Commutation of a Sentence Section 474

Section 474, BNSS 2023

The appropriate Government may, without the consent of the person sentenced, commute —

(a) a sentence of death, for any other punishment provided by the Bharatiya Nyaya Sanhita, 2023;

(b) a sentence of imprisonment for life, for imprisonment for a term not less than seven years;

(c) a sentence of imprisonment for seven years or more, for imprisonment for a term not less than three years;

(d) a sentence of imprisonment for less than seven years, for fine.

⚠ The structure of the ladder is worth noticing

Each rung is expressed as a minimum — “not less than”. The commuted sentence has a floor, and the appropriate Government may not go below it.

That is a change of form from the Code of Criminal Procedure, which expressed the corresponding rung for life imprisonment as a maximum — “imprisonment for a term not exceeding fourteen years or fine”.

The practical effect is a structured power. A life sentence cannot be commuted to two years; a sentence of ten years cannot be commuted to six months. The Government may reduce, but only within the band the section allows.

And the ladder descends by kind as well as length: at the bottom rung, a sentence of imprisonment for less than seven years may be commuted to fine — a punishment of an entirely different character.

📖 Kehar Singh v. Union of India, (1989) 1 SCC 204 (Constitution Bench)

Facts: A petition for clemency having been rejected, questions arose as to the scope of the power conferred by Article 72 — whether the President may examine the merits of the case decided by the courts, whether the petitioner is entitled to an oral hearing, and how far the exercise of the power is open to judicial scrutiny.

Held: The Constitution Bench held that the power under Article 72 is of the widest amplitude and can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case. In exercising it, the President may scrutinise the evidence on the record and come to a different conclusion from that recorded by the court — not to sit in appeal, but because the power is to be exercised on considerations which may include the merits of the case as they appear to the executive. The Court held that the petitioner has no right to an oral hearing before the President. On judicial review, it held that the manner of consideration of a petition lies within the discretion of the President, that the order granting or refusing clemency is not subject to review on its merits, and that the Court is not called upon to specify the areas in which the power may be exercised — but that the existence of the power and the limits within which it operates remain matters the Court may examine.

Ratio: The power under Article 72 is of the widest amplitude and the President may scrutinise the evidence and reach a different conclusion. There is no right to an oral hearing, and the order is not reviewable on its merits.

📖 Epuru Sudhakar v. Government of Andhra Pradesh, (2006) 8 SCC 161

Facts: Orders of remission granted by a Governor were challenged on the ground that they had been passed on irrelevant considerations and without application of mind to the material. The Court was required to decide whether and on what grounds an exercise of the constitutional clemency power may be judicially reviewed.

Held: The Supreme Court held that the exercise of the power under Articles 72 and 161 is subject to judicial review on limited grounds — that the order was passed without application of mind; that it is mala fide; that it was passed on extraneous or wholly irrelevant considerations; that relevant material was kept out of consideration; or that it suffers from arbitrariness. The Court held that the rule of law is the basis for evaluation of all decisions, that no legal or constitutional power is beyond scrutiny of its exercise, and that while the merits of a clemency decision are not examined, the decision-making process is. It emphasised that clemency is to be exercised on the basis of relevant material, that religion, caste or political affiliation are not relevant considerations, and that the Court may call for the records to satisfy itself that the power was exercised on proper grounds.

Ratio: The exercise of the clemency power is subject to limited judicial review — non-application of mind, mala fides, irrelevant or extraneous considerations, exclusion of relevant material, and arbitrariness. The merits are not examined, but the decision-making process is.

The position stated shortly

1. To commute is to substitute a sentence of a different kind. It is the most substantial of the three executive powers.

2. Section 474: commutation may be made without the consent of the person sentenced. A convict can neither refuse it nor insist on the sentence originally passed.

3. The ladder: death to any other punishment under the BNS; imprisonment for life to not less than seven years; seven years or more to not less than three years; less than seven years to fine.

4. Each rung is expressed as a minimum. The commuted sentence has a floor, and the Government may not go below it — a change of form from the CrPC, which fixed a maximum for life imprisonment.

5. Commutation changes the character of the sentence, where remission merely shortens one of the same kind.

6. It is subject to section 475: where a death sentence is commuted to imprisonment for life, the convict shall not be released unless he has served at least fourteen years.

7. Section 456 is the one judicial commutation: where a woman sentenced to death is found to be pregnant, the High Court shall commute to imprisonment for life.

8. The constitutional power under Articles 72 and 161 is of the widest amplitude; the President may scrutinise the evidence and reach a different conclusion, and there is no right to an oral hearing: Kehar Singh.

9. Its merits are not reviewable, but its exercise is, on limited grounds — non-application of mind, mala fides, irrelevant considerations, exclusion of relevant material, arbitrariness: Epuru Sudhakar.

10. The statutory and constitutional powers run in parallel, and neither displaces the other. The constitutional power is not fettered by section 475 or by any statutory restriction.