PARDON, REMISSION AND

COMMUTATION OF SENTENCE

Dr. Moirangmayum Sanjeev Singh

Assistant Professor
Centre for Police Administration
Panjab University
• In common term, to pardon means to forgive a person of his offence. The
term 'pardon' has been defined as an act of grace, proceeding from the
power entrusted with the execution of the law, which exempts the
individual on whom it is bestowed upon, from the punishment the law
inflicts for a crime he has committed.
• It changes both the punishment prescribed for the offence and the guilt of
the offender.
• A pardon is a government decision to allow a person who has been
convicted of a crime to be free and absolved of that conviction, as if they
were never convicted.
• Today, pardons are granted in many countries when individuals have
demonstrated that they have paid their debt to society, or are otherwise
considered to be deserving of them.

• Pardons are sometimes offered to persons who were either wrongfully

convicted or who claim that they were wrongfully convicted.
• Cases of wrongful conviction are nowadays more often dealt with
by appeal rather than by pardon; however, a pardon is sometimes offered
when innocence is undisputed in order to avoid the costs that are
associated with a retrial.
• In other words, grant of pardon wipes off the guilt of accused and brings
him to the original position of innocence as if he had never committed
the offence for which he was charged. Under Indian law, the President of
India and the Governors of States have been given the power to grant
pardons, reprieves, respites or remissions of punishment or to suspend,
remit or commute the sentence. The law governing grant of pardon is
contained in Articles 72 and 161 of the Constitution.

• Granting of pardon may be of two kinds

• Absolute

• Conditional
• Absolute:

• Absolute pardon may blot out the guilt itself. It does not amount to an
acquittal unless the Court otherwise directs. The accused is released
permanently without requiring any condition to be fulfilled.
• Conditional:

• Under this pardon, the offender is let off subject to certain conditions.
The breach of these conditions will lead to revival of his sentence and
he shall be subjected to the unexhausted portion of his punishment.
Purpose of Granting Pardon
• Pardon may substantially help in saving an innocent person from being
punished due to miscarriage of justice or in cases of doubtful conviction.
• The hope of being pardoned itself serves as an incentive for the convict to
behave himself in the prison institution and thus, helps considerably in
solving the issue of prison discipline.
• It is always preferable to grant liberty to a guilty offender rather than
sentencing an innocent person.

• The object of pardoning power is to correct possible judicial errors, for no

human system of judicial administration can be free from imperfections.
Power of pardoning in various
countries
• The modern practice of pardoning find its origin in the British system in
which it was a Royal Prerogative of the King to forgive.
• It also finds mention in the code of Hammurabi, a series of edicts that
were developed in Babylon nearly 4,000 years ago.
• During the medieval period, pardon was extensively used as a method of
reducing overcrowding in prisons during war, political revolt etc.

• In modern democratic countries, the power to grant pardon or clemency is

vested in their executive heads.
• USA
• The American Constitution gives the President the power to grant reprieves or
pardons for offences against the USA. except in case of impeachment.
However, this power is available only in case of violation of Federal law and
pardon in the case of violation of a State law has to come from the Governor
of the State concerned.
• UK

• In UK, the Constitutional monarch can pardon or show mercy to a conviction

on ministerial advice.

• Canada
• In Canada, pardons are considered by the National Parole Board under the
Criminal Records Act.
• India -
• In India, the power to grant pardon is conferred upon the President of India and the
Governors of States under Articles 72 and 161 of the Constitution of India.
• Constitutional Provisions - Article 72
• The President shall have the power to grant pardons, reprieves, respites or
remissions of punishment or to suspend, remit or commute the sentence of any
person convicted of any offence

– in all cases where the punishment or sentence is by a Court Martial;

– in all cases where the punishment or sentence is for an offence against any
law relating to a matter to which the executive power of the Union extends;

– in all cases where the sentence is a sentence of death.

• Article 161
• Power of Governor to grant pardons, etc, and to suspend, remit
or commute sentences in certain cases The Governor of a State
shall have the power to grant pardons, reprieves, respites or
remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence against any law
relating to a matter to which the executive power of the State
extends
Process of granting pardon in India
• The process starts with filing a mercy petition with the President under
Article 72 of the Constitution.
• Such petition is then sent to the Ministry of Home Affairs in the Central
Government for consideration.
• The above mentioned petition is discussed by the Home Ministry in
consultation with the concerned State Government.

• After the consultation, recommendations are made by the Home Minister

and then, the petition is sent back to the President.
Difference between pardoning powers
of President and Governor
• The scope of the pardoning power of the President under Article 72 is
wider than the pardoning power of the Governor under Article 161.
• The power of the President to grant pardon extends in cases where the
punishment or sentence is by a Court Martial but Article 161 does not
provide any such power to the Governor.
• The President can grant pardon in all cases where the sentence given is
sentence of death but pardoning power of Governor does not extend to
death sentence cases.
Problems
• Pardon as a mode of mitigating the sentence of the accused has always
been a controversial issue for a long time.
• Those who reject pardon as an effective measure of mitigating
circumstances argue that the power to pardon is often misused by the
executive.
• There is a possibility that the convict may procure his release from prison
by exerting undue influence on the executive authority.

• To avoid these flaws, in most of the countries, there is a provision for

judicial review of the pardon granted in the event of grounds for pardon
being found unsatisfactory.
Remission
• Remission – cancellation of a charge or penalty
• If you have been imprisoned and part of your sentence is remitted,
this means that you do not have to remain in prison for the full
period of your sentence. For example, if you have been sentenced
to 8 years' imprisonment, you may be released after 6 years.

• The effect of an order of remission is to entitle the prisoner to his

freedom on a certain date

• Therefore, once that day arrives. he is entitled to be released, and

in the eye of law he is a free man from that moment.
• As soon as there is a breach of the conditions of the remission, the
remission can be cancelled and the prisoner committed to custody to
undergo the unexpired portion of the sentence.

