COMMUTATION AND CLEMENCY: LEGAL ANALYSIS

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This article is written by Tanu Sheoran of National Law University an intern under Legal Vidhiya

Table of Contents

Abstract

The concepts of commutation and clemency are cornerstones of the criminal justice system, providing a humanitarian dimension to the otherwise rigid application of penal laws. Rooted in both constitutional provisions and legal traditions, these executive powers function as a vital corrective mechanism within a state’s justice framework. Clemency—manifesting as pardon, reprieve, remission, respite, or commutation—is often exercised to rectify judicial errors, reduce harsh punishments, or uphold principles of mercy. This article explores the jurisprudential foundations, procedural dimensions, and constitutional implications of clemency and commutation in India, while also drawing comparative insights from other jurisdictions. It further examines the evolving judicial attitude towards the use of executive mercy, debates surrounding its arbitrariness and transparency, and the need for balancing legal finality with moral fairness. The discussion is particularly relevant in a constitutional democracy where the protection of life and liberty must coexist with the pursuit of justice and deterrence.

Keywords

Commutation, Clemency, Pardon, Mercy Petition, Article 72, Article 161, Capital Punishment, Judicial Review, Executive Discretion, Rule of Law, Constitutional Powers, Humanitarian Justice

Introduction

In a democratic society governed by the rule of law, the legal system must not only enforce punishments but also temper justice with mercy. The Indian Constitution, much like those of many democratic nations, embeds within its structure the power to grant clemency as a final safeguard against the fallibility of judicial processes. Clemency powers, exercised by the President and the Governors under Articles 72 and 161 respectively, represent the sovereign’s capacity to mitigate the harshness of a sentence, especially in capital punishment cases. The related concept of commutation refers specifically to the substitution of a punishment with a less severe form. Both commutation and clemency serve as instruments of mercy, reformation, and political or diplomatic consideration. While these powers are discretionary, they are not unbridled, and their use has invited judicial scrutiny, particularly when seen as arbitrary or opaque. In a landscape where legal certainty must balance with human rights and ethical governance, clemency powers have become a subject of significant constitutional discourse.

Legal Framework and Constitutional Foundations

The constitutional provisions governing clemency in India are enshrined in Article 72, which empowers the President to grant pardons, reprieves, respites, or remissions of punishment, and to suspend, remit or commute the sentence of any person convicted of an offence. Article 161 vests similar powers in the Governor of a state. While the scope of the President’s powers under Article 72 extends to offences involving union laws, military courts, and death sentences, the Governor’s power is limited to state law offences. These provisions reflect the Indian legal system’s acknowledgment that justice is not infallible and that exceptional circumstances may warrant relief beyond the confines of judicial determination.

The Code of Criminal Procedure, 1973, supplements these constitutional powers through Sections 432 to 435, laying down the procedure for remissions and commutations of sentences. These sections empower the appropriate government to alter or reduce sentences, often after considering the opinions of presiding judges and the nature of the crime committed. The use of these powers must not contravene judicial orders or violate statutory limits, thus creating a legal framework that attempts to reconcile executive discretion with judicial discipline.

Judicial Interpretation and Constitutional Morality

Indian courts have consistently emphasized that the clemency power, while executive in nature, cannot be exercised arbitrarily or in bad faith. In Maru Ram v. Union of India (1981), the Supreme Court held that clemency powers are subject to the discipline of constitutionalism and cannot override the principle of equality under Article 14. The Court stated that even though these powers are not judicial in nature, they are to be exercised on rational and not political grounds. Similarly, in Kehar Singh v. Union of India (1989), the apex court reiterated that the President’s exercise of mercy power under Article 72 is not subject to judicial review on merits but can be challenged if exercised mala fide or in ignorance of relevant facts.

Later rulings further clarified the procedural standards. In Epuru Sudhakar v. Government of Andhra Pradesh (2006), the Court emphasized that clemency decisions must not be motivated by extraneous political considerations or personal biases. The judgment laid down that judicial review is permissible where there is arbitrariness, discrimination, or application of improper principles. Thus, the evolution of Indian jurisprudence reveals that while clemency powers remain a prerogative of the executive, they are not immune to constitutional scrutiny, especially where fundamental rights or procedural fairness are in question.

Commutation of Death Sentence: Shifting Paradigms in Mercy Jurisprudence

In recent decades, the commutation of death sentences has gained prominence in legal and political discourse. The gravity of capital punishment necessitates heightened procedural vigilance and humane reconsideration. Delays in deciding mercy petitions have often become grounds for commutation, as recognized in Shatrughan Chauhan v. Union of India (2014), where the Supreme Court ruled that inordinate and unexplained delays in the disposal of mercy pleas could amount to cruel and inhuman treatment under Article 21.

