposes restriction on powers of remission or commutation in certain cases. whenever a sentence for life imprisonment is imposed on a person, for an offence where the law provides for death as one of the punishments, or where a sentence of death has been charged into imprisonment for life, such person shall not be eligible for release from the jail unless they complete fourteen years of imprisonment.

The provisions of Section 433 A do not have any effect on the constitutional power which is conferred on the Governor or the President to grant a pardon under provisions of Article 72 or Article 161 of the Indian Constitution.

The Court had restrained the State Governments from exercising their power of remission or commutation to life convicts. The decision of Union of India v. V. Sriharan(7) shall only apply to cases:
  1. Life sentence may be awarded under the following circumstances:
    1. The convict shall undergo life sentence till the end of his life without remission or commutation;
    2. The convict shall not be released by granting remission or commutation till he completes a fixed term such as 20 years or 25 years or the like;
    3. Where no application for remission or commutation was preferred, or considered suo motu by the State Governments/authorities concerned;
    4. Where the investigation was not conducted by any central investigating agency like the Central Bureau of Investigation;
    5. Where the life sentence is under any Central law or under Section 376 of the Penal Code, 1860, or any other similar offence.

The powers conferred by sections 432 and 433 upon the State Government may, under section 434 in the case of sentences of death, can also be exercised by the Central Government. Section 457 CrPC gives relief to pregnant women. If a woman sentenced to death is found to be pregnant, the High Court shall commute the sentence to imprisonment for life.

Maru Ram v. Union of India [1980] (8) In this case, the constitutional validity of section 433A of the code of criminal procedure, 1973 was challenged on the ground that it violates provision of Article 14, 20(1), 72 and 161 of the constitution of India. Court held that power of the President under Article 72 and the Governor under Article 161 can neither be altered, modified or interfered with by any statutory provision.

Section 433A is actually a social piece of legislation which by one stroke seeks to prevent dangerous criminals from repeating offences and on the other protects the society from harm and distress caused to innocent persons. Court upholds constitutional validity of section 433A.

In Nalini vs The State of Tamil Nadu [2018], The Supreme Court framed seven questions for consideration and referred it to the Constitution Bench known as Union of India v. V. Sriharan alias Murugan and others (9). The judgement discusses the exercise of power of remissions under the statutory provisions of law

The questions were:
  1. Whether the imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code means till the end of convict's life with or without any scope for remission?

    Imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment for the rest of the life of the convict. The right to claim remission, commutation, reprieve, etc. as provided under Article 72 or Article 161 of the Constitution will always be available being constitutional remedies untouchable by the Court.
  2. Whether the Appropriate Government is permitted to exercise the power of remission under Sections 432/433 of the Code even after the Constitutional power has been exercised under Articles 72 and 161 by the President and the Governor as well as the power exercised by this Court under Article 32 as in this case?

    The exercise of power under Sections 432 and 433 of the Criminal Procedure Code will be available to the Appropriate Government even if such consideration was made earlier and exercised under Article 72 by the President or under Article 161 by the Governor. As far as the application of Article 32 of the Constitution is concerned, it is held that it is not for the Court to exercise the said power and it is always left to be decided by the Appropriate Government.
  3. Whether Section 432(7) of the Code clearly gives primacy to the Executive Power of the Union and excludes the Executive Power of the State where the power of the Union is coextensive?
  4. Whether the Union or the State has primacy over the subject-matter enlisted in List III of the Seventh Schedule to the Constitution of India for exercise of power of remission?
  5. Whether there can be two Appropriate Governments in a given case under Section 432(7) of the Code?

    In the event of specific Executive Power conferred on the Centre under a law made by the Parliament or under the Constitution itself then even if the Legislature of the State is also empowered to make a law on the same subject and coextensive, the Appropriate Government will be the Union Government. Cases which fall within the four corners of Section 432(7)(a) by virtue of specific Executive Power conferred on the Centre, the same will clothe the Union Government the primacy with the status of Appropriate Government. Barring cases falling under Section 432(7)(a), in all other cases where the offender is sentenced or the sentence order is passed within the territorial jurisdiction of the State concerned, the State Government would be the Appropriate Government.
  6. Whether suo motu exercise of power of remission under Section 432(1) is permissible in the scheme of the section?
    No suo motu power of remission is exercisable under Section 432(1) of the Criminal Procedure Code. It can only be initiated based on an application of the person convicted as provided under Section 432 (2).
  7. Whether the expression Consultation'' stipulated in 435(1) really means Concurrence?
    The power of the Governor is regulated by the Executive Power of the State as has been stipulated in Article 162. The Supreme Court has already held that the word consultation used in Section 435(1) is nothing but concurrence.

