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Implications of Changes in Commutation via Bharatiya Nagarik Suraksha Sanhita

Commutation has been a long-standing facet of the criminal justice system, providing a mechanism for substituting a more lenient penalty in lieu of a previously imposed criminal sentence. This practice, rooted in the state’s sovereign powers to grant mercy, has served to modulate the rigidity of legal judgments with nuances of humanity and compassion. The core premise of commutation has been to ensure that while justice is delivered, it also incorporates individual extenuating circumstances.

However, the recent developments via the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which brought about amendments to the Criminal Procedure Code (CrPC), have highlighted the debates on India's approach towards commutation.

Comparison between Section 475 and Section 433

Contrasting Section 475 of the BNSS with Section 433 of the earlier CrPC, there emerge evident distinctions. Previously, the CrPC permitted a death sentence to be commuted to any penal provision detailed by the Indian Penal Code (IPC). Conversely, the BNSS limits such commutation exclusively to life imprisonment. Furthermore, where a life sentence could previously be commuted to a term not exceeding fourteen years or to a fine, the BNSS prescribes a more stringent minimum of seven years. It also meticulously outlines commutation criteria for sentences between seven to ten years.

The BNSS's emphasis on a stricter minimum for commutation underscores a clear tilt towards deterrence which may be indicative of a desire to underline the severity associated with specific offences, ensuring convicts serve significant parts of their sentences.

Constitutional Perspectives

From a constitutional lens, Article 21, which enshrines the Right to Life and Liberty, emerges as a cornerstone in the discourse on commutation. This Article emphasizes on the quality of life, which extends to fair treatment under the legal system. It could be argued that section 475 may limit the scope of personal liberty for convicts, especially those with potential for rehabilitation. A more stringent commutation policy, like that outlined in S.475, could be seen as a limitation on a convict's opportunity for a second chance or rehabilitation. While the right to life for victims is undeniably paramount, the right of the accused to a fair chance at reform and rehabilitation also finds its root in Article 21 (see: Sunil Batra v. Delhi Administration).

However, the more stringent framework of the BNSS, can also be seen as a calibrated response to changing societal mores on the gravity of certain crimes, especially those warranting capital punishment (such as heinous counts of rape). By limiting the avenues for commutation, there is an implicit assertion that certain crimes bear such a significant weight on the society (see: Jai Kumar v. State of M.P.) that their punishment, once adjudicated, should remain largely unaltered in order to placate the apprehensions that its occurrence would have created on the society at large. To put it succinctly, crimes that shake the moral foundations of society, ought to have a higher threshold of punishment, and by extension, commutation.

Furthermore, the principle of checks and balances, an intrinsic design of the Constitution, is furthered by the BNSS. Historically, the power of commutation has served as a bridging mechanism between the constructs of the judiciary and the more fluid, often compassionate, policy-oriented prerogatives of the executive. The judiciary, operating within the strict confines of the law, delivers verdicts based on balancing principles limited by the provisions of law, whereas the government, with its power of clemency, has the discretion to temper and mitigate these decisions in light of factors that may not have been considered during the trial.

The BNSS, by introducing more explicit guidelines for commutation, seems to tread this delicate balance (see: Kehar Singh v. Union of India). On one hand, it acknowledges the judiciary's role in delivering justice. On the other, it signals to the executive that while their discretion in matters of clemency is respected, it cannot be exercised so blatantly as to constitute a grave miscarriage of justice by itself. This prevents denial of effective justice to the victim or their survivors, all the while creating space for compassion towards an unfortunate convict and ensures a symbiotic relationship where neither branch usurps the role of the other, thus maintaining the constitutional balance.

In addition, the significance of Article 14 in this narrative cannot be understated. Every individual, irrespective of their background or the nature of their crime, is entitled to equality before the law (see: Maneka Gandhi v. Union of India). In the realm of commutation, this translates to consistent application of guidelines and the elimination of potential biases or arbitrariness. The BNSS, by crafting clearer criteria, serves to standardize the commutation process. This is vital for two reasons. First, it reinforces public faith in the justice system, ensuring that individuals believe in its impartiality. Second, it serves as a deterrent for potential future crimes.

If individuals are certain about the consequences of their actions - in this case, the limited possibility of sentence reduction - it might deter them from committing crimes, adhering to the principle that certainty of punishment, rather than its severity, is a more effective deterrent.

Reconciling the BNSS with the Rehabilitation Imperative

The BNSS delineates stricter commutation guidelines, reflecting a pronounced tilt towards deterrence in India's criminal jurisprudence. At first glance, this might seem antithetical to the concurrent judicial emphasis on reformation and rehabilitation. However, a deeper exploration suggests that the two can be harmonized in a balanced justice system. While the BNSS introduces a more rigorous framework for commutation, underscoring the gravity of certain offenses, it doesn't negate the possibility of reform or rehabilitation. It balances the proportions of crime and punishment (see: Jaswinder Singh (Dead) through Legal Representative v. Navjot Singh Sidhu & Ors.) and can also be seen as a response to the call for greater accountability and justice, especially for heinous crimes, aligning with societal expectations.

The legal landscape in India, as evidenced by landmark judgments, has repeatedly underscored the importance of evaluating an offender's potential for rehabilitation. In cases like Rajendra Pralhadrao Wasnik v. State of Maharashtra, the courts have recognized factors like socio-economic background, a convict's previous record, and commendations as indicators of potential reformation. These decisions reinforce the belief that while punishment is essential, it should not overshadow the potential for an individual's rehabilitation.

However, the judicial stance, as indicated in decisions like Bhagwani v. State of Madhya Pradesh, also showcases an awareness of the varying nature of crimes and the necessity to treat them differently. In the present case, while the death sentence given to the accused was commuted, given the severity of his offence, the sentence was reduced to 30 years without remission. This serves to show that while rehabilitation remains a key tenet, it is juxtaposed against the need to serve justice, protect societal interests, and uphold the rights of victims.

The adoption of the BNSS's more stringent commutation parameters can be viewed as an attempt to strike a balance in this intricate dance between rehabilitation and retribution. While it may cause harm to the cause of rehabilitation in certain cases, it does not dismiss the prospect of rehabilitation completely, but rather conditions it to allow what the law deems to be adequate punishment.


The legislative revisions proposed by the BNSS portray a nuanced shift in thinking in India's perspective towards commutation. Although the principle of commutation endures, its governing conditions have witnessed transformative modifications. As the legal ecosystem of India continues to mature, the ever-present, pressing challenge remains: to dispense justice with precision, compassion, and a continuous recognition of the potential for rehabilitation and mercy.

Aaryan Dhasmana and Shreya Sethi are students at NALSAR University of Law, Hyderabad

Image Source: Pintrest

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