Remission, Pardon and Clemency (UGC-NET Unit VII)

The most common NET error in this area is treating remission, commutation, pardon, reprieve and respite as interchangeable words for the same thing. They are not, and each is governed by different rules about who grants it and what stays on the offender's record afterward.

Remission is the narrowest: it shortens the unserved part of a sentence, but the conviction stands exactly as before, with any attached disqualifications intact. It can be individual or collective, the latter announced for categories of prisoners on a fixed date such as a national anniversary.

Commutation changes the kind of punishment rather than simply its length, the classic example being a death sentence commuted to life imprisonment. The offender remains a convict; only the label and severity of the sentence change. A pardon goes further still, aiming to remove the legal consequences of the conviction itself rather than merely reduce the attached punishment, which is why it is the usual remedy sought in wrongful-conviction cases discovered after every appeal has failed.

Reprieve and respite are the pair most often confused. A reprieve is a stay, most often of an execution, that buys time for a petition or further fact-finding rather than granting a final outcome.

A respite is a reduced sentence granted for a specific, usually medical or physical, fact about the individual offender, such as advanced pregnancy or a disabling illness, and is closer to remission in effect but narrower in what triggers it. None of the five is the same as parole, which is conditional release supervised after a fixed portion of a sentence rather than an act of executive mercy.

The Constitution splits clemency power between two executives. Article 72 gives the President power over three categories: sentences by court martial, sentences for offences against Union law, and every death sentence regardless of which law it was imposed under. Article 161 gives a state Governor a parallel power over state-law offences, but a Governor's power does not extend to a full pardon of a death sentence, since that category stays with the Union executive under Article 72.

Alongside these constitutional powers sits an ordinary statutory power of remission held by the appropriate government, previously under the Code of Criminal Procedure, 1973, and now under the Bharatiya Nagarik Suraksha Sanhita, 2023.

This statutory power lets a government suspend or remit a sentence without any constitutional pardon being involved, and it is the mechanism behind collective remission schemes announced on occasions such as Independence Day. A statutory minimum-term floor, carried forward into the new code, blocks a government from remitting certain life sentences before the convict has actually served a minimum period in custody.

In practice, most early releases in India happen through this statutory remission route rather than a presidential or gubernatorial pardon, because collective remission is administratively simpler than an individual constitutional pardon, which is reserved for the more exceptional case.

The Supreme Court addressed the boundary between the constitutional and statutory powers in Maru Ram v. Union of India (1980), a constitution bench ruling that upheld the statutory minimum-term floor and held that the wide language of Articles 72 and 161 does not make the power unguided. It must be exercised on relevant material, for reasons connected to the purpose of punishment, and can be structured by government rules without being taken away.

This case is the anchor for any MCQ testing whether clemency power is absolute. It is not: the executive holds broad discretion, but that discretion is not immune from a structuring floor set by statute, and the reasoning in Maru Ram is what later cases on judicial review build on.

Clemency began as a purely political act immune from judicial oversight, framed as an act of grace rather than a legal entitlement. Kehar Singh v. Union of India (1989) held that the President's power under Article 72 is an executive power, and a court will not sit in appeal over how the President weighed the material before deciding whether to grant or refuse clemency.

But the Court has drawn a line between the merits of a decision and the process behind it. Epuru Sudhakar v. Government of Andhra Pradesh (2006) set out the narrow grounds on which a clemency order can still be struck down: passed without application of mind, resting on wholly irrelevant considerations, arbitrary or mala fide, or discriminating between similarly placed prisoners without a rational basis.

On any of those grounds a court can quash the order and send the matter back for a fresh decision, without itself deciding whether clemency should be granted.

A separate line of cases treats delay itself as a wrong. Shatrughan Chauhan v. Union of India (2014) held that prolonged, unexplained delay in disposing of a mercy petition causes a prisoner mental agony that amounts to a violation of the right to life and personal liberty, and is an independent ground on which a death sentence can be commuted to life imprisonment.