Bharatiya Nyaya Sanhita, 2023 - Chapter II: Of Punishments

Section 5 BNS: Commutation of Sentence

Section 5 of the Bharatiya Nyaya Sanhita, 2023 ("BNS") empowers the appropriate Government to commute a punishment imposed under the Sanhita, without requiring the offender's consent, in accordance with Section 474 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ("BNSS").

Current legal position: The BNS came into force on 1 July 2024, except Section 106(2). Section 5 is in force and operates together with Section 474 BNSS.

Meaning of commutation under Section 5 BNS

Commutation means substitution of one punishment by another punishment authorised by law. Section 5 gives this power to the appropriate Government and expressly states that the offender's consent is not necessary.

The power is not unlimited. Section 5 itself requires commutation to be made in accordance with Section 474 BNSS, which specifies the legally permitted forms of substitution.

What does "appropriate Government" mean?

Central Government For a sentence of death, or for an offence against a law concerning a matter to which the executive power of the Union extends, the appropriate Government is the Central Government.

State Government Where the sentence, whether death or otherwise, relates to an offence against a law concerning a matter to which the executive power of the State extends, the appropriate Government is the Government of the State within which the offender is sentenced.

Section 474 BNSS: permitted forms of commutation

Section 474 BNSS sets out the statutory substitutions that the appropriate Government may make without the consent of the person sentenced. In substance, the provision permits commutation of:

Death sentence A sentence of death may be commuted to imprisonment for life.

Life imprisonment A sentence of imprisonment for life may be commuted to imprisonment for a term of not less than seven years.

Imprisonment of seven years or more It may be commuted to imprisonment for a term of not less than three years.

Imprisonment below seven years It may be commuted to fine in accordance with Section 474 BNSS.

Important distinction: Section 5 BNS is the substantive authority recognising the Government's power to commute punishment under the BNS. Section 474 BNSS supplies the procedural and substantive framework for the permitted commutation. The two provisions should therefore be read together.

Full text of Section 5 - Commutation of sentence

5. The appropriate Government may, without the consent of the offender, commute any punishment under this Sanhita to any other punishment in accordance with section 474 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Explanation.-For the purposes of this section the expression "appropriate Government" means,- (a) in cases where the sentence is a sentence of death or is for an offence against any law relating to a matter to which the executive power of the Union extends, the Central Government; and (b) in cases where the sentence (whether of death or not) is for an offence against any law relating to a matter to which the executive power of the State extends, the Government of the State within which the offender is sentenced.

Explanation.-For the purposes of this section the expression "appropriate Government" means,- (a) in cases where the sentence is a sentence of death or is for an offence against any law relating to a matter to which the executive power of the Union extends, the Central Government; and (b) in cases where the sentence (whether of death or not) is for an offence against any law relating to a matter to which the executive power of the State extends, the Government of the State within which the offender is sentenced.

(a) in cases where the sentence is a sentence of death or is for an offence against any law relating to a matter to which the executive power of the Union extends, the Central Government; and (b) in cases where the sentence (whether of death or not) is for an offence against any law relating to a matter to which the executive power of the State extends, the Government of the State within which the offender is sentenced.

(b) in cases where the sentence (whether of death or not) is for an offence against any law relating to a matter to which the executive power of the State extends, the Government of the State within which the offender is sentenced.