Indian Penal Code
Section 54 of the IPC grants the state or Central Government the authority to commute a death sentence to another punishment without the consent of the offender. Similarly, under Section 55, the appropriate Government can commute a sentence of life imprisonment to a term of imprisonment not exceeding fourteen years without the consent of the offender.

Distinction between 'Commutation' under Section 55, IPC and 'Remission' under Section 433, CrPC
In the case of commutation under s 55, IPC, the punishment is altered to one of a different sort than that originally proposed while in the case of remission the amount of punishment is reduced without changing the character of punishment.

To illustrate, if an accused is released from prison at the end of 14 years, which was commuted for the life sentence originally imposed under section 55, IPC, the accused will not be regarded as being under the sentence of life imprisonment. On the other hand, an accused whose life imprisonment has been remitted under s 433, CrPC, will still be regarded as being under sentence of life imprisonment. (10)

Narcotics Drugs and Psychotropic Substances Act, 1985
Section 32 A of the NDPS Act explicitly prohibits the government from suspending, remitting, or commuting sentences imposed under the Act, with the exception of section 27 which punishes the consumption of narcotic drugs or psychotropic substances.

The constitutionality of this provision has been examined by the judiciary, and there has been no amendment made to address the conflict regarding the power of the High Courts under section 389 of Cr. P. C. to suspend, remit, or commute sentences during the pendency of an appeal against a conviction under the NDPS Act. (11)

In the case of Tara Singh and others v. Union of India (12), The New Punjab Jail Manual lays down remission to the convicts depending upon good conduct and performance of duties allotted to them whilein prison, but the benefit is not made available to the convicts under the NDPS Act on the ground that Section 32-A of the NDPS Act bars entitlement to such remission.

The Supreme Court considered the issue of whether the remission granted by the Governor of State under Article 161 of the Constitution overrides the effect of Section 32 A of NDPS Act. The court in the case observed that the constitutional powers under 72 and 161 are different from the provisions under Cr. P. C. Though the right to claim relief under such statutory provisions are taken away by the Act, the right to seek relief under Article 72 and 161 remains untouched.

Dadu @ Tulsidas Vs. State of Maharashtra [2000] (13), The Constitutional validity of Section 32A of the NDPS was challenged in these petitions filed by the convicts under the NDPS Act. The Section is alleged to be arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India which creates unreasonable distinction between the prisoners convicted under the Act and the prisoners convicted for the offences punishable under various other statutes. Petitioner could not claim parole presumably under the impression that Section 32A of the act was a bar for the State to grant it.

Court held that Parole is not a suspension of the sentence. The convict continues to be serving the sentence despite granting parole. It is thus clear that parole did not amount to the suspension, remission or commutation of sentences which could be withheld under Section 32A of the Act.

The writ petitions were disposed by holding that (1) Section 32A does not in any way affect the powers of the authorities to grant parole; (2) It is unconstitutional to the extent it takes away the right of the court to suspend the sentence of a convict under the Act.

In the case of Maru Ram & Ors. v. Union of India & Ors., Krishna Iyer J. expressed the view that all public power, including constitutional power, should not be exercised arbitrarily or in bad faith. Guidelines for fair and equal execution are essential for the valid exercise of power. The power to pardon is a crucial part of the constitutional scheme and should be used responsibly when necessary.

The Supreme Court has held that the president's pardon cannot be reviewed judicially on its merits, except within the limitations established in the Maru Ram case. These limitations include reviewing pardoning power in cases where executive decisions are made on irrational, arbitrary, unreasonable, or discriminatory grounds.

Misuse by Authority
Instances of misuse of the power to grant pardon by Governments have been brought to light in various cases. In the case of Swaran Singh [1998] (14), an MLA of the U.P. Assembly was convicted of murder and sentenced to life imprisonment. However, the Governor of U.P. granted him remission of the remaining sentence within two years.

The Supreme Court intervened and quashed the Governor's action, citing that vital facts about the petitioner were not disclosed, such as his involvement in other criminal cases and unsatisfactory conduct in prison. The Court emphasized that judicial review of the Governor's decision under Article 161 is limited, as defined in the Maru Ram case, and remitted the case back to the Governor for reconsideration.

In Narayan Dutt vs. State of Punjab (2011) (15),2 special leave petitions were heard together. The questions arise before court were:
  • Whether the power under Article 161 is subject to judicial review and if yes, to what extent?
  • Whether the Governor had rightly exercised his power to pardon under Article 161?

