Mercy, Remission and Commutation
Chapter Sixty-Seven
Syllabus topic GUIDELINES rule 1.3, the Act is the boundary. Part E of Chapter XXXIV lies outside MU's printed ranges, but section 472, the mercy petition in death sentence cases, is entirely new law and is asked.
Pages 453 to 459 of 699
In one line
After the courts have finished, the executive may still suspend, remit or commute a sentence, and a man under sentence of death may still ask for mercy.
In exam wording: sections 472 to 477 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provide for the mercy petition in death sentence cases, the power of the appropriate Government to suspend and remit sentences and to commute them, the restriction on that power in life sentence cases, and the Central Government's concurrent and concurrence powers.
Why the law has this at all
There are two quite separate ideas in this Part and they should not be run together.
The constitutional idea is mercy. Articles 72 and 161 give the President and the Governors a power to pardon that no statute created and no statute can take away. It exists because a legal system, however careful, can produce an outcome that is lawful and yet not right, and because the last word in a matter of life should rest with the political head of the State rather than with a court. Section 472 does not create that power. It builds a procedure around it, with fixed times, because the scandal of the old arrangement was that mercy petitions in death cases could lie undecided for years while the man waited.
The statutory idea is remission. Sentences are fixed at conviction on what is known then, and prisons then observe the prisoner for years. Sections 473 and 474 let the appropriate Government suspend, remit or commute in the light of what those years show. That is an executive power over the sentence, exercisable without the convict's consent, and section 475 caps it at the heavy end by requiring fourteen years to have been served.
Some words this chapter uses
Suspension stops the sentence for a time; remission wipes out the whole or part of it; commutation substitutes a lighter kind of sentence for a heavier one.
The appropriate Government is defined in section 473(7).
Legal heir or any other relative in section 472(1) shows that the mercy petition need not come from the convict himself.
Section 472: the mercy petition
Sub-section (1), who and when. A convict under the sentence of death, or his legal heir or any other relative, may, if he has not already submitted a petition for mercy, file a mercy petition before the President under Article 72 or the Governor under Article 161, within thirty days from the date on which the Superintendent of the jail:
(i) informs him about the dismissal of the appeal, review or special leave to appeal by the Supreme Court; or (ii) informs him about the date of confirmation of the sentence of death by the High Court and the time allowed to file an appeal or special leave in the Supreme Court has expired.
Mercy, Remission and Commutation
Sub-section (2), the order of the two authorities. The petition may initially be made to the Governor, and on its rejection or disposal by the Governor, the petition shall be made to the President within sixty days from the date of that rejection or disposal.
Sub-section (3), co-convicts. The Superintendent of the jail or officer in charge shall ensure that every convict, where there is more than one in a case, also files a mercy petition within sixty days; and on non-receipt of a petition from the others, he shall send their names, addresses, a copy of the record of the case and all other details to the Central or State Government along with the petition received.
Sub-section (4), the Central Government's part. On receipt of the mercy petition, the Central Government shall seek the comments of the State Government, consider the petition along with the records, and make recommendations to the President as expeditiously as possible, within sixty days from the date of receipt of the State Government's comments and the records from the Superintendent of the jail.
Sub-section (5). The President may consider, decide and dispose of the mercy petition; and where there is more than one convict in a case, the petitions shall be decided by the President together in the interests of justice.
Sub-section (6). On receipt of the President's order, the Central Government shall within forty-eight hours communicate it to the Home Department of the State Government and to the Superintendent of the jail.
Sub-section (7), finality. No appeal shall lie in any Court against the order of the President or of the Governor made under Article 72 or Article 161, and it shall be final; and any question as to the arriving of the decision by the President or the Governor shall not be inquired into in any Court.
Sub-sections (3) and (5) belong together and are worth a sentence in an answer. Where several men are condemned in one case, the law wants their petitions filed together and decided together, so that the same facts do not produce different mercy at different times.
Section 473: suspension and remission
Sub-section (1). When any person has been sentenced to punishment for an offence, the appropriate Government may at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment.
Sub-section (2), the Judge's opinion. On an application, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion whether the application should be granted or refused, with his reasons, and to forward a certified copy of the record of the trial.
Mercy, Remission and Commutation
Sub-section (3), breach of a condition. If a condition is in the Government's opinion not fulfilled, it may cancel the suspension or remission, and the person, if at large, may be arrested by any police officer without warrant and remanded to undergo the unexpired portion of the sentence.
Sub-section (4). The condition may be one to be fulfilled by the person, or one independent of his will.
