Often, the court, while exercising its judicial powers, may award the death penalty to convicts accused of heinous crimes, and while exercising these powers, it may render a ruling that results in a serious breach of human rights, a miscarriage of justice, or an uncertain conviction. To curb this uncertain conviction by courts and to protect the personal liberty guaranteed under Article 21 of the convict, the concept of mercy petitions has been introduced.

A mercy petition is a basic right guaranteed to a convict to seek mercy from the president or governor of a state. In Kehar Singh v. Union of India[1], the Supreme Court held that the right to life and personal liberty granted to citizens of India under Article 21 of the Constitution of India is of paramount importance.

Presently, articles 72 and 161 of the Indian Constitution empower the president and government to "grant pardons, reprieves, respites, or remissions of punishment or suspend, remit, or commute the sentence of anyone convicted of any offense". In the landmark case Maru Ram vs. Union of India[2], the Supreme Court held that while deciding mercy petitions under Article 72, the President must act on the advice of the council of ministers.

There is no statutory procedure for submitting or deciding a mercy petition. There is little literature available in the form of guidelines released by the Ministry of Home Affairs and jail manuals of different states [3].

The government under the newly introduced BNS has added a new provision in the form of Cl.473 BNSS that outlines the process for presenting commutation requests to the Governor and President in accordance with Articles 72 and 161 of the Constitution, respectively. This blog discusses and analyses the implications of clause 473 BNSS on the procedure for deciding and submitting mercy petitions in contemporary India.

Limitations on who can file mercy petitions

Clause 473 of the BNSS has been introduced to lay down a streamlined process for the procedure of mercy petitions in India. Cl. 473(1), BNSS, states that a convict under sentence of death can only file a mercy petition through his legal heir or any other relative. At present, various social organizations and NGOs file petitions for death row convicts who are often not able to file a petition due to unawareness or separation from family. Therefore, by restricting individuals and organizations, the BNSS ignores ground reality and is thus likely to have an adverse effect on the filing of mercy petitions by convicts.

Impact on the accessibility of alternative judicial remedies

In the present jurisprudence, convicts can first file a petition for mercy before the high court on any order passed by the session's court. If the petition is dismissed by the high court, the convict can approach the Supreme Court through a special leave petition. The convict can further file a review and then a curative petition before the Supreme Court. This remedy might appear sufficient with regards to a convict; however, the newly introduced Cl 473 appears to limit this time frame or limit the options available to a convict in the form of judicial remedies for mercy petitions to the convict.

Clause 473(1) specifies that a convict needs to file a petition before the governor of a state or the president within 30 days of the dismissal of a special leave appeal by the Supreme Court. The time line for filing a curative petition before the Supreme Court is also 30 days after the dismissal of a special leave petition by the Supreme Court. The timelines in both cases will overlap, and this might impact the offenders' opportunity to successfully pursue either remedy. In fact, this right may be revoked if the mercy petition is not filed by the deadline.

Effect on cases involving multiple convicts

Clause 473(3) states that in case there are multiple convicts and one of them files a mercy petition, the superintendent of police has to ensure that the other convicts file a mercy petition within a period of 60 days, and if they fail to do so, the superintendent of the jail is required to provide their names, addresses, a copy of the case record, and "all other details of the case" to the central or state government for consideration.

This change would limit the options available to convicts and would not help convicts present their individual grounds. In Shatrugan Chahuan v Union of India[4], the court held that before awarding the death penalty, the court needed to look at the mitigating circumstances of the accused, i.e., background, circumstances in which the accused was raised, etc. Clause 473(3) specifies that all the superintendent needs to do is provide the co-accused's name, address, and case files.

This would exclude important details about their personal situation, making it impossible for their right to ask for mercy to be meaningfully realized. Furthermore, if the superintendent's sending of details is interpreted as the submission of a mercy plea, the person convicted might not be allowed to file another mercy petition before the same authority.

Restriction of judicial review

Clause 473(7) states that any orders issued by the President in accordance with Article 72 of the Constitution are final and cannot be challenged. It also states that no court shall inquire into "any question as to the arrival of the decision by the President." In Epuru Sudhakar v. Govt. of Andhra Pradesh[5], the court held that judicial review could be allowed:

1. if the order is passed without application of mind;
2. is malafide;
3. is passed on extraneous or wholly irrelevant considerations;
4. relevant materials have been kept out of consideration; or
5. the order is arbitrary.

Even though clause 473(7) restricts the power of the court to intervene, it cannot, even if it tries, restrict the courts' limited authority to conduct judicial review. Art. 32 of the Constitution, which states that the judiciary may exercise its powers in relation to the President's decision to show mercy, cannot be limited by statutory provisions.

Conclusion
In conclusion, even if Clause 473 of the BNSS seeks to expedite the mercy petition procedure, there are issues with its restrictions on filers, shortened deadlines, effects on cases involving several convicted individuals, and limitations on judicial review. The clause ignores the actual challenges that prisoners experience, which could jeopardize their ability to receive mercy.

The finality clause, the hurried timelines, and the limited opportunity for establishing specific causes all work against the complex character of mercy decisions. The judiciary's responsibility in evaluating mercy decisions and ensuring that justice, compassion, and human rights are not unnecessarily surrendered in the quest for procedural efficiency are both affirmed by constitutional safeguards, particularly Article 32.

End-Notes:

1. Kehar Singh v. Union of India, 1989 AIR 653
2. Maru Ram vs. Union of India, 1980 AIR 2147
3. Ministry of Home Affairs, Government of India, 'Guidelines for Safeguarding the Interest of the Death Row Convicts', 4 February 2014, No. VII-17013/1/2014-PR.
4. Shatrugan Chauhan v Union of India 2014 AIR SCW 793
5. Epuru Sudhakar v Govt of Andhra Pradesh AIR 2006 SC 3385