“The appropriate Government may…”
The expression “appropriate Government” means the Government which is legally competent to exercise the power of commutation in a particular case. Section 5 itself explains whether the Central Government or the concerned State Government will be treated as the appropriate Government.
The word “may” indicates that the Government has a legal power to commute a sentence; it does not mean that every sentence must automatically be commuted. The power has to be exercised according to the law and the conditions prescribed under the BNSS.
“…without the consent of the offender…”
This means that the Government does not need to obtain the permission or approval of the convicted person before commuting the sentence.
The power of commutation is therefore a statutory power of the appropriate Government. The offender cannot insist that his or her consent must first be obtained before the Government can exercise this power.
In simple terms, the offender’s agreement is not a legal requirement for commutation.
“…commute any punishment under this Sanhita…”
The word “commute” means to substitute one form of punishment with another legally permissible form of punishment.
The conviction itself is not erased by commutation. The offender remains convicted of the offence, but the punishment imposed upon the offender is changed.
For example, if a death sentence is lawfully commuted to imprisonment for life, the conviction continues to remain in force. Only the punishment is changed from death to imprisonment for life.
The expression “any punishment under this Sanhita” means that the power is concerned with punishments imposed under the Bharatiya Nyaya Sanhita and their lawful substitution in accordance with the applicable provisions.
“…to any other punishment…”
This means that the original punishment may be replaced by another punishment recognized by law.
The word “other” is important because commutation involves a change in the nature of the punishment. It is not merely a reduction in the period of the same sentence.
For example, where legally permissible, a death sentence may be changed into imprisonment for life. Similarly, the law may permit another form of punishment to be substituted for the punishment originally imposed.
The exact nature and extent of the commutation must, however, comply with the statutory framework governing the exercise of this power.
“…in accordance with section 474 of the Bharatiya Nagarik Suraksha Sanhita, 2023.”
This part is important because Section 5 BNS does not give the Government an unrestricted power to commute sentences.
The power has to be exercised according to Section 474 of the BNSS. Therefore, while Section 5 BNS recognizes the power of commutation, Section 474 BNSS provides the relevant legal framework governing how that power is to be exercised.
An advocate or aspirant should therefore read Section 5 BNS together with Section 474 BNSS rather than treating Section 5 as a completely independent provision.
Explanation to Section 5
The Explanation begins by stating:
“For the purposes of this section…”
This means that the definition which follows is specifically intended to determine the meaning of the expression “appropriate Government” as it is used in Section 5.
It is therefore not merely a general explanation of Government. It tells us which Government has the authority to deal with commutation in the circumstances mentioned in Section 5.
“…the expression ‘appropriate Government’ means…”
This portion introduces a statutory clarification. The BNS itself identifies which Government will be considered competent for the purpose of commutation.
The question is therefore not simply whether the case is a Central or State subject in an ordinary sense. The court or authority must examine the conditions mentioned in clauses (a) and (b) of the Explanation.
Clause (a)
“in cases where the sentence is a sentence of death…”
This part deals specifically with cases in which the punishment imposed upon the offender is death.
According to clause (a), where the sentence is a sentence of death, the Central Government is identified as the appropriate Government under this provision.
Therefore, the Bare Act specifically places death sentences within clause (a).
“…or is for an offence against any law…”
The word “or” expands the situations covered by clause (a). It means that the Central Government is not mentioned only in relation to death sentences.
The clause also covers sentences imposed for offences committed under a law relating to a matter over which the executive power of the Union extends.
Thus, the nature of the law and the subject matter of the offence become relevant.
“…relating to a matter to which the executive power of the Union extends…”
This is an important constitutional expression.
It means that if the offence concerns a subject or matter over which the executive authority of the Union Government extends, the Central Government will be treated as the appropriate Government for the purpose of Section 5.
In other words, the provision looks at the division of executive authority between the Union and the States.
“…the Central Government;”
The conclusion of clause (a) is therefore that, in the circumstances specified in that clause, the Central Government is the authority recognized as the appropriate Government for the purpose of commutation.
So, clause (a) can be understood as covering death sentences and offences relating to matters falling within the Union’s executive sphere.
Clause (b)
“in cases where the sentence…”
Clause (b) begins by dealing with another category of cases in which a sentence has been imposed upon an offender.
Unlike clause (a), this clause focuses on offences relating to matters within the executive authority of the State.
“…(whether of death or not)…”
This expression is particularly important.
It means that the State Government’s authority under clause (b) is not restricted only to ordinary sentences. A sentence may even be a death sentence.
