The Mercy Petition Procedure | Section 472 BNSS

The Mercy Petition Procedure under Section 472 of the BNSS, 2023: Who Does What and When, the Duties of the Jail and the Government, and the Finality Clause

Before the Sanhita there was no statutory timetable for a mercy petition at all. It could be filed at any time, forwarded at any speed, and left undecided for years. The consequence was not merely administrative untidiness: the delay itself became a ground on which the sentence was commuted, so that the absence of a procedure defeated the very decisions it was meant to facilitate.

Section 472 supplies the timetable. It does not confer the power of clemency — no statute could, the power being constitutional — and it does not tell the President or the Governor on what grounds it should be exercised. What it prescribes is who may petition, within what time, to whom, and what the jail and the Government must then do.

1. Who Does What, and When

Figure 1: The actors and the periods

The convict, or his legal heir or any other relative, may submit a mercy petition to the Governor under Article 161 within thirty days of receiving 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 — if he has not already submitted one.
The Superintendent of the jail shall ensure that every convict, where he has no legal heir, is informed, so that a man without family does not lose the right through ignorance that it exists.
The Governor considers the petition. Where it is rejected, the convict may within sixty days of that rejection submit a mercy petition to the President under Article 72.
The Central Government, on receipt of the petition, shall call for the records of the case and the comments of the State Government, and consider the petition along with them before placing it before the President.
After disposal, the decision shall be communicated within forty-eight hours to the Home Department of the State Government and to the Superintendent of the jail — so that the convict learns of it promptly and the period before execution begins to run.
Where there are several convicts in one case, the petitions shall be disposed of together, so that co-convicts are not dealt with at different times and on different footings.

📖 Harbans Singh v. State of Uttar Pradesh, (1982) 2 SCC 101

Facts: Three persons were convicted on the same evidence for the same offence and sentenced to death. On separate proceedings reaching the Supreme Court at different times and before different Benches, the sentence of one was commuted, that of another was reduced, and the third remained under sentence of death — with no distinction in their roles to explain the difference.

Held: The Supreme Court held that where co-accused convicted on the same evidence for the same offence have been dealt with differently by reason only of the accident of separate proceedings, the result is an arbitrariness which the Court cannot allow to stand. It held that the Court possesses the power to reconsider its own order in such a situation, and that it is bound to prevent a consequence in which one man is hanged while others equally placed are not, merely because his case came before a different Bench at a different time. The Court held that the same considerations apply to the executive in the exercise of clemency: where petitions of similarly placed co-convicts are dealt with separately, the risk of inconsistent outcomes is inherent. It commuted the sentence, and recommended that the mercy petition be reconsidered so that the three should not be treated differently.

Ratio: Where co-accused convicted on the same evidence are dealt with differently by reason only of separate proceedings, the result is an arbitrariness that cannot stand. One man should not be hanged while others equally placed are not.

That is why section 472(6) requires the petitions of several convicts in one case to be disposed of together. The requirement is not administrative convenience: it is a statutory answer to the danger the Court identified — that the accident of separate consideration produces different outcomes for men whose positions are identical.

📖 Madhu Mehta v. Union of India, (1989) 4 SCC 62

Facts: A convict under sentence of death had a mercy petition pending before the President for a period of years, during which nothing was done with it, and he remained in confinement awaiting the outcome. The delay was neither explained nor attributable to him.

Held: The Supreme Court held that an inordinate and unexplained delay in the disposal of a mercy petition entitles the convict to have the sentence of death commuted to imprisonment for life. The Court held that the period during which a person awaits the decision, knowing that he may be executed at any time after it, is a period of acute mental suffering, and that a delay for which the executive offers no explanation cannot be visited upon him. It held that where the petition has remained undisposed of for a long time through no fault of the convict, the Court is entitled to examine the consequence, and that the appropriate relief is commutation rather than a direction to decide the petition, since the harm caused by the delay has already been suffered and cannot be undone. The Court commuted the sentence accordingly.

Ratio: An inordinate and unexplained delay in disposing of a mercy petition entitles the convict to commutation. The period of waiting is one of acute mental suffering, and a delay the executive cannot explain is not to be visited upon him.

⚠ What the timetable is for

The periods in section 472 do not merely regulate the convict: they discipline the machinery. The forty-eight hour communication and the duty of the jail to inform are obligations on the State, not on the man under sentence.

