Bharatiya Nyaya Sanhita, 2023
Section 5
Commutation of sentence
The appropriate Government may, without the consent of the offender, commute any punishment under this Sanhita to any other punishment in accordance with section 474 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Explanation.—For the purposes of this section the expression “appropriate Government” means, —
(a) in cases where the sentence is a sentence of death or is for an offence against any law relating to a matter to which the executive power of the Union extends, the Central Government; and
(b) in cases where the sentence (whether of death or not) is for an offence against any law relating to a matter to which the executive power of the State extends, the Government of the State within which the offender is sentenced.
Why this exists
Commutation power has long existed in Indian criminal law (earlier under Sections 54, 55, and 55A of the Indian Penal Code, 1860) to give the executive flexibility to reduce harsh sentences—such as converting a death sentence to life imprisonment—without waiting for or requiring the prisoner's consent. This recognizes that circumstances (health, age, changed facts, policy reasons) may justify leniency even if the convict does not ask for it. The division between Central and State Government mirrors India's federal structure: whichever government has executive authority over the subject matter of the offence gets the power to commute sentences under it, ensuring the correct level of government handles the decision.
How courts read it
Under the earlier, similarly worded IPC provisions, the Supreme Court in Maru Ram v. Union of India (1980) clarified that this executive commutation power is a statutory power distinct from the constitutional pardoning power of the President and Governors under Articles 72 and 161, and that it can be regulated by law (such as conditions attached to remission). Courts have also emphasized that the appropriate government must act on relevant considerations and not arbitrarily, since commutation affects a person's liberty even though their consent isn't required.
Common misconceptions
- Myth: The convict must agree before their sentence can be commuted.
Fact: The section specifically says the government can commute the sentence without the offender's consent. - Myth: Only the Central Government can commute any sentence in India.
Fact: The power is split: the Central Government handles death sentences and Union-related offences, while State Governments handle other offences under their own executive powers. - Myth: Commutation is the same as a pardon.
Fact: Courts have distinguished this statutory commutation power from the President's or Governor's constitutional pardoning power under Articles 72 and 161.