Mercy petitions: How changes proposed in the BNSS ignore legal precedents

The Bharatiya Nagarik Suraksha Sanhita introduced last month make some major changes to the provision regarding mercy petition. Som of these, however, go against what the SC has said in the past.

Some changes to mercy petitions proposed in the BNSS, however, mark a shift from the guidelines laid down by the Supreme Court in its previous rulings. (Photo: Pixabay/Representational)

Written by: Khadija Khan

8 min readNew DelhiSep 1, 2023 10:35 PM IST First published on: Sep 1, 2023 at 07:26 PM IST

The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, the proposed replacement for the Criminal Procedure Code (CrPC), contains a new provision on mercy petitions in death sentence cases, which makes changes to the fundamental nature of the provision, including core aspects of its justiciability, the time-limit within which such pleas must be decided, and the 14-day gap between the rejection of a mercy plea by the President and its date of execution, as mandated by the Supreme Court in Shatrughan Chauhan vs Union of India (2014).

Some of these changes to mercy petitions mark a shift from the guidelines laid down by the Supreme Court in its previous rulings. We explain.

What are mercy petitions?

Under Article 72 of the Constitution, “the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death”. Similarly, Article 161 confers pardoning powers on the governor, but these do not extend to death sentences.

In its 1981 ruling in Maru Ram vs. Union of India, the SC held that while deciding mercy petitions under Article 72, the President must act on the advice of the council of ministers.

Under the existing law, the President is bound by the Cabinet’s advice and can only return the plea for reconsideration once under Article 74 (1). After this, if the Council of Ministers decides against the changes suggested by the President, she has no option but to accept them.

What is the new provision under the BNSS?

The provision in the proposed BNSS, however, does not include any such requirement for the President to act in tandem with the advice given by the council of ministers in death sentence cases.

Section 473(1) of the BNSS allows a convict “under the sentence of death” or his legal heir or any relative to file a mercy petition before the President of India under Article 72 or before the Governor of the State under Article 161 of the Constitution within 30 days after the date on which the Jail Superintendent (i) “informs him about the dismissal of the appeal or special leave to appeal by the Supreme Court” or (ii) “informs him about the date of confirmation of the sentence of death by the High Court and the time allowed to file an appeal or special leave in the Supreme Court has expired.”

Following this, the mercy petition may be presented to the Centre or the state government’s Home Department, as the case may be.

While the mercy petitions under subsection (i) may initially be made to the Governor, his rejection or disposal of the petition will result in it being forwarded to the President within 60 days from such rejection or disposal of the plea.

In cases where there are multiple convicts, the jail superintendent or the officer-in-charge shall ensure that every convict makes a mercy petition within 60 days. If the Superintendent doesn’t receive the mercy petitions from all other convicts in the case, he shall himself “send the names, addresses, copy of the record of the case and all other details of the case to the Central Government or State Government for consideration along with the said mercy petition”.

On receiving the mercy petitions, the Centre will seek the state government’s comments, consider the petition along with the case records, and then “make recommendations to the President in this behalf, as expeditiously as possible”, within 60 days from the date on which it received the comments of the state government and records from the jail superintendent. While this 60-day time limit has been given to the Centre, no time limit has been prescribed for the President to dispose of the mercy petitions.

After this, the President may decide and dispose of the plea. However, in the case of multiple convicts in a case, the petitions “shall be decided by the President together in the interests of justice.” Once the President’s decision on the status of the plea is received by the Centre, it shall within 48 hours, communicate the same to the state government’s Home Department and the Superintendent of the Jail or its officer in charge.

Notably, Section 473(7) states that “No appeal shall lie in any Court against the order of the President made under article 72 of the Constitution and it shall be final, and any question as to the arriving of the decision by the President shall not be enquired into in any Court.”

In a nutshell, this provision aims to do away with appeals against the President’s decision on mercy petitions, thereby making it final. It also means that the courts will no longer be able to go into the grounds on which the President pardons or commutes death sentences.

How does this provision contravene existing legal precedent?

In October 2006, in Epuru Sudhakar & Another vs Andhra Pradesh and Others, the SC held that the powers of the President or Governor under Articles 72 and 161 are subject to judicial review. Such a decision can be challenged on grounds that (a) it was passed without application of mind; (b) it is mala fide; (c) it was passed on extraneous or wholly irrelevant considerations; (d) relevant materials were kept out of consideration; (e) it suffers from arbitrariness, the court said.

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However, the BNSS under Section 437 (7) specifically says that the President’s decision on the mercy plea “shall be final, and any question as to the arriving of the decision by the President shall not be enquired into in any Court.”

In a 2014 ruling in Shatrughan Chauhan and Anr vs Union of India, where a three-judge SC bench commuted the death sentence of 15 convicts, it was observed that “Article 21 inheres a right in every prisoner till his last breath and this Court will protect that right even if the noose is being tied on the condemned prisoner’s neck.”

Additionally, the court laid down guidelines safeguarding the interests of death row convicts. One such guideline was providing a minimum period between the rejection of the mercy petition being communicated to the prisoner and his family and the scheduled date of execution. Noting the differing periods across prison manuals in this regard, the court thought it necessary “that a minimum period of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution” to allow the prisoner to prepare himself mentally for execution and deal with his earthly affairs such as meeting his family, among other considerations. However, no such two-week period has been mentioned in the proposed BNSS.

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Finally, in Shatrughan, the bench led by former CJI P Sathasivam ruled that there was no explanation for the inordinate delay in the disposal of mercy petitions by the President.

“Accordingly, if there is undue, unexplained amd inordinate delay in execution due to pendency of mercy petitions or the executive as well as the constitutional authorities have failed to take note of/consider the relevant aspects, this Court is well within its powers under Article 32 to hear the grievance of the convict and commute the death sentence into life imprisonment on this ground alone however, only after satisfying that the delay was not caused at the instance of the accused himself,” the court ruled. However, under the BNSS, there is no time limit for the President to decide the mercy pleas.