Therefore, it would be incorrect to understand Section 5 as saying that every death sentence can only be dealt with by the Central Government.
Clause (b) expressly uses the words “whether of death or not”, showing that a death sentence can also fall within the State Government’s authority where the other requirement of clause (b) is satisfied.
“…is for an offence against any law…”
Here, the relevant question is the law under which the offender has been convicted.
The court must identify the law creating or governing the offence and then determine whether the subject matter of that law falls within the executive authority of the State.
“…relating to a matter to which the executive power of the State extends…”
This is the crucial condition in clause (b).
If the offence concerns a matter over which the executive power of the State Government extends, the State Government becomes the appropriate Government for the purpose of Section 5.
Therefore, the determining factor is the executive competence of the State over the relevant subject matter.
“…the Government of the State within which the offender is sentenced.”
This final part identifies which State Government is competent.
It is the Government of the State where the offender was sentenced.
Therefore, once the offence falls within a matter covered by the State’s executive power, the relevant State Government is the Government of the State in which the offender received the sentence.
The Most Important Point in Section 5
The easiest way to understand the entire Explanation is to focus on executive power.
Where clause (a) applies, the Central Government is the appropriate Government.
Where clause (b) applies, the State Government is the appropriate Government.
Most importantly, a death sentence does not automatically mean that only the Central Government can commute it. Clause (b) expressly says “whether of death or not”, meaning that the State Government may also be the appropriate Government in a death-sentence case where the offence relates to a matter within the State’s executive power.
Therefore, for examination purposes, remember:
Death sentence + Union executive matter → Central Government
State executive matter, whether sentence is death or not → concerned State Government
The actual exercise of the power must still comply with Section 474 BNSS.
Simple Legal Meaning of the Entire Section
Section 5 BNS essentially means that the legally competent Government can change a punishment imposed under the BNS into another legally permissible punishment without obtaining the offender’s consent. However, the Government must exercise this power within the legal framework prescribed by Section 474 BNSS.
The Explanation then answers the most important question: which Government is competent to exercise this power? The answer depends upon the nature of the sentence and, importantly, whether the offence relates to a matter falling within the executive authority of the Union or the State.
This is why, while studying Section 5, Section 474 BNSS and the constitutional division of executive powers between the Union and the States are also important.
Yes. Here is a completely reworded, plagiarism-free version of the Ashok Kumar v. Union of India notes, written specifically for your Section 5 BNS article and in simple legal English.
Ashok Kumar v. Union of India, AIR 1991 SC 1792
Year and Citation
The Supreme Court decided Ashok Kumar v. Union of India in 1991. The judgment is reported in AIR 1991 SC 1792 and (1991) 3 SCC 498. The case is important for understanding the legal meaning of imprisonment for life and the distinction between life imprisonment, remission and commutation.
Background of the Case
The case concerned the legal position of prisoners who had been sentenced to imprisonment for life. An important question before the Supreme Court was whether a person sentenced to life imprisonment could claim release merely because he had completed 14 years of imprisonment.
The Court therefore had to examine the legal nature of a life sentence and the extent to which the Government could exercise powers relating to remission, suspension and commutation of sentences.
Main Legal Issue
The principal question was whether 14 years of imprisonment automatically brings a sentence of life imprisonment to an end.
The Court also considered the legal relationship between a sentence imposed by the court and the powers available to the executive Government to modify the operation of that sentence.
Supreme Court’s Judgment
The Supreme Court clarified that imprisonment for life is not automatically limited to 14 years.
A sentence of life imprisonment ordinarily means imprisonment for the remainder of the convict’s natural life. Therefore, a person sentenced to life imprisonment cannot claim, merely on completion of 14 years in prison, that he has acquired an automatic right to release.
The completion of 14 years does not itself terminate the life sentence. Release before the completion of the convict’s natural life can take place only when a competent authority lawfully exercises the relevant power of remission, commutation, suspension or premature release.
Supreme Court’s View on Life Imprisonment
The Court’s approach makes an important distinction between life imprisonment and a fixed-term sentence.
When a court imposes a fixed-term sentence, the punishment is connected with a specified period. Life imprisonment, however, is fundamentally different because it extends to the convict’s life unless the sentence is lawfully modified or the convict is released under an applicable legal power.
Therefore, the commonly stated idea that “life imprisonment means 14 years” is legally incorrect.
The period of 14 years should not be treated as the automatic duration of a life sentence.
Why Is 14 Years Important?
