This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and Bharatiya Sakshya Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.
This post analyses the changes made to the provision on commutation of sentences under the Bharatiya Nagarik Suraksha Sanhita Bill, 2023.
In addition to the President or Governor’s constitutional power to commute a sentence, under Art.72 and Art.161 respectively, the Central and the State governments can also statutorily commute a sentence. In the BNSS, Cl.475 titled ‘Power to commute sentence’ lays down the extent of this statutory power. Cl.475 corresponds to s.433 CrPC. However, new changes proposed in the BNSS lead to ambiguity in the manner in which different sentences are to be treated for commutation, while also reflecting a tendency towards enhanced punishments.
At the outset, a comparative table of changes in Cl.475 BNSS against s.433 CrPC is useful:
Changes in Cl.475 of the BNSS against s.433 of the CrPC
| Initial Sentence | Commuted Sentence/Range | |
| Clause 475 BNSS | Section 433 CrPC** | |
| Sentence of Death | Clause 475(a) Imprisonment for life | Section 433(a) Any other punishment provided by the IPC |
| Sentence of Life Imprisonment | Clause 475(b) Imprisonment for a term not less than seven years | Section 433(b) Imprisonment for term not exceeding fourteen years OR fine |
| Sentence of Imprisonment for 7 years or 10 years* | Clause 475(c) Imprisonment for a term not less than three years | – |
| Rigorous Imprisonment | Clause 475(d) Simple imprisonment for any term to which that person might have been sentenced | Section 433(c) Simple imprisonment for any term to which that person might have been sentenced OR fine |
| Imprisonment up to 3 years* | Clause 475(e) Fine | – |
* New category created under the BNSS
** Section 433(d) CrPC allows for the commutation of ‘a sentence of simple imprisonment, or (sic) for fine’, which has been deleted in the proposed bill.
I. Limit on Executive Discretion and Enhanced Punishments
The first major change brought about by the BNSS is with respect to the limit imposed on the commutation of a death sentence. Under s.433(a) CrPC, a sentence of death could be commuted to ‘any other punishment’ stipulated in the IPC. However, the BNSS restricts the discretionary power of the government by limiting the scope of commutation of a death sentence to a sentence of life imprisonment alone. However, a prisoner whose death sentence has been commuted to life imprisonment continues to be eligible for consideration for remission after completion of fourteen years of imprisonment, under Cl.476. Nevertheless, the change in Cl.475(a) limits the power of the government to directly commute a death sentence to any term sentence.
In Cl.475(b) BNSS, for the commutation of a sentence of imprisonment of life, the words imprisonment for a term ‘not exceeding fourteen years or of fine’ of the CrPC have been replaced with ‘not less than seven years’. Thus, the BNSS removes the upper limit of fourteen years created by the CrPC. Instead, the BNSS creates a lower limit of seven years, thereby removing any restrictions on the maximum period of sentence that the government can impose while commuting a sentence of life imprisonment.
Thus, changes proposed through Cls.475(a) and (b) limit the discretionary power of commutation by governments, while also tending towards enhanced punishments.
II. Overlaps and confusion in categorisation of punishments under Cl.475
Cl.475(c) has been newly added in the BNSS which states that a sentence of imprisonment for seven years or ten years can be commuted to imprisonment for a term not less than three years. Curiously, this sub-clause does not mention a range between seven to ten years but only applies to two specific terms of imprisonment, that is either seven years or ten years. It also does not mention the description of imprisonment where sub-clause (c) will be applicable – simple imprisonment or rigorous imprisonment – thus, leaving the possibility of overlap with sub-clause (d) which applies to all sentences of rigorous imprisonment.
This overlap can be understood with the help of an hypothetical example. A and B get convicted separately, under Cl.69 of the BNS, punishable with imprisonment of either description for a term which may extend to ten years and a fine. A gets a sentence of rigorous imprisonment for seven years while B gets a sentence of rigorous imprisonment for eight years. Under Cl.475 of the BNSS, the only sub-clause applicable to B is sub-clause (d) that allows for commutation of a sentence from rigorous imprisonment to simple imprisonment. Thus, B’s sentence can only be commuted to simple imprisonment of eight years. However, for A, both sub-clause (c) and sub-clause (d) could be applicable due to the overlap enabled by the BNSS. If Cl.475(c) is applied, then A’s sentence of seven years can be commuted to that of three years (and not below that). Whereas, if Cl.475(d) is applied, their sentence can only be commuted from rigorous imprisonment to simple imprisonment for the term of their original sentence. Depending upon the provision applied, the commuted sentence will vary.
A situation of such overlap is missing from the CrPC because rather than classifying sentences on the basis of fixed terms, s.433 CrPC provides rules for commutation of specific categories of punishment provided under s.53 IPC. Therefore, each sub-section in s.433 pertains to distinct types of punishment: sentence of death, life imprisonment, rigorous imprisonment or simple imprisonment. While s.53 IPC has been retained in the BNS as Cl.4, the same logic of categorisation for commutations does not extend to Cl.475 BNSS.
Another implication of straying away from this logical categorisation can be seen in Cl.475(e). From s.433(d) CrPC, sub-clause (e) removes ‘simple imprisonment’ and replaces it with ‘imprisonment up to three years’. The most absurd impact of the removal of ‘simple imprisonment’ in the BNSS is that a sentence of simple imprisonment, which is not either of a term of seven years, ten years or up to three years, appears to be ineligible for commutation under Cl.475. The only provisions where simple imprisonment can be accommodated are sub-clauses (c) and (e) but they only apply to terms of imprisonment for ten years, seven years or up to three years. For example, in the previous illustration, if B gets a sentence of simple imprisonment of 8 years, then they would entirely be out of consideration for commutation due to the anomaly created by Cl.475 BNSS.
Further, since sub-clause (d) is applicable to all cases of rigorous imprisonment, there is a possibility of overlap of this provision with sub-clause (e) which pertains to imprisonment of either description up to three years. Therefore, rigorous imprisonment up to three years can either be commuted to simple imprisonment (as per (d)) OR be commuted to fine (as per (e)).
III. Removal of Fines
BNSS removes the scope of commutation of any sentence above three years into a fine. Sub-clauses (a), (b) and (d), that have been taken from the corresponding provision in the CrPC allowed for the possibility of commutation of term sentences to fines. In the proposed bill, only imprisonment (of either description) up to three years, can be commuted to fine. This is a significant limitation from the provision for commutation under s.433 CrPC.