There are certain grounds on which judicial review of an order passed under Articles 72 and 161 could be undertaken. Those grounds are:
  1. If the Governor had been found to have exercised the power himself without being advised by the government;
  2. If the Governor transgressed his jurisdiction in exercising the said power;
  3. If the Governor had passed the order without applying his mind;
  4. The order of the Governor was mala fide; or
  5. The order of the Governor was passed on some extraneous consideration.
The decision of whether an accused person is innocent or guilty in a criminal trial falls within the jurisdiction of a Court of law. The powers of a Court in a criminal trial and subsequent appeal, as well as those of the President or Governor under Article 72 and 161, operate in different areas and have different natures. These powers should not overlap. The Court has set aside the order and remanded it to the Governor for reconsideration.

These cases are examples of how politics has become criminalized and how pardoning powers are manipulated to benefit criminal politicians. As long as this power is exercised on the advice of the government, there is a risk of arbitrariness and malicious intent. Therefore, it is necessary to establish a framework for the exercise of this power so that it is based on merit rather than political considerations. It also highlights the importance of courts exercising the power of judicial review. (16)

Indian Penal Code and Bharatiya Nyaya Sanhita, 2023
Section 5 of BNS is comparable to Section 54 and 55 of IPC. Section 6 was added to provide clarity on terms of imprisonment for life. According to Section 6 of BNS, when calculating fractions of punishment, imprisonment for life is considered equivalent to imprisonment for twenty years unless stated otherwise.

CrPC and Bharathiya Nagarik Suraksha Sanhitha 2023
Section 475 of BNSS is different from Section 433 of CrPC. Section 475 BNSS allows the appropriate Government to commute a sentence without the consent of the person sentenced.
  1. a sentence of death, for imprisonment for life;
  2. a sentence of imprisonment for life, for imprisonment for a term not less than seven years;
  3. a sentence of imprisonment for seven years or ten years, for imprisonment for a term not less than three years;
  4. a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced;
  5. a sentence of imprisonment up to three years, for fine.
Sec 432,433 A, 434,435 of CrPC is adopted as such in the new bill.

Recent Case law:
The Gujarat government recently granted remission to 11 convicts who were convicted of rape and murder in the 2002 Bilkis Bane case. The Special CBI Court had sentenced the 11 to life imprisonment for the gang rape and murder of seven members of Bilkis Bane's family. Their release was challenged by a petitioner in the Supreme Court. In 2014, the state government amended the 1992 policy to make it compulsory for accused who committed grievous or heinous crimes to not be eligible for remission.

However, the government implemented the 1992 Gujarat remission Policy in 2022 for the accused in the Bilkis Bane case, citing that the 1992 policy was in effect at the time of their conviction in 2008. According to the 1992 policy, any accused can be released after completing 14 years, regardless of the nature of the offense. The remission has been criticized due to the heinous nature of the crimes involved.

The law regarding Remission and commutation of sentences is still unclear in various aspects. Different states in India have their own separate legislations for the premature release of prisoners, as there is no uniform policy by central legislation on the topic.

There is a need to bring uniformity in the procedure, including laws, rules, regulations, and policies regarding the premature release of prisoners. Executives have been given wide discretion with respect to remissions under the law, so procedural checks must be made to ensure that these powers are not abused.

  1. Seervai, H. M., Constitutional Law of India, Universal Law Publishing Co. Pvt. Ltd., p.2004
  2. The Constitution of India
  3. Re: Maddela Yerra Channugadu and Ors MANU/TN/0394/1954
  4. Nanavati state of Bombay AIR 1962 SC 605
  5. Mirza Mohammad Husain v. State of U.P.2002 (1) JIC 342 (All)
  6. Krishnan Nair v. State of Kerala, 1984 criLJ 87
  7. Union of India v. V. Sriharan alias Murugan and others [2014 (11) SCC 1]
  8. Maru Ram v. Union of India AIR 1980 SC 2147
  9. Union of India v. V. Sriharan alias Murugan and others [2014 (11) SCC 1]
  10. S. APP and Vibhute KI, PSA Pillai's Criminal Law (12 th, LexisNexis 2021)
  11. The NDP'S Act, 1985, Section 32A
  12. Tara Singh and others v. Union of India, AIR 1980 SC 1682, (1980) 4 SCC 179
  13. Dadu @ Tulsidas Vs. State of Maharashtra [2000] INSC 511
  14. Swaran Singh V State of UP, AIR 1998 SC 2026:(1998)4 SCC 75
  15. Narayan Dutt vs. State of Punjab (2011) Special Leave Petition No.1154/08
  16. Jain MP, Chelameswar J and Naidu DS, Indian Constitutional Law (Eighth, LexisNexis 2019)
  17. Indian Kanoon

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