Sections 473 and 474, BNSS 2023 — the substance

Section 473: the appropriate Government may at any time, without conditions or upon any conditions which the person accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. Where a condition is not fulfilled, the Government may cancel the suspension or remission, and the person may be arrested and remanded to undergo the unexpired portion.

Section 474: the appropriate Government may, without the consent of the person sentenced, commute — a sentence of death, for imprisonment for life; a sentence of imprisonment for life, for imprisonment for a term not less than seven years; a sentence of imprisonment for seven years or more, for imprisonment for a term not less than three years; and a sentence of imprisonment for less than seven years, for fine.

⚠ The BNSS change, and why it matters

Under the Code, the commutation ladder was expressed as a maximum: imprisonment for life could be commuted to imprisonment for a term not exceeding fourteen years.

Under the Sanhita it is expressed as a minimum: not less than seven years. The provision now sets a floor below which commutation may not go, rather than a ceiling above which it may not.

The practical effect is the opposite of what the old wording produced. The old provision limited how much the Government could reduce; the new one limits how far down it may commute — leaving the upper end open.

And section 475 survives both: where a person has been sentenced to imprisonment for life for an offence for which death is one of the punishments, or where a death sentence has been commuted to life, he shall not be released unless he has served at least fourteen years.

📖 Laxman Naskar v. Union of India, (2000) 2 SCC 595

Facts: Convicts serving sentences of imprisonment for life applied for premature release under the remission policy of the State, and the Supreme Court considered the factors on which such a case is to be decided.

Held: The Supreme Court held that in considering whether a convict should be prematurely released, the authority should have regard to a set of factors. Whether the offence is an individual act of crime without affecting society at large; whether there is any fruitful purpose served by keeping him in prison; whether there is any chance of the crime being repeated in future; whether the convict has lost his potentiality in committing crime; and the socio-economic condition of the convict’s family. The Court held that these considerations require an assessment of the individual before the authority, and not merely of the offence he committed — since the object of the power is to recognise that a person may have ceased to be the person who committed the offence. It held that a decision which does not address these matters cannot be said to be a proper exercise of the power, and directed that the cases before it be reconsidered on that footing.

Ratio: Premature release turns on whether the offence was an individual act without affecting society at large, whether any purpose is served by continued imprisonment, whether the crime is likely to be repeated, whether the convict has lost the potentiality to commit crime, and his family’s condition.

📖 State of Haryana v. Mahender Singh, (2007) 13 SCC 606

Facts: Convicts sought premature release under a remission policy, and the State contended that no convict has any right in the matter, remission being purely a matter of executive grace which the Government may grant or withhold as it pleases.

Held: The Supreme Court held that although no convict has a fundamental right to remission, he has a right to have his case considered in accordance with the policy in force, and that the power, though executive, must be exercised fairly and reasonably. The Court held that where a remission policy exists, a convict who falls within its terms is entitled to have the policy applied to him: the State cannot ignore its own policy, nor decline to consider a case at all. It held that the decision must be founded on relevant material and must disclose that the authority applied its mind, and that a refusal expressed in general terms, without reference to the convict’s own case, does not answer that requirement. The Court emphasised that the power is to be exercised having regard to the nature of the offence, the conduct of the convict and the object of the policy, and that an arbitrary refusal is examinable.

Ratio: No convict has a right to remission, but he has a right to have his case considered under the policy in force. The State cannot ignore its own policy, and a refusal must be founded on relevant material and disclose application of mind.

The position stated shortly

1. Remission changes the quantum; commutation changes the kind. Neither touches the conviction.

2. Section 473: the Government may suspend or remit the whole or any part of the sentence, with or without conditions; and on breach may cancel it and remand the person for the unexpired portion.

3. Section 474: it may commute without the consent of the person sentenced.

4. The BNSS reverses the ladder. Where the Code said life could be commuted to a term not exceeding fourteen years, the Sanhita says not less than seven — a floor, not a ceiling.

5. Section 475 survives: a person sentenced to life for an offence for which death is a punishment, or whose death sentence was commuted, shall not be released before fourteen years.

6. The power is executive, and a court does not remit or commute a sentence it has passed.

7. Its exercise is examinable for non-application of mind, mala fides, irrelevant considerations or arbitrariness — its merits are not.

8. The factors on premature release: whether the offence was an individual act without affecting society at large; whether any purpose is served by continued imprisonment; the chance of repetition; whether he has lost the potentiality to commit crime; and his family’s condition: Laxman Naskar.

9. No convict has a right to remission, but he has a right to have his case considered under the policy in force: Mahender Singh.

10. And the State cannot ignore its own policy: a refusal must rest on relevant material and disclose application of mind.