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THE FINAL PLEA “Mercy Petition in Death Sentence Cases” (Section-472 of Bharatiya Nagarik Suraksha Sanhita, 2023)
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THE FINAL PLEA
“Mercy Petition in Death Sentence Cases”
(Section-472 of Bharatiya Nagarik Suraksha Sanhita,
2023)[1]
AUTHORED BY - SRINIBAS PRAHARAJ
1. INTRODUCTION
Mercy
petitions emerge as a last resort for individuals on death row who are facing
the ultimate penalty. The plea of mercy becomes a pivotal point for a death
penalty convict at the end because of humanitarian considerations. At its very
core, this piece of writing will try to unravel the present layers of
legislation and judicial precedents that underscore the mercy petition framework,
shedding light on the evolution of new proposed procedures that will govern
this exceptional plea for clemency.
Section 472
of the “Bharatiya Nagarik Suraksha Sanhita, 2023” (BNSS, 2023) tells about a
completely new provision named as “Mercy Petition in Death Sentence Cases” in
Chapter ???? named
“Execution, Suspension, Remission and Commutation of Sentences”.[2] Currently the
country of India has no legal procedure with respect to mercy petitions or plea
for clemency except the Constitutional safeguard under Article 72 (Pardoning
Power of the President).[3] “Limited
guidance is available, like guidelines released by the Ministry of Home
Affairs, some of the landmark judicial pronouncements, and jail manuals of
different states where the procedure varies from state to state.”[4] This paper
discusses that Section 472 of the BNSS, 2023 will bring, along with their
possible implications. The wording of this provision attempts to simplify and
streamline the legal process for plea of mercy, however its language conflicts
with the judicial body of mercy jurisprudence that has grown over time by our
judicial institutions. It so seems to have a negative impact on a convicted
person's fundamental right to beg for mercy.
This
comparative research exploration elucidates the meticulous steps will be
involved in initiating, documenting, applying for, and submitting these pleas.
This analytical treatise delves into present practices with proposed legal
provisions to underscore the intricate balance between the demands of justice
and the potential for mercy.
2. MEANING
A
formal plea for clemency or leniency, usually sent to a governor or head of
state, is known as a mercy petition. It asks for a decrease in the severity of
the punishment meted out to a person who has been found guilty of a crime. That
formal plea for mercy or clemency for a person guilty of a crime is known as a
mercy petition. It is made to a higher authority, such as the President,
Governor, or Head of State, and is frequently motivated by humanitarian concerns,
the need for a fair trial, or concerns about rehabilitation and justice. The pardon for the death
penalty can be given by way of the filing of a mercy petition with the head of
the state. The theory behind the power of pardon is that[5]
“every civilized country recognizes, and has therefore provided for, the
pardoning power to be exercised as an act of grace and humanity in proper
cases. Without such a power of clemency, to be exercised by some department or
functionary of a government, a country would be most imperfect and deficient in
its political morality and in that attribute of Deity whose judgments are
always tempered with mercy.[6]”
Public interest and morality are the cornerstones of the mercy plea. The
justification for its application is the public welfare, economic
considerations, reformation, and rehabilitation goals, which constitute the
legitimate goals of all forms of punishment.
3. PRESENT LEGAL FRAMEWORK
Till
now India has no statutory provisions which is guiding the mercy petition. But
in our Constitution there is one Article which tell about the pardoning power
in case of death penalty. Article 72 provides the President’s pardoning power
of the punishment of any convicted person of any offence or offences. This
Article says, “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.” The power is an executive
action. The President acts on the advice of the council of ministers[7]
and report from the Home Ministry. The power of giving mercy by the President
to a person convicted of death penalty is absolute and cannot be challenged
under any statutory laws. Article 161 of the Constitution give the power to the
Governor of any State. There are no legal procedures or regulatory framework
which deals with the mercy petitions. There are few judicial pronouncements and
Home Ministry’s guidelines[8],
which are followed to dispose of those petitions. The execution of the same is
done by jail manuals of different States. In Epuru Sudhakar v. Govt. of A.P.,[9]
the Honourable
Supreme Court held, “The orders under Article 72 could be challenged on the
following grounds;
a) That the
order has been passed without application of mind;
b) That the
order is mala fide;
c) That the
order has been passed on extraneous or wholly irrelevant considerations;
d) That
relevant materials have been kept out of consideration;
e) That the
order suffers from arbitrariness.”
Some
of the landmark judicial decisions the Article 72 is made subjected to judicial
review. “The question as to whether the case is appropriate for the exercise of
power conferred by this Article depends upon the facts and circumstances of
each particular case."[10]
The Apex Court has no
jurisdiction when application is pending[11]
and the convicted person cannot exercise judicial review to appeal only on the
ground of undue delay in disposing of mercy petition.[12]
Yet there are no standardize process to deal with smooth disposal of the clemency
for the death row persons. Even the current “Code of Criminal Procedure, 1973”
has no specific Sections to deal with these petitions. Sometimes there are
conflicting situations arise between the executive orders and the judicial
decisions. “The delay in the execution of the petition can be a ground for the
commutation of the death penalty to protect the life, liberty and dignity of
the convicted person.”[13]
In general the problems facing by the current framework are in short as
follows;
a) Delay in
decision making.
b) Inconsistent
orders of the participating institutions.
c) Lack of
transparency which leads to violation of basic human rights.
d) Political
influence.
e) Public
pressure.
f) Media trial.
g) No
standardize legal procedure.