And the thirty and sixty day periods work in his favour as much as against him. A convict who knows when he must petition can petition in time; one who does not may find the moment has passed while he waited to be told what to do.

The requirement that petitions of several convicts be disposed of together removes the risk that the accident of separate consideration will produce different outcomes for men equally placed.

And the requirement that the Central Government call for the records and the comments of the State ensures that the decision is taken on the full material — the absence of which has been the commonest ground on which clemency orders have been set aside.

2. The Finality Clause

Figure 2: What the clause excludes, and what it cannot

Section 472 also provides that no appeal shall lie in any Court against the order of the President or the Governor made under Article 72 or 161, and that such order shall be final. The provision has to be read with some care, because it says both more and less than it appears to.

What it correctly excludes is an appeal. There is no appellate jurisdiction over a clemency decision, and no court sits in review of whether mercy ought to have been shown. That question belongs to the executive, and the merits of its judgment are not examinable.
What it cannot exclude is the limited judicial review of the exercise of a constitutional power. An ordinary statute cannot oust the scrutiny of whether a power conferred by the Constitution was exercised lawfully — on the grounds of non-application of mind, mala fides, irrelevant considerations, exclusion of relevant material, or arbitrariness.
The distinction that reconciles them is between the decision and the decision-making process. The first is for the executive and is final; the second is examinable by a court. An order showing that the authority considered the relevant material and applied its mind will stand, however generous or harsh a court may privately think it.

Read that way, the clause confirms what was already the position rather than altering it. What section 472 genuinely contributes is the procedure and the timetable — the thirty days, the sixty days, the duty of the jail, the records and comments, the forty-eight hour communication, and the joint disposal of several convicts’ petitions.

3. Key Takeaways

The position stated shortly

1. Before the Sanhita there was no statutory timetable for a mercy petition, and the resulting delay itself became a ground for commutation.

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

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 the right is not lost through ignorance.

5. The Central Government shall call for the records and the comments of the State Government and consider them with the petition.

6. The decision shall be 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 shall be disposed of together — which answers the danger that separate consideration produces different outcomes for men equally placed: Harbans Singh.

8. Inordinate and unexplained delay in disposing of a mercy petition entitles the convict to commutation, the waiting being a period of acute mental suffering: Madhu Mehta.

9. The finality clause correctly excludes an appeal; it cannot exclude the limited judicial review of the exercise of a constitutional power.

10. The distinction is between the decision, which is for the executive and is final, and the decision-making process, which is examinable by a court.

4. Frequently Asked Questions

Who may file a mercy petition, and when?

The convict under sentence of death, or his legal heir or any other relative — within thirty days of receiving information that the appeal or special leave petition has been dismissed, or that the sentence has been confirmed and the appeal disposed of.

What if the Governor rejects it?

The convict may, within sixty days of that rejection, submit a mercy petition to the President under Article 72.

What must the jail do?

The Superintendent shall ensure that every convict who has no legal heir is informed, so that he may submit a petition within the period allowed and does not lose the right through ignorance that it exists.

Why must petitions of several convicts be disposed of together?

To prevent the accident of separate consideration producing different outcomes for men equally placed. Where co-accused convicted on the same evidence are dealt with differently for that reason alone, the result is an arbitrariness that cannot stand: Harbans Singh v. State of U.P.

Can delay in deciding a mercy petition lead to commutation?

Yes. An inordinate and unexplained delay entitles the convict to have the sentence commuted to imprisonment for life, the waiting being a period of acute mental suffering which a delay the executive cannot explain should not be visited upon him: Madhu Mehta v. Union of India.

Does the finality clause bar all challenge?

It bars an appeal, and no court reviews whether mercy ought to have been shown. It cannot bar the limited judicial review of whether a constitutional power was exercised lawfully — the decision being for the executive, the decision-making process being examinable.

Related Topics

Mercy Petition in Death Sentence Cases: Section 472, BNSS
Articles 72 and 161 and Statutory Remission Compared
Commutation of a Sentence: Section 474, BNSS
Confirmation of a Death Sentence: Sections 407 to 412
Execution, Suspension, Remission and Commutation: Sections 453 to 477
The Time Limits Introduced by the BNSS, 2023