• The details of remission systems vary widely between the different

jurisdictions, with short sentence prisoners being ineligible for remission in
some cases.

• Prison administrators frequently argue that remission systems are a

necessary aid to control, as they encourage good behaviour, but it is
common practice for maximum remission to be granted in all cases except
where prisoners have been charged with offences while in prison.
Provisions of Remission
• By virtue of Article 72 of the Constitution of India the President is having
the power to grant pardon and to suspend, remit cm: commute sentences
passed by courts.
• Similarly the Governor of a State is vested with the power to grant
pardons, reprieves, respites or remissions of punishment or to suspend,
remit or commute the sentence of any person convicted of any offence
against any law relating to a matter to which the executive power of the
State extends under article 161.
• Apart from the powers conferred on the President of India and the
Governors, Section 432 of the Criminal Procedure Code empowers the
government to suspend or remit sentence.
Process of Remission
• Sec 432 - When a person has been sentenced to punishment for an
offence, the government may at any time and with or without conditions,
suspend the execution of a sentence or remit the whole or part of the
punishment under this section.
• The procedure to be followed by the government is also enumerated in
this section.
• On receiving any application for the suspension or remission of a sentence,
the government has to require the concerned court to state its opinion
with reasons as to whether the application should be granted or refused
• A certified copy of the records has to be sent along with such opinion.

• The condition on which the sentence is suspended or remitted may be one

to be fulfilled by the offender or one independent of his will
• The government may cancel the suspension or remission of a sentence, if
in its opinion the condition for granting such suspension or remission is
not fulfilled

• the offender may thereupon, if at large, remanded to undergo the

unexpired portion of the sentence.

• breach of any condition of suspension or remission, the sentence is not

automatically revived
Types
• ordinary remission and special remission
• Ordinary remission at the scale of two days per month can be earned by a prisoner
if his conduct inside the prison is good.
• This is intended to maintain prison discipline by the prisoners and for their
co-operation in prison administration.

• For special service rendered by the prisoner special remission is allow

• Assisting in detecting or preventing breaches of prison discipline or
regulations,
• Protecting an officer of the prison from attack,
• Assisting an officer of the prison in the case of outbreak of fire or similar
emergency,
• Apart from that special remission for 15 days is to be granted to a prisoner
donating blood on every such occasion.
• Special remission not exceeding sixty days per year can be awarded by the
Inspector General or Government and not exceeding thirty days per year
can be awarded by the Superintendent for special services rendered by the
prisoners
• The total remission awarded to a prisoner cannot exceed one third of his
sentence
Violation of Condition of Remission
• Is a Specific Offence

• Section 227 of the Indian Penal Code deals with violation of the conditions
of remission of a punishment.
• Sec 227 - Whoever, having accepted any conditional remission of
punishment, knowingly violates any condition on which such remission
was granted, shall be punished with the punishment to which he was
originally sentenced, if he has already suffered no part of that punishment,
and if he has suffered any part of that punishment, then with so much of
that punishment as he has not already suffered.
• The offence under this section is not cognizable and a summons shall
ordinarily issue in the first instance.
• It is neither bailable nor compoundable, and is triable by the court by
which the original offence was triable.
• It is for the court to decide whether a conditionally released prisoner has
violated the conditions on which remission was granted to him.
Commutation
• In law, a commutation is the substitution of a lesser penalty for the
sentence given upon one's conviction of criminal allegations.
• The penalty can be lessened in severity, in duration, or both.
• Unlike most pardons, a commutation does not affect the status of a
defendant's underlying criminal conviction.
• Although the concept of commutation may be used to broadly describe
the substitution of a lesser criminal penalty for the original sentence.
• some jurisdictions have historically used the term only for the substitution
of a sentence of a different character than was originally imposed by the
court. For example, the substitution of a sentence of parole for the original
sentence of incarceration.
• A commutation does not reverse a conviction and the recipient of a
commutation remains guilty in accordance with the original conviction.
• For example, someone convicted of capital murder may have their
sentence of death commuted to life imprisonment, a lessening of the
punishment that does not affect the underlying criminal conviction, as
may occur on a discretionary basis or following upon a change in the law
or judicial ruling that limits or eliminates the death penalty.
Conditions
• In some jurisdictions a commutation of sentence may be conditional,
meaning that the convicted person may be required to abide by specified
conditions or may lose the benefit of the commutation.

• The conditions must be lawful and reasonable, and will typically expire
when the convicted completes any remaining portion of his or her
sentence.

• For example, the pardon may be conditioned upon the person's being a
law-abiding citizen, such that if the beneficiary of the commutation
commits a new crime before the condition expires the original sentence
may be restored.
• Section 433 in The Code Of Criminal Procedure, 1973 - Power to commute
sentence. The appropriate Government may, without the consent of the
person sentenced, commute-

• a sentence of death, for any other punishment provided by the Indian

Penal Code;
• a sentence of imprisonment for life, for imprisonment for a term not
exceeding fourteen years or for fine;

• a sentence of rigorous imprisonment, for simple imprisonment for any

term to which that person might have been sentenced, or for fine;

• a sentence of simple imprisonment, for fine.

Violation
• Violating any of the conditions of a commutation typically voids the commuted

sentence and authorizes the government to reinstate the original sentence. It

may also mean the prisoner has to serve the maximum term of the original

sentence.

• If the commutation order authorizes it, someone who violates a condition can

be summarily arrested and sent back to prison to serve the original

sentence—without a hearing or even an explanation of how he violated the

condition.

• If the violation is the commission of another crime, the new crime's sentence

usually won't start until after the offender completes the original sentence.