Mercy Petition in Death Sentence Cases Section 472

Section 472, BNSS 2023 — the substance

(1) A convict under a sentence of death, or his legal heir or any other relative, may, if he has not already submitted one, within thirty days from the date of receipt of information that the appeal or special leave petition has been dismissed by the Supreme Court, or that the sentence has been confirmed and the appeal disposed of, submit a mercy petition before the Governor of the State under Article 161.

(2) Where the petition is rejected by the Governor, the convict may, within sixty days of that rejection, submit a mercy petition to the President under Article 72.

(3) The Superintendent of the jail shall ensure that every convict, where he has no legal heir, is informed so that he may submit a petition within the period the section allows.

(4) On receipt of a mercy petition, the Central Government shall call for the records of the case and the comments of the State Government and consider it along with them.

(5) After the petition is disposed of, the decision shall be communicated within forty-eight hours to the Home Department of the State Government and to the Superintendent of the jail.

(6) Where there are more convicts than one in a case, the petitions shall be disposed of together.

⚠ What section 472 does, and what it cannot do

It prescribes procedure, not substance. The power to grant or refuse mercy is constitutional, and an ordinary statute can neither confer it nor take it away, nor tell the President or the Governor on what grounds it should be exercised.

What it supplies is a timetable and a set of duties — the thirty days, the sixty days, the jail’s duty to inform, the records and comments, and the forty-eight hour communication.

The section also provides that no appeal shall lie in any Court against the order of the President or the Governor, and that it shall be final. That must be read with the settled position that the merits are not examined but the exercise of the power remains subject to limited judicial review.

And the periods are directory in effect. Nothing in the section says what happens if a petition is filed late or decided late. Their value is that they give a court and a convict something to measure against, where previously there was nothing.

📖 Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India, (2014) 9 SCC 737

Facts: The Court was required to decide whether a review petition in a case in which the death sentence had been awarded should be heard in open court, the practice having been to decide review petitions by circulation in chambers without oral hearing.

Held: The Supreme Court held that in cases where the death sentence has been awarded, a review petition shall be heard in open court by a Bench of three Judges, and that the petitioner shall be afforded a limited oral hearing. The Court reasoned that the irreversibility of the death penalty places such cases in a class apart: where an error cannot be corrected after execution, the procedure by which the last judicial opportunity is exercised must itself be as careful as the consequence is grave. It held that deciding such a review by circulation, without hearing, does not sufficiently answer the requirement of a fair procedure under Article 21 in a case of that kind, and directed that the new procedure apply to pending matters and, on application, to cases in which review petitions had already been dismissed by circulation and the sentence not yet executed.

Ratio: In death sentence cases a review petition must be heard in open court by three Judges with a limited oral hearing. The irreversibility of the penalty requires a procedure as careful as the consequence is grave.

📖 Navneet Kaur v. State (NCT of Delhi), (2014) 7 SCC 264

Facts: A curative petition was filed on behalf of a convict whose death sentence had been confirmed, the mercy petition having remained undecided for a period of years, and it was contended that the delay, together with his condition during that period, entitled him to commutation.

Held: The Supreme Court held that undue, unexplained and inordinate delay in the disposal of a mercy petition is a supervening circumstance which the Court may examine, and which entitles the convict to have the death sentence commuted to imprisonment for life. The Court held that the nature of the offence is not relevant at that stage: once the sentence has been confirmed, the gravity of the crime has already been taken into account by the courts, and what the Court is examining is what has happened since. It held that the convict’s suffering during the period of delay — the agony of waiting, and any deterioration of health or mental condition — is the very matter that makes the delay unconscionable, and that Article 21 continues to operate in favour of a condemned prisoner until his last breath. Applying that, it commuted the sentence.

Ratio: Undue, unexplained and inordinate delay in disposing of a mercy petition is a supervening circumstance entitling the convict to commutation. The nature of the offence is not relevant at that stage, the gravity having already been taken into account.

⚠ The safeguards after a rejection

The Supreme Court has laid down that, after a mercy petition is rejected, the rejection must be communicated in writing to the convict and his family; that a minimum of fourteen days must elapse between that communication and the execution; that the convict be given legal aid and a final meeting with his family; that regular mental health evaluations be provided; and that a post-mortem be conducted.

The fourteen-day interval exists so that the convict may exhaust any remaining legal remedy, settle his affairs, and meet his family — and so that the last stage is not conducted in haste or in secrecy.

Section 472(5) works with those safeguards. The requirement that the decision be communicated to the Superintendent of the jail within forty-eight hours ensures that the convict learns of the rejection promptly, so that the fourteen days begin to run without further delay.

The position stated shortly

1. Section 472 is entirely new. The Code of Criminal Procedure prescribed no timetable at all for a mercy petition.

2. The convict, or his legal heir or any other relative, may petition the Governor under Article 161 within thirty days of receiving information of the dismissal or confirmation.

3. On rejection by the Governor, a petition may be made to the President under Article 72 within sixty days.

4. The Superintendent of the jail must ensure that a convict with no legal heir is informed, so that the right is not lost through ignorance.

5. The Central Government calls for the records and the comments of the State Government and considers them with the petition.

6. The decision is communicated within forty-eight hours to the Home Department and the Superintendent of the jail.

7. Where there are several convicts in one case, the petitions are disposed of together.

8. The section prescribes procedure, not substance. It cannot confer, limit or direct the constitutional power of clemency.

9. Undue, unexplained and inordinate delay in disposing of a mercy petition is a supervening circumstance entitling the convict to commutation, and the nature of the offence is not relevant at that stage: Navneet Kaur.

10. After a rejection, the safeguards laid down by the Supreme Court apply — written communication, a minimum of fourteen days before execution, legal aid, a final family meeting and mental health evaluation; and in a death case a review petition is heard in open court by three Judges: Mohd. Arif.