Is Mercy Petition Under BNSS More Practical?

1.      Introduction

The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 marks a significant shift in India’s criminal justice system. It introduces new provisions for mercy petitions in death sentence cases. This blog examines the BNSS’s changes to mercy petition procedures. It explores how these modifications redefine established processes and their broader implications. Key changes include new time limits for submitting mercy petition under BNSS. The procedural sequence now involves both the Governor and the President. Special considerations are introduced for cases with multiple convicts. These changes aim to streamline and clarify the mercy petition process. The blog will analyze how these provisions impact the criminal justice landscape. It will assess their potential to ensure fairness and efficiency in handling mercy petitions.

Comparison with Judicial Precedents

In comparing these new provisions with existing judicial precedents, such as the landmark Shatrughan Chauhan v. Union of India case, we will highlight significant departures from previous practices. The blog will scrutinize the restrictions on who can file mercy petitions, the limitations on the number of petitions, and the exclusion of judicial review of the President’s decisions. By addressing these aspects, we aim to assess how the BNSS might impact the fairness and effectiveness of the mercy petition process.

Additionally, the blog will delve into the practical implications of these reforms on convicts seeking clemency. We will consider how the BNSS’s procedural requirements might challenge the ability of death row inmates to exercise their rights effectively and ensure that justice is served. This introduction sets the stage for a thorough analysis of the BNSS’s impact on justice and individual rights, balancing procedural efficiency with the need for compassionate and equitable treatment.

2.     Background on Mercy Petitions

Mercy petitions serve as a crucial safeguard within the criminal justice system, providing a final opportunity for convicts, especially those facing death sentences, to seek clemency. The Indian Constitution empowers the President of India under Article 72[i] and governors under Article 161 [ii] to grant pardons, reprieves, respites, or commutations of sentences. These powers are intended to act as a check on the judicial system, allowing for the reconsideration of cases where strict application of the law might result in an unjust outcome.

The Supreme Court’s ruling in Maru Ram v. Union of India [iii] reinforced that the President’s decision on mercy petitions must be based on the advice of the Council of Ministers, ensuring that these decisions are informed by a broader perspective than merely the judicial record. This constitutional safeguard acknowledges the potential for judicial errors and the need for flexibility in addressing exceptional circumstances.

3.     Overview of Section 473 in BNSS

The BNSS introduces Section 473, which significantly alters the traditional process of filing and reviewing mercy petitions. Key provisions of Section 473 include:

A.    Time Limits for Filing Petitions

• Section 473(1) stipulates that convicts must file their mercy petitions within 30 days of receiving notification of either:

The dismissal of their appeal, review, or special leave to appeal by the Supreme Court, or

The confirmation of their death sentence by the High Court, with the time for filing further appeals or special leave having expired.

This rigid 30-day deadline represents a significant shift from current practices. Traditionally, there is no fixed timeline for filing mercy petitions, allowing convicts and their representatives to prepare petitions with due diligence. The BNSS’s imposition of a 30-day limit could potentially compromise the quality and comprehensiveness of the petitions, as it may not provide adequate time for gathering all relevant information, legal advice, and documentation.[iv]

B.     Filing Petitions with the Governor and President

Under the BNSS, convicts are required to file mercy petitions first with the Governor and, upon rejection, with the President. This sequential process is designed to ensure that petitions are reviewed at multiple levels of authority. However, the BNSS does not specify the time frame within which the President must decide on a petition, nor does it mandate a cooling-off period between the rejection of a mercy petition and the execution of the death sentence.[v]

C.     Multiple Convicts

For cases involving multiple convicts, Section 473(3) mandates that all convicts must file their mercy petitions within 60 days. This collective approach to filing petitions is intended to streamline the process but may overlook individual circumstances. Each convict’s petition should ideally reflect their unique situation, including personal, socio-economic, and health-related factors. The BNSS’s one-size-fits-all approach could undermine the individualized consideration essential for justice.

D.    Central Government’s Role

The Central Government plays a pivotal role in the BNSS’s mercy petition process. Upon receiving a petition, it must seek comments from the state government and make recommendations to the president within 60 days. This requirement ensures that the President’s decision is informed by a comprehensive review of the case. Additionally, the central government must communicate the president’s decision within 48 hours to the state government and the jail authorities, ensuring prompt implementation of the decision. [vi]

4.     Restriction on Petition Filers

Section 473(1) restricts the right to file mercy petitions to the convict, their legal heir, or a relative. This restriction contrasts sharply with the current practice, where third parties such as NGOs or legal organizations often file petitions on behalf of convicts. This limitation poses several challenges:

• Loss of Contact: Many death row convicts may lose contact with their families, particularly those from impoverished backgrounds or with mental health issues. The inability of third parties to file petitions on their behalf could severely restrict their access to mercy petitions.
• Lack of Legal Awareness: Convicts, especially those with limited education or mental health issues, may not have the capability to understand and file a mercy petition effectively. By excluding third parties, the BNSS fails to accommodate these practical challenges.[vii]

5.     Limitation on the Number of Petitions

The BNSS implies a restriction on the number of mercy petitions that can be filed. Under Section 473(1), convicts can file only one petition before the Governor and one before the President. This limitation could be problematic:

• Evolving Grounds: Convicts may develop new grounds for mercy after the initial petition, such as deteriorating health or new evidence. The ability to file multiple petitions allows for the presentation of these new circumstances.
• Rushed Petitions: The imposition of a single petition limit, combined with the 30-day filing period, may result in hurried petitions that do not fully capture all relevant details and arguments.[viii]

6.     Introduction of Timelines

The BNSS introduces several strict timelines:

• Thirty-Day Deadline

The 30-day deadline for filing mercy petitions, as stipulated in Section 473(1), may not provide adequate time for preparing a comprehensive petition. Convicts may need time to:

- Gather and review case records.

