Punishment and Its Commutation in India: Executive Clemency and Structural Loopholes

Punishment is at the very core of the criminal justice system and serves simultaneously retribution, deterrence, incapacitation, and reform. The power to commute, remit, or pardon a sentence, which rests in the executive under Articles 72 and 161 of the Constitution of India and Sections 432 to 435 of the Code of Criminal Procedure , 1973 (and now Sections 473 to 476 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ) provides a parallel, yet discretionary route that can overturn the verdict of a final criminal trial. This paper is more combative than other conventional academic writing upon this subject, suggesting, based on recent evidence, that this parallel path has become a reliable avenue for escaping from deserved punishment for precisely the convicts whose crimes are the greatest and the political standing is the highest. The paper explores the types of punishment recognised under Bharatiya Nyaya Sanhita, 2023, and the constitutional and statutory framework of clemency. It relies on Supreme Court judgements such as Maru Ram v. Union of India , Epuru Sudhakar v. State of Andhra Pradesh , Laxman Naskar v. State of West Bengal , Swamy Shraddananda v. State of Karnataka and Bilkis Yakub Rasool v. Union of India (2024) , along with three recent illustrations that the existing literature does not seem to have analysed as a set: the all seven convicts of the Rajiv Gandhi assassination case were released in 2022, the former minister Amarmani Tripathi was set free in the Madhumita Shukla murder case in 2023 , and the Supreme Court itself admitted in the case In re Policy Strategy for Grant of Bail (2025) that the practice of granting remissions by the states across the country is not uniform due to the inconsistent approach. The paper contends that the five loopholes it identifies are political use of the remission policy, lack of a uniform national standard, marginalisation of victims, constant delay in death-row cases, and a failure of transparency in the death penalty process, which are not accidental flaws, but hallmarks of an unchecked discretionary power that cannot be fixed through piecemeal litigation. It ends with the reforms that are carefully stated in terms of implementation, not aspiration; some of which the Supreme Court has already sought to impose on the government by order and which it now obliges Parliament and the State legislatures to enact as binding law – not as a matter of policy preference, but as a constitutional necessity arising directly from Articles 14 and 21 .