Constitutional Provisions

Article 72 & Article 161

  • Article 72 and Article 161 define the ancillary powers of the President & Governor of the State of suspension, commutation, and remission.

Classification of powers

The Constitutional provisions confer the following powers on the President and the Governor to grant:

  • Pardons
  • Reproves
  • Respites
  • Remissions
  • Suspend, remit or commute the sentence

Factors to be Considered

  • The President or the Governor has to seek the aid and advice of their council of ministers.
  • They have to obey the standards and guidelines that are intelligible and integrated with the powers so conferred.
  • The President and the Governor are expected to use their discretion in the most judicious manner.


  • A person who is convicted and sentenced to imprisonment for life is bound to serve the rest of his life term in prison.
  • However, there is an exception to the general rule, where in the appropriate government may commute or remit the sentence in the exercise of powers given under sections 432 and 433 of Cr.P.C.

Meaning of Remission

  • When part of the sentence which the prisoner was to otherwise serve in the jail is let off; such act is called remission of sentence.

Two fundamental principles in sentencing

  • Firstly, the sentencing is a judicial function and the executive cannot alter the sentence itself;
  • Secondly, the executive can only remit, commute or suspend the sentence, however, such action by the Government does not interfere with the conviction of the criminal.
  • Therefore, remission of punishment does not mean acquittal.

Executive Function of the Government

  • The right to grant remission is governed by the provisions of S.432.
  • The Court cannot grant remission.
  • The power to grant pardon or remission is in essence an executive function, which is to be exercised by the Head of the State.

Remission cannot be claimed as a matter of Right

  • The right to be considered for remission is a legal right of the prisoner.
  • However, the right to get remission is not a right of the prisoner.
  • The very concept of remission lies on the mercy of the government and no one can claim a right to obtain mercy.
  • Similarly, the principles of natural justice do not apply in the case of granting remission to the prisoner.

Judicial Review – exercise of the power of remission

  • It is pertinent to note that the exercise of the power of remission of the sentence is not immune from judicial review.
  • The Higher Judiciary may intervene in the exercise of the power of remission in any of the following cases:
  • Political vendetta;
  • Party favoritism;
  • Extraneous and mala fide factors;
  • Class divide;
  • Caste divide;
  • However, there can be justified classification of prisoners on basis of age, nature of offense, etc.

The stage when the power can be exercised – S.432(1)

  • The power to grant remission can be exercised ‘at any time’ after the sentence is passed.
  • However, the expression ‘at any time’ does not lead to the inference that the Government can exercise such power when the Court is hearing the appeal against conviction and sentence.

Opinion of the Court which passed the Sentence – S.432(2)

  • Once the government receives the application for remission of sentence, it is duty-bound to take the opinion of the Court/Judge who passed the order of conviction.
  • If the said opinion is not taken, then any order of remission passed by the Government would be bad in law.
  • However, non-compliance would not render the decision invalid for want of jurisdiction.

Conditional Remission – S.432(3)

  • In case of breach of a condition under conditional remission, such breach would not lead to a revival of the sentence.
  • It is open to the Government to decide whether the remission shall be canceled or not.
  • If the Government decides to cancel the order of remission upon breach of condition, in such case the convict can be arrested by the Police without warrant and remanded to undergo the remaining part of the sentence.
  • The condition has to be fulfilled by the person in whose favor the sentence has been remitted or independent of his will. – S.432(4)

 Procedure for filing petition/application for remission – S.432(5)


  • The government can provide rules governing the procedure of filing the petition for being considered for remission.
  • The following conditions need to be fulfilled in case a petition is made on behalf of a male person above the age of 18:
  1. When the person is in jail, the petition shall be presented by the Jail Officer in charge; or
  2. Where the petition is filed by any other person and it contains a declaration that the person sentenced is in jail.

Appropriate Government – S.432(7)

  • Central Government – Offence is against any law relating to a matter to which the executive power of the Union extends.
  • State Government – In other cases, the Government of the State where the offender is sentenced or the order is passed.
  • In order to ascertain the appropriate government, the offence has to be seen in the backdrop of the three lists provided under the Seventh Schedule of the Constitution.

Judicial Function vis-à-vis Executive Function

  • The Court cannot order a minimum period of imprisonment that a person shall undergo before he can be considered for granting remission.
  • To decide the guilt or innocence of the accused is the domain of the Courts. Hence, it is a judicial function.
  • The executive’s power to grant pardon is in furtherance of executive functions, independent of the Courts power to pronounce on the innocence or guilt of the accused.

Both the judicial and executive functions and powers are exercised in totally different arenas; and they do not overlap or intersect each other.


Written By: Arvind Yadav (Advocate)  


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