Remission of Sentence in India: Understanding Mercy Powers Under the BNSS and the Constitution

Introduction

Prisons are often called reform homes because their purpose is not only to punish people who commit crimes but also to help them change their behaviour and become responsible members of society. The ultimate goal of the criminal justice system is not just to punish offenders, but to reduce crime by giving them an opportunity to learn from their mistakes and reform themselves.

Generally, courts award three types of punishment for criminal offences: imprisonment, a fine, or both imprisonment and a fine. During their time in prison, many prisoners genuinely improve their behaviour, attitude, and mindset. If a person has truly reformed, keeping them in prison for the entire sentence may not always serve the purpose prisons exist to serve.

To recognise such situations, the law gives special powers to the President of India and, in certain cases, the Governor of a State, to reduce, suspend, remit, or otherwise modify a sentence. These powers are called mercy powers or clemency powers. These powers help ensure that justice is balanced with mercy and rehabilitation.

In this blog, we will examine the different ways a sentence can be reduced or modified, the meaning of remission, the important factors considered before granting such relief, and the legal provisions that govern these powers.

Understanding Different Forms of Sentences and Their Modification

Once a court convicts a person and awards a punishment, the legal process does not end there. The law also sets out rules on how the punishment should be carried out and whether it can be changed in special circumstances. Depending on the circumstances, a sentence may be executed as ordered, temporarily suspended, reduced, or even changed into a less severe punishment.

1. Execution of Sentences

Execution of a sentence means carrying out the punishment ordered by the court. After the court issues its judgment, the punishment must be carried out. For example, if a person is sentenced to 5 years in prison, sending them to jail is the execution of the sentence. Or if the court orders a fine, collecting the fine is also the execution of the sentence.

1. Suspension of Sentence

Suspension means temporarily stopping the punishment for some time. The sentence is not cancelled; it is only put on hold. The person does not have to undergo the punishment during the suspension period. However, the punishment can continue later. For example, a prisoner is granted a 30-day suspension of his sentence to attend a close family member’s funeral. After 30 days, he must return to prison to complete the remaining sentence.

1. Remission of Sentence

Remission means reducing the whole or part of the punishment without changing its nature. The punishment remains the same, but the person spends less time in prison.[1] For example, if a person is sentenced to 10 years’ imprisonment and receives 2 years’ remission, they may be released after serving 8 years, subject to the applicable legal rules.

1. Commutation of Sentence

Commutation means changing a punishment into a lighter punishment. Instead of reducing the time, the law changes the type or seriousness of the punishment. For example, a death sentence may be changed to life imprisonment, or a life imprisonment may be changed to a fixed term of imprisonment, if permitted by law, or a sentence of rigorous imprisonment may be changed to simple imprisonment.

Section 473 BNSS – Statutory power to suspend or remit a sentence

Section 473 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) gives the appropriate Government (Central Government or State Government) the power to temporarily stop a sentence (suspension) or reduce a sentence (remission). This power is exercised after a person has been convicted and sentenced by a court. The purpose of this provision is to ensure that the Government can show mercy or grant relief in deserving cases, such as when a prisoner has shown good behaviour, has serious medical issues, or there are other special circumstances.

The Government has the authority to suspend the sentence or remit the sentence. While doing so, the government can impose certain conditions that the prisoner must agree to. The conditions attached to suspension or remission can be of two types:

1. Conditions to be fulfilled by the prisoner- These are conditions that are under the prisoner’s control.
2. Conditions beyond the prisoner’s control- Sometimes the condition depends on an event that the prisoner cannot control.

If the conditions are violated, the Government can cancel the suspension or remission, order the person’s arrest without a warrant (if the person is outside prison), and require the person to serve the remaining part of the sentence.

When someone applies for suspension or remission, the Government may ask the judge who convicted the person or confirmed the conviction for their opinion, helping the Government make a fair decision. If asked, the judge has to give his or her opinion on whether the request should be accepted or rejected, the reasons for that opinion, and a certified copy of the trial record or relevant court documents.

The Government can make rules on how applications for suspension or remission should be submitted, who may submit them, and the procedure for considering them. However, if the sentence is not merely a fine and the prisoner is above 18 years of age, the application will generally be considered only if the person is already in jail. In such a case, the application should be filed in one of the following ways:

• If the prisoner files the application, it must be sent through the jail superintendent or officer in charge of the jail.
• If another person files it on the prisoner’s behalf, the application must clearly state that the prisoner is in jail.

Application on Other Criminal Court Orders

Section 473 is not limited to imprisonment alone. It also applies to any order passed by a criminal court that restricts a person’s freedom or imposes a legal responsibility or liability on the person or their property. For example, if a criminal court passes an order restricting a person’s movement or directing action against the person’s property, the Government may also exercise its powers under this section, wherever applicable.

Who Has the Power to Grant Remission?

The Constitution of India understands that every case is different and that sometimes continuing a punishment exactly as ordered by the court may not be the fairest decision. A prisoner may have genuinely changed, new facts may come to light, or there may be humanitarian reasons to give some relief. The constitutional powers are broader and cannot be taken away by an ordinary law. Therefore, the Constitution gives the President of India and the Governor of a State the power to reduce, suspend, remit, or change a sentence in suitable cases.

Under Article 72 of the Indian Constitution, the President has the power to pardon, remit, suspend or commute any sentence. However, this power is not available in every criminal case. It can only be exercised in three situations-

1. Cases involving Court-Martial
2. Offences Relating to Matters Under the Executive Power of the Union
3. Death Sentence Cases

Article 161 confers similar powers on the Governor of a State, but only in matters over which the State Government has executive power. The difference between the pardoning power of the President and that of the Governor is that the Governor does not enjoy the power to grant a pardon for a death sentence. The Governor can suspend, remit, or commute a death sentence.[2] However, unlike the President, the Governor cannot grant an absolute pardon that completely removes a death sentence.

Their purpose is to ensure that justice is not only about punishment but also about fairness, compassion, and giving deserving prisoners a second chance.

Conclusion

Punishment is not always enough to achieve justice. Sometimes, a person who has genuinely changed, shown good behaviour, or is in special circumstances deserves a chance for mercy. This is why the Bharatiya Nagarik Suraksha Sanhita, 2023, and the Constitution of India provide mechanisms to reduce, forgive, or modify sentences when necessary.

Courts decide the punishment after a conviction, but the Government, the President, and the Governor also have important, limited powers to adjust those punishments in certain cases. These powers do not weaken the justice system; they help ensure that justice is fair and kind, and that it can change with circumstances. By balancing punishment with kindness and the chance for rehabilitation, the law shows that prisons should not only punish but also help offenders reform and return to society as responsible citizens.

[1] Remission, Drishti Judiciary, https://drishtijudiciary.com/to-the-point/bharatiya-nagarik-suraksha-sanhita-&-code-of-criminal-procedure/remission.

[2] Nishtha Pandey, Execution, Suspension, Remission and Commutation of Sentences, iPleaders (Dec. 16, 2019), https://blog.ipleaders.in/execution-suspension-remission-and-commutation-of-sentences/