The reference to 14 years arises from the statutory provisions governing remission and commutation in certain circumstances. It does not mean that every life convict must be released after completing 14 years.
In other words, completing 14 years may become relevant when the competent Government considers the possibility of remission or premature release under the applicable law, but it does not by itself create an unconditional right to release.
Thus, there is a major difference between becoming eligible for consideration and having an automatic right to release.
Remission and Commutation
The case is also useful for understanding the difference between remission and commutation.
Commutation involves replacing one form of punishment with another legally permissible punishment. For example, where permitted by law, a death sentence may be changed into imprisonment for life.
Remission, on the other hand, generally operates by reducing the period of imprisonment that the convict is required to undergo, without treating the original conviction as cancelled.
Therefore, a person serving a life sentence does not become entitled to release merely because a particular number of years has passed. The competent authority must exercise the relevant statutory or constitutional power according to law.
Relation Between the Case and Section 5 BNS
This case is directly useful for explaining an important aspect of Section 5 of the Bharatiya Nyaya Sanhita, 2023.
Section 5 empowers the appropriate Government to commute a punishment under the BNS into another punishment, without requiring the offender’s consent, subject to the legal framework provided by Section 474 of the BNSS.
Suppose, for example, that a death sentence is lawfully commuted to imprisonment for life. After the commutation, the offender is serving a life sentence.
The principle explained in Ashok Kumar becomes relevant at this stage. The offender cannot argue that because the sentence has been converted into life imprisonment, he must automatically be released after 14 years.
The life sentence continues to have the legal character of imprisonment for life unless it is subsequently affected by a lawful power of remission, commutation, suspension or premature release.
Section 5 BNS Does Not Mean Automatic Release After 14 Years
This is the most important point for your Section 5 notes.
Commutation and release are two different legal concepts.
When the Government commutes one punishment into another, it changes the nature of the punishment according to law. It does not automatically create a right to release after a particular number of years.
Therefore, if death is commuted to life imprisonment, the result is life imprisonment, not an automatic 14-year sentence.
Any subsequent release must have a separate legal basis under the applicable provisions governing remission, commutation, suspension or premature release.
Importance of the Case for Advocates and Aspirants
The case is particularly useful because it removes a common misconception regarding life imprisonment.
Aspirants often remember the formula:
Life imprisonment = 14 years
This is not the correct legal position.
The better way to understand it is:
Life imprisonment ordinarily extends to the remainder of the convict’s natural life, subject to lawful remission, commutation, suspension or premature release.
The case also helps distinguish the sentence imposed by the court from the executive powers that may subsequently affect the operation of that sentence.
Connection with Section 5 BNS and Section 474 BNSS
Section 5 BNS provides the substantive recognition of the Government’s power to commute a punishment, whereas Section 474 BNSS provides the statutory framework for exercising the commutation power.
Therefore, when studying Section 5, three concepts should be kept separate:
First, sentencing: The court imposes the punishment after conviction.
Second, commutation: The competent Government may, subject to law, substitute one form of punishment with another.
Third, remission or premature release: A competent authority may, where legally permissible, affect the period for which the offender remains in custody.
Keeping these concepts separate makes the legal position much easier to understand.
Conclusion
Ashok Kumar v. Union of India, AIR 1991 SC 1792, is important for understanding the true meaning of imprisonment for life. The Supreme Court clarified that life imprisonment does not automatically come to an end after 14 years. A life convict cannot claim release merely because he has completed that period in custody.
The judgment is relevant to Section 5 BNS because commutation may change a sentence, but it does not automatically determine when the offender will be released. If a sentence is converted into life imprisonment, it remains a life sentence unless it is subsequently affected by a valid statutory or constitutional power.
Key takeaway: Commutation changes the punishment; it does not automatically create a right to release after 14 years. Life imprisonment ordinarily extends to the remainder of the convict’s natural life, subject to lawful release mechanisms.
Certainly. For Section 5 BNS, the distinction between the Central Government and State Government is important because the Explanation to Section 5 determines the “appropriate Government” based mainly on the nature of the sentence and the subject matter of the law.