Sub-section (5), rules and the jail rule. The appropriate Government may by general rules or special orders direct how suspensions are dealt with. Proviso: for any sentence other than a fine passed on a person above the age of eighteen, no petition by him or on his behalf shall be entertained unless he is in jail, and: (a) where he petitions, it is presented through the officer in charge of the jail; or (b) where another person petitions, it contains a declaration that the person sentenced is in jail.
Sub-section (6). These provisions also apply to any order of a Criminal Court under the Sanhita or any other law which restricts the liberty of a person or imposes a liability on him or his property.
Sub-section (7), "appropriate Government". (a) the Central Government, where the sentence is for an offence against, or the order is under, any law relating to a matter to which the executive power of the Union extends; (b) in other cases, the Government of the State within which the offender is sentenced or the order is passed.
Section 474: the commutation ladder
The appropriate Government may, without the consent of the person sentenced, commute:
(a) a sentence of death, for imprisonment for life; (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; (e) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced.
Two features of the ladder are asked. It works without consent, unlike a conditional remission under section 473(1), which requires conditions the person accepts. And each rung has a floor: life goes down to not less than seven years, and seven years or more to not less than three.
Mercy, Remission and Commutation
Sections 475 to 477: the fourteen years, and the Centre
Section 475, the restriction. Notwithstanding section 473, where:
- a sentence of imprisonment for life is imposed on conviction for an offence for which death is one of the punishments provided by law; or
- a sentence of death has been commuted under section 474 into one of imprisonment for life,
such person shall not be released from prison unless he has served at least fourteen years of imprisonment.
Recall the proviso to section 468 from the last chapter: in cases referred to in section 475, the period of detention before conviction is set off against those fourteen years.
Section 476, the Centre's concurrent power. The powers conferred by sections 473 and 474 on the State Government may, in the case of sentences of death, also be exercised by the Central Government.
Section 477, concurrence required.
Sub-section (1). The State Government's powers under sections 473 and 474 to remit or commute shall not be exercised except after concurrence with the Central Government where the sentence is for an offence:
(a) investigated by an agency empowered under a Central Act other than the Sanhita; or (b) involving the misappropriation, destruction of, or damage to property belonging to the Central Government; or (c) committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty.
Sub-section (2). No order of suspension, remission or commutation by the State Government in relation to a person convicted of offences some of which relate to matters to which the executive power of the Union extends, and sentenced to separate terms running concurrently, shall have effect unless a corresponding order has also been made by the Central Government in relation to those offences.
A worked example
Vikas is sentenced to death. The High Court confirms it, and his special leave petition is dismissed by the Supreme Court.
When may he ask for mercy? Within thirty days from the date the Superintendent of the jail informs him of the dismissal, section 472(1)(i).
Who may file it? Vikas, or his legal heir or any other relative, if he has not already petitioned.
Whom does he approach first? He may go to the Governor first; on rejection or disposal by the Governor, the petition shall be made to the President within sixty days, sub-section (2).
There are two other condemned men in the same case. The Superintendent must ensure they also petition within sixty days, and if they do not, must send their names, addresses and the record to the Government along with Vikas's petition, sub-section (3). The President decides all the petitions together, sub-section (5).
Mercy, Remission and Commutation
What does the Central Government do? It seeks the State Government's comments, considers the petition with the records, and recommends to the President within sixty days of receiving those comments and the jail records, sub-section (4). The President's order is communicated within forty-eight hours to the State Home Department and the Superintendent, sub-section (6).
The petition is rejected. Can he go to court about it? No appeal lies, the order is final, and how the decision was arrived at shall not be inquired into in any Court, sub-section (7).
Change it: the sentence is commuted. Under section 474(a) a death sentence may be commuted to imprisonment for life, without his consent. And then section 475 applies: he shall not be released unless he has served at least fourteen years, against which his pre-conviction detention is set off, proviso to section 468.
A different convict, serving five years, applies for remission. The appropriate Government may suspend or remit, with or without conditions he accepts, section 473(1); it may ask the presiding Judge for his opinion with reasons and a certified copy of the record, sub-section (2). He must be in jail for his petition to be entertained, and it must come through the officer in charge, proviso to sub-section (5).
He breaks a condition. The Government may cancel the remission, and he may be arrested without warrant by any police officer and remanded to serve the unexpired portion, sub-section (3).
The offence was investigated by a central agency. Then the State Government may not remit or commute except after concurrence with the Central Government, section 477(1)(a).
And where the sentence is of death, the powers of sections 473 and 474 may also be exercised by the Central Government, section 476.