- Obtain medical and psychological evaluations.

- Seek legal representation and advice.

Given the emotional distress and logistical challenges faced by death row convicts, this timeline could undermine their ability to present a thorough and effective plea for mercy.

• Sixty-Day Deadline for Presidential Petition

Section 473(2) provides a 60-day period for filing a petition with the President after a petition is rejected by the Governor. This provision is somewhat ambiguous.

• Communication of Rejections:

The BNSS does not clearly mandate the prompt communication of rejection decisions by the Governor, potentially leaving convicts with insufficient time to prepare their subsequent petition.

• Timing Confusion:

The discrepancy between the 30-day and 60-day deadlines could create confusion and affect the ability of convicts to comply with the filing requirements effectively.

• Impact on Other Judicial Remedies

The BNSS’s strict deadlines may force convicts to file mercy petitions before exhausting other available judicial remedies. Review and Curative Petitions: Currently, convicts have the right to file review petitions and curative petitions after their appeal is dismissed. The BNSS’s overlapping timelines for filing mercy petitions and these judicial remedies could adversely affect a convict’s ability to pursue all available legal avenues.[ix]

7.     Impact on Cases Involving Multiple Accused

Section 473(3) requires that all co-accused in a case file their mercy petitions simultaneously. This provision raises several concerns:

• Individual Grounds: Each convict may have unique grounds for seeking mercy, which should be considered individually. The BNSS’s collective approach might lead to a superficial consideration of individual pleas.
• Submission of Information: The Superintendent of the Jail is required to provide only basic details about co-accused, potentially omitting critical personal information relevant to their individual cases.[x]

8.     Restriction of Judicial Review

Section 473(7) [xi] states that the President’s decisions on mercy petitions are final and cannot be reviewed by courts. This provision is consistent with the traditional view that mercy powers are beyond judicial scrutiny. However, this broad finality clause may:

• Conflict with Existing Jurisprudence: The Supreme Court has recognized limited grounds for judicial review of mercy decisions, particularly concerning procedural fairness and the consideration of relevant factors. The BNSS’s restriction could conflict with these established principles.
• Fundamental Rights: The Supreme Court has held that judicial review is permissible if the decision is arbitrary, made without due consideration, or violates fundamental rights. The BNSS’s finality clause might overly restrict this essential safeguard.[xii]

9.     Conclusion

The BNSS 2023 represents a significant shift in the handling of mercy petitions, with its emphasis on procedural efficiency and strict timelines. While the intention behind these reforms may be to streamline the process, the practical implications raise serious concerns about justice and fairness.

Challenges and Considerations in the BNSS Mercy Petition Framework

The restriction on who can file mercy petitions, the limitation on the number of petitions, and the introduction of rigid timelines could undermine the ability of convicts to effectively seek clemency. Additionally, the impact on cases with multiple accused and the restriction of judicial review could compromise the individualized consideration of each convict’s plea.

As India moves towards implementing the BNSS, it is crucial to strike a balance between procedural efficiency and the fundamental rights of convicts. Ensuring that mercy petitions are handled with the necessary depth and sensitivity is essential for upholding the constitutional principles of justice and human rights. The role of the judiciary in reviewing mercy decisions, even within limited parameters, remains a vital safeguard against potential miscarriages of justice.

[i] INDIAN CONSTI art 72.

[ii] INDIAN CONSTI art 161.

[iii] Maru Ram v. Union of India

[iv] Khadija Khan, Mercy petitions: How changes proposed in the BNSS ignore legal precedents, Indian Express (Sept. 01, 2023), https://indianexpress.com/article/explained/explained-law/changes-bnss-mercy-petitions-8919188/.

[v] New Bill Has Controversial Provision: President’s Call on Mercy Plea Final, Cannot Appeal, The Wire (Sept. 01, 2023) https://m.thewire.in/article/rights/new-bill-proposes-to-make-presidents-call-on-mercy-plea-final-to-reduce-judicial-delays/amp.

[vi] Criminal Law Bills 2023 Decoded #20: Mercy Petitions, The P39A Criminal Law Blog (Nov. 15, 2023) https://p39ablog.com/2023/11/criminal-law-bills-2023-decoded-20-mercy-petitions/.

[vii] Khan, supra note 4.

[viii] Supra note 6.

[ix] Under new bill, death row convict can't appeal against president's decision on mercy  The Economic Times (Aug. 31, 2023) https://economictimes.indiatimes.com/news/india/under-new-bill-death-row-convict-cant-appeal-against-presidents-decision-on-mercy-plea/articleshow/103253875.cms?from=mdr.

[x] Id.

[xi] Bharatiya Nagarik Suraksha Sanhita, 2023, § 473.

[xii] Bharti Jain, President's call on mercy pleas final, no appeal, proposes BNSS Bill, Times of India (Aug. 31, 2024) https://timesofindia.indiatimes.com/india/presidents-call-on-mercy-pleas-final-no-appeal-proposes-bnss-bill/articleshow/103222000.cms.