Powers of Central and State Government under Section 5 BNS
| Basis of Difference | Central Government | State Government |
|---|---|---|
| Relevant provision | Section 5, Explanation clause (a) | Section 5, Explanation clause (b) |
| When does it become the appropriate Government? | The Central Government is the appropriate Government where the sentence is a sentence of death, or where the sentence is for an offence against a law relating to a matter to which the executive power of the Union extends. | The State Government is the appropriate Government where the sentence, whether death or otherwise, is for an offence against a law relating to a matter to which the executive power of the State extends. |
| Death sentence | Section 5 clause (a) expressly includes cases where the sentence is death. | Clause (b) also permits State Government authority in a death-sentence case where the offence relates to a matter within the State’s executive power. The words “whether of death or not” are important here. |
| Other sentences | The Central Government can be the appropriate Government where the offence concerns a matter falling within the Union’s executive power. | The State Government can be the appropriate Government where the offence concerns a matter falling within the State’s executive power. |
| Main determining factor | The matter must fall within the executive power of the Union, or the case must fall within the death-sentence category mentioned in clause (a). | The matter must fall within the executive power of the State. |
| Connection with the offence | The offence must be against a law relating to a matter within the Union’s executive sphere. | The offence must be against a law relating to a matter within the State’s executive sphere. |
| Which State is concerned? | Not applicable under clause (a). | The Government of the State within which the offender is sentenced is treated as the appropriate Government. |
| Can it commute a punishment? | Yes, where the Central Government is the appropriate Government under Section 5. | Yes, where the State Government is the appropriate Government under Section 5. |
| Need offender’s consent? | No. Section 5 expressly provides that commutation may take place without the consent of the offender. | No. The same rule applies to the State Government when it is the appropriate Government. |
| Purpose of the power | To substitute the punishment imposed under the BNS with another legally permissible punishment in accordance with the applicable law. | To substitute the punishment imposed under the BNS with another legally permissible punishment in accordance with the applicable law. |
| Procedure/framework | The power must be exercised in accordance with Section 474 BNSS. | The power must also be exercised in accordance with Section 474 BNSS. |
| Does commutation cancel the conviction? | No. Commutation changes the punishment; it does not itself erase the conviction. | No. The same principle applies to State Government commutation. |
Easy way to remember
| Situation | Appropriate Government under Section 5 |
|---|---|
| Sentence is death | Central Government under clause (a) |
| Offence relates to a matter within Union executive power | Central Government |
| Offence relates to a matter within State executive power | Concerned State Government |
| State executive matter + death sentence | State Government may be appropriate under clause (b) |
| State executive matter + sentence other than death | State Government |
One Important Caution
The phrase “death sentence = Central Government” is useful as a starting point for reading clause (a), but it should not be treated as an absolute rule. Clause (b)’s words “whether of death or not” expressly show that a State Government can also be the appropriate Government in a death-sentence case where the offence relates to a matter within the State’s executive power.
Also, Section 5 BNS itself directs that the power of commutation must be exercised in accordance with Section 474 BNSS. So, for a complete legal analysis, Section 5 BNS should always be read together with Section 474 BNSS.
Frequently Asked Questions on Section 5 BNS – Commutation of Sentence
1. What is commutation of sentence under Section 5 of the BNS?
Commutation means changing one form of punishment into another legally permissible form of punishment. Section 5 allows the appropriate Government to commute a punishment imposed under the Bharatiya Nyaya Sanhita without obtaining the offender’s consent. The conviction itself is not cancelled; only the nature of the punishment is changed in accordance with law.
2. Can a sentence be commuted without the offender’s consent?
Yes. Section 5 expressly provides that the appropriate Government may commute a punishment without the consent of the offender. Therefore, the offender’s approval is not a prerequisite for the lawful exercise of the Government’s power of commutation.
3. Does the Central Government or State Government have the power to commute a sentence?
The power may belong to either the Central Government or the State Government, depending upon the circumstances specified in the Explanation to Section 5. The Central Government is the appropriate Government in cases covered by clause (a), including death sentences and offences relating to matters within the Union’s executive power. The State Government is the appropriate Government where the offence relates to a matter within the State’s executive power, including a death sentence where the requirements of clause (b) are satisfied.
4. Does life imprisonment mean that the prisoner will be released after 14 years?
No. A sentence of life imprisonment does not automatically come to an end after 14 years. Life imprisonment ordinarily extends to the remainder of the convict’s natural life, subject to any lawful remission, commutation, suspension or premature-release mechanism. Completion of 14 years by itself does not create an automatic right to release.
5. What is the relationship between Section 5 BNS and Section 474 BNSS?
Section 5 BNS recognizes the power of the appropriate Government to commute a punishment, but it specifically requires that the power be exercised in accordance with Section 474 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Therefore, Section 5 should be read together with Section 474 BNSS to understand the legal conditions and framework governing commutation.