Distinctions
| Suspension | Remission | Commutation | |
|---|---|---|---|
| What it does | Stops the execution of the sentence for a time | Wipes out the whole or part of the punishment | Substitutes a lighter kind of sentence |
| Section | 473(1) | 473(1) | 474 |
| Consent of the convict | Conditions must be ones he accepts | Same | Not required |
| Section 474 commutation ladder | To |
|---|---|
| Death | Imprisonment for life |
| Imprisonment for life | A term not less than seven years |
| Seven years or more | A term not less than three years |
| Less than seven years | Fine |
| Rigorous imprisonment | Simple imprisonment for any term to which he might have been sentenced |
| Section 472 timetable | Days |
|---|---|
| Mercy petition after the Superintendent's information | 30 |
| Petition to the President after the Governor's rejection | 60 |
| Co-convicts' petitions to be collected by the Superintendent | 60 |
| Central Government's recommendation after the State's comments and jail records | 60 |
| Communication of the President's order | 48 hours |
Mercy, Remission and Commutation
| Section 476 | Section 477 | |
|---|---|---|
| What it does | Gives the Central Government the same powers as the State, in death sentence cases | Requires the State to obtain the Centre's concurrence in the three listed classes |
| Nature | Concurrent power | Concurrence requirement |
What this does NOT mean
Section 472 does not create the power of mercy. That comes from Articles 72 and 161; the section supplies the procedure and the timetable.
It does not make mercy justiciable. Sub-section (7) makes the order final, bars any appeal, and forbids any Court to inquire into how the decision was arrived at.
Remission is not a discharge of the conviction. It affects the punishment; and by section 473(3) a broken condition can put the man back in prison for the unexpired portion.
Commutation of a death sentence is not release. Section 475 requires at least fourteen years to have been served before release, in the two situations it names.
And a State Government is not free in every case. Section 477 requires concurrence with the Central Government where a central agency investigated, where Central Government property was harmed, or where a central servant offended in his official capacity.
Quick revision
- 472: a convict under sentence of death, his legal heir or any relative may petition the President under Article 72 or the Governor under Article 161 within thirty days of the Superintendent's information; Governor first, then the President within sixty days; the Superintendent collects co-convicts' petitions in sixty days; the Centre seeks the State's comments and recommends within sixty days; the President decides all the petitions together; the order is communicated within forty-eight hours; no appeal, final, and not inquirable into.
- 473: the appropriate Government may suspend or remit, with or without accepted conditions; may call for the presiding Judge's opinion and the record; may cancel on breach, with arrest without warrant and the unexpired portion to serve; conditions may be within or independent of his will; a petition needs the person to be in jail and to come through the officer in charge; extends to orders restricting liberty or imposing liability; "appropriate Government" defined.
- 474: commutation without consent: death to life; life to not less than seven years; seven years or more to not less than three; less than seven years to fine; rigorous to simple.
- 475: fourteen years minimum before release where life is imposed for an offence for which death is a punishment, or where a death sentence has been commuted to life.
- 476: in death sentence cases the Central Government may also exercise the sections 473 and 474 powers.
- 477: the State needs the Centre's concurrence where the offence was investigated under a Central Act, involved Central Government property, or was committed by a central servant in his official duty; and a concurrent-terms order has no effect without a corresponding Central order for the Union-list offences.
Mercy, Remission and Commutation
Test yourself
1. Within what time must a mercy petition be filed? Within thirty days from the date the Superintendent of the jail informs the convict of the dismissal of his appeal, review or special leave petition by the Supreme Court, or of the confirmation of the death sentence by the High Court where the time to move the Supreme Court has expired, section 472(1).
2. Can the President's order on a mercy petition be challenged? No. Section 472(7) provides that no appeal lies against an order of the President or the Governor under Article 72 or 161, that it is final, and that no Court shall inquire into how the decision was arrived at.
3. What must the Superintendent do where there are several condemned convicts? Ensure that every convict files a mercy petition within sixty days, and, where any does not, send that convict's name, address, a copy of the record and all other details to the Central or State Government along with the petition received, section 472(3).
4. Does commutation require the convict's consent? No. Section 474 allows the appropriate Government to commute without the consent of the person sentenced.
5. To what may a sentence of imprisonment for life be commuted? To imprisonment for a term not less than seven years, section 474(b).
6. When must a lifer serve fourteen years before release? Where the life sentence was imposed on conviction for an offence for which death is one of the punishments provided by law, or where a death sentence was commuted to life under section 474, section 475.
7. When must a State Government obtain the Central Government's concurrence? Where the offence was investigated by an agency empowered under a Central Act other than the Sanhita, involved the misappropriation, destruction or damage of Central Government property, or was committed by a person in the service of the Central Government acting or purporting to act in his official duty, section 477(1).
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.