MERCY PETITION
1. Context
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).
2. Mercy Petition
- Mercy petitions are formal requests made by individuals who have been convicted of a crime and sentenced to death, asking for clemency or leniency from the highest executive authority in a country.
- These petitions are typically addressed to the head of state or the highest-ranking executive official, such as the President or the Governor, depending on the country's legal system.
- 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.
3. New Provision Under BNSS (Bharatiya Nagarik Suraksha Sanhita):
Mercy Petitions in Death Sentence Cases:
- The proposed BNSS includes a provision regarding mercy petitions but doesn't require the President to act in line with the advice of the council of ministers in death sentence cases.
Filing Mercy Petitions:
- Section 473(1) allows convicts under a death sentence or their legal heirs to file a mercy petition.
- The petition can be submitted to the President of India (Article 72) or the Governor of the State (Article 161) within 30 days after specific events related to the appeal process.
Rejection and Forwarding to President:
- If the Governor rejects the petition, it must be forwarded to the President within 60 days from the rejection date.
- In cases with multiple convicts, all must file mercy petitions within 60 days; otherwise, the Superintendent will send their details to the Central or State Government.
Central Government's Role:
- Upon receiving the mercy petitions, the Central Government seeks the state government's input and reviews the case records.
- It makes recommendations to the President within 60 days after receiving the state government's comments and case records.
President's Decision:
- The President may decide on the plea, especially in cases with multiple convicts, in the interests of justice.
- The President's decision is communicated to the Centre, which then informs the state government's Home Department and the Jail Superintendent within 48 hours.
Finality of President's Decision:
- Section 473(7) specifies that there shall be no appeal against the President's order made under Article 72 of the Constitution.
- The President's decision is deemed final, and no court can inquire into the grounds for pardoning or commuting death sentences.
4. Contravention of Legal Precedent:
Judicial Review Undermined:
- Existing legal precedent, established in the case of Epuru Sudhakar & Another vs Andhra Pradesh and Others (2006), allows for judicial review of the President's or Governor's decisions under Articles 72 and 161.
- These decisions could be challenged on grounds such as lack of application of mind, malice, extraneous considerations, omission of relevant materials, or arbitrariness.
President's Decision Made Final:
- Section 437(7) of the proposed BNSS explicitly states that the President's decision on mercy petitions shall be final and not subject to court inquiry.
- This contravenes the established legal principle of judicial review.
Protection of Prisoner's Rights:
- In the 2014 case of Shatrughan Chauhan and Anr vs. Union of India, the Supreme Court emphasized the inherent rights of prisoners, including those on death row.
- The Court laid down guidelines, including providing a minimum period of 14 days between the rejection of a mercy petition and the scheduled execution, to allow prisoners to prepare mentally and address personal affairs.
No Time Limit for President's Decision:
- The BNSS lacks a specified time limit for the President to decide on mercy pleas, unlike the requirement set by the Supreme Court to prevent undue delays.
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For Prelims: Mercy Petition, Bharatiya Nagarik Suraksha Sanhita (BNSS), Criminal Procedure Code (CrPC), Shatrughan Chauhan vs Union of India (2014), Article 72, Article 161, Article, Section 437(7) of the proposed BNSS, and Judicial Review.
For Mains: 1. Discuss the significance of mercy petitions in the context of the death penalty. Analyze the role of mercy petitions in providing a safeguard against wrongful executions and ensuring fairness in the criminal justice system. (250 words).
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Previous year Questions1. Which one of the following statements relating to the power of the president of India to grant pardon is not correct? (UPSC CAPF 2018)
A. The president has the power to grant pardon where punishment or sentence is by a Court Martial.
B. The president can grant pardon in all cases where the sentence is a sentence of death.
C. The Court's power of judicial review is very limited in relation to the decision of the President on the mercy petition.
D. The power to grant a pardon by the President is the power that the sovereign never exercises against its own judicial mandate.
Answer: D
2. Consider the following statements : (MPSC 2013 Prelims)
(a) Nalinis death penalty for Rajiv Gandhi’s assassination was commuted to life imprisonment on the basis of a recommendation of the state cabinet and an appeal by Congress Chief Sonia Gandhi.
(b) Justice K.T. Thomas who headed the Supreme Court bench that confirmed the death rap now feels that it would be incorrect to hang the remaining three sentenced to death for Rajiv Gandhi’s assassination as the antecedents, nature, and character of the accused were not considered before.
A. Both (a) and (b) are correct
B. Neither (a) nor (b) is correct
C. (a) is correct (b) is not
D. (b) is correct (a) is not
Answer: A
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Source: The Indian Express