The decision further expanded the scope of grounds for commutation by including mental illness, prolonged solitary confinement, and procedural lapses in mercy petition processing. The Court also mandated minimum standards of communication with the death row convict and their family, emphasizing the right to dignity even in the face of imminent execution. This marked a shift in Indian death penalty jurisprudence from a narrow legalistic approach to a broader humanitarian interpretation. The judiciary’s evolving stance underscores that commutation is not merely an executive privilege but a constitutional imperative to protect human dignity.

Comparative Insights: Clemency Powers Across Jurisdictions

Globally, clemency remains a recognized sovereign function, though its scope and exercise vary. In the United States, the President holds exclusive power to grant pardons under Article II, Section 2 of the Constitution, often sparking political controversy. The U.S. system includes clemency boards and advisory commissions, though the final decision rests with the executive. In contrast, the United Kingdom’s royal prerogative of mercy has evolved into a more ceremonial function, with practical recommendations made by the Secretary of State for Justice.

Germany’s Basic Law permits state-level clemency powers, exercised through Ministries of Justice, while France’s President can grant clemency based on recommendations from the Ministry of Justice. These models demonstrate diverse practices but also highlight common concerns about transparency, political influence, and consistency. Many jurisdictions, including South Africa and Canada, have moved toward greater procedural safeguards, incorporating judicial review and victim participation in clemency considerations. Such international trends suggest a global convergence toward regulating executive mercy through democratic accountability and legal transparency.

Controversies and Debates: Arbitrary Power or Constitutional Necessity?

Despite their benevolent purpose, clemency powers are often mired in controversy. Critics argue that these powers undermine judicial finality and open doors for political manipulation. The lack of mandatory timelines, clear guidelines, and public reasoning in clemency decisions has been a cause of concern. High-profile mercy pleas—particularly in death penalty cases involving terrorism, political crimes, or communal violence—have been subject to polarizing debates in media and public forums.

Concerns are also raised about selective use of clemency powers based on caste, religion, or political affiliation. In some cases, remission or pardon has been granted despite judicial observations against the same, leading to a loss of public confidence in the legal system. The 2022 remission of convicts in the Bilkis Bano gang rape case stirred national outrage, bringing into focus the opaque nature of executive decisions and the urgent need for codified clemency guidelines.

Proponents, however, emphasize that clemency is an essential check against systemic injustices, wrongful convictions, and excessive punishments. They argue that law without compassion becomes oppressive, and that executive clemency offers a necessary humanizing lens to criminal law, especially in a country with overburdened courts and limited legal access for the marginalized.

The Way Forward: Transparency, Accountability, and Reform

To preserve the legitimacy of clemency and commutation, reforms are essential. Introducing statutory guidelines for the exercise of mercy powers, including detailed procedures, mandatory consultations, and written justifications, would enhance transparency. Institutionalizing clemency boards with representation from judiciary, legal experts, and civil society could democratize the process and prevent political misuse.

The judiciary must continue to play an active role in laying down procedural safeguards, especially in capital punishment cases. Training for prison officials and legal aid mechanisms should also be strengthened to ensure that convicts are aware of their rights and are guided properly through the mercy process. Additionally, public awareness campaigns about clemency and its constitutional role can counter misinformation and foster empathy in criminal justice discourse.

The intersection of mercy and legality demands careful navigation. While commutation and clemency offer a window of hope, they must function within the constitutional architecture of fairness, non-discrimination, and justice. A reimagined clemency regime, grounded in human dignity and guided by transparent principles, is not only desirable but necessary for a mature democratic society.

Conclusion

Commutation and clemency represent the moral conscience of the legal system—a mechanism through which law reaches beyond technicalities to uphold compassion and equity. In India, these powers are constitutionally enshrined and judicially refined, forming a bridge between punishment and mercy, legality and humanity. While challenges related to arbitrariness and political interference persist, the courts have acted as crucial sentinels of constitutional morality, ensuring that mercy is neither capricious nor unaccountable. As the Indian criminal justice system continues to evolve, commutation and clemency must be recognized not as loopholes or exceptions, but as essential expressions of justice that complete the cycle of law. Empowering the process through reform, regulation, and rights-based perspectives will not only strengthen institutional credibility but also reaffirm the Republic’s commitment to both justice and mercy.

References

Maru Ram v. Union of India, AIR 1980 SC 2147.
Kehar Singh v. Union of India, AIR 1989 SC 653.
Epuru Sudhakar v. Government of A.P., (2006) 8 SCC 161.
Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.
Constitution of India, Articles 72 and 161.
Code of Criminal Procedure, 1973, Sections 432–435.
U.S. Constitution, Article II, Section 2.
Royal Prerogative of Mercy, UK Government Judicial Review, www.gov.uk.
Clemency in South Africa, Department of Justice, https://www.justice.gov.za.
Amnesty International, “Clemency and Death Penalty,” https://www.amnesty.org (last visited July 20, 2025).

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