4. THE PROPOSED REFORM
Chapter
???? of the “Bharatiya Nagarik Suraksha Sanhita, 2023” is about “Execution,
Suspension, Remission and Commutation of Sentences”. To address the above
mentioned problems and make a provision regarding that Section 472 of the
proposed sanhita newly added, which delves with “Mercy Petition in death
sentence cases”. There are many things added in the provisions and it contains
seven sub-sections.
“The
mercy petitions are to be filed before the President of India under Article 72
or the Governor of the State under Article 161 of our Constitution. The
convicted person, who is on the death row, or his legal heir or any relative
can file the mercy petition. It should be filed within thirty days after the
date on which the Superintendent of Jail informs of his dismissal of appeal or
special leave application, or date of confirmation of the sentence of death by
the High Court and the time has expired to file an appeal or special leave in
the Supreme Court.”[14]
The request for mercy must be submitted to the President within sixty days
after the Governor rejects or disposes of the petition.[15]
In
case there are more than one convict in a single case, the Superintendent of
the Jail or officer in charge of the Jail shall ensure that every convict also
makes the mercy petition within a period of sixty days from the date on which
any one of them apply. If such petitions are not received by them from the
other convicts then Superintendent of the Jail shall send the names, addresses,
copy of the record of the case and all other details of the case along with the
mercy petition of the applicant to the concerned Government.[16]
Upon receiving of the mercy petition, the Central Government seeks the inputs
of the State Government and obtain case records from Superintendent of the
Jail. of the same, the Government will promptly forward it to the President
within sixty days of its receipt.[17]
Sub-section
(5) of Section 472 provides “the President may, consider, decide and dispose of
the mercy petition. In case there are more than one convict in a case, the
petitions shall be decided by the President together in the interests of
justice.”[18]
Following
that, the Central Government will, within forty-eight hours, relay this
information to the Home Department of the State Government and the
Superintendent of the Jail or the officer in charge of the Jail upon receiving
the President's decision on the mercy petition.[19]
The
last sub-section of this Section prohibits the Court’s power of judicial review
and the convicted person’s right to appeal. In the language of the provision,
“No appeal shall lie in any Court against the order of the President made
under Article 72 or Governor made under Article 161 of the Constitution and it
shall be final, and any question as to the arriving of the decision by the
President shall not be enquired into in any Court.”[20]
It totally curtails the power of the Court to review the mercy petition on any
grounds and simultaneously it overrides the judicial pronouncements of our Apex
Court. It also does not mention the time period to dispose of the mercy
petition by the President of our country.
Somehow,
the proposed reform is criticized for not addressing the ongoing defections in
dealing with the mercy petitions. “The critiques are
i.
It strictly provides there can be no appeal of the order
of President issued under Article 72 and of Governor issued under Article 161
of our Constitution.
ii.
Total exclusion of judicial review of mercy petitions
in any case on any grounds. The judicial review, which is considered as one of
the features of basic structure doctrine,[21]
is totally sidelined in the proposed Act.
iii.
No check and transparency in case of any mala fide
orders.
iv.
Again no time period mention to decide and dispose of the
mercy plea by the President. The time period within which the mercy petition to
be decide by the President is not mentioned. Now the delay to dispose of the
mercy plea problem will be remain the same.
v.
No period is mentioned between the rejection of
petition and execution of death penalty.
vi.
The sub-section (5) of Section 472 provides the
President ‘may’ consider, decide and dispose of the mercy petition, not ‘shall’
consider, decide and dispose of that mercy petition.
vii.
No changes proposed on the execution part of the
petition in case of rejection of the mercy plea.”
5. CONCLUSION
In
conclusion, the inclusion of Section 472 in the BNSS, 2023, addressing mercy
petitions in death sentence cases, marks a pivotal moment in our legal
framework. This provision underscores the humane dimensions of justice and
provides a mechanism for reconsideration when the ultimate penalty is at stake.
The final plea, as enshrined in this legislation, acknowledges the fallibility
of human judgment and the irreversible nature of capital punishment.
This
legislative stride reflects a commitment to a legal system that values the
sanctity of life and the importance of due process. In embracing this final
plea mechanism, we affirm our commitment to a legal system that not only
punishes wrongdoing but also upholds the fundamental values of compassion,
fairness, and respect for life. At the end, “in attempting to streamline and
standardize the procedure applicable to mercy petitions, the language of
Section 472 of the BNSS, 2023 runs contrary to the mercy jurisprudence
judicially developed over the years. As a result, it appears to adversely
affect a convict’s constitutional right to file mercy petitions.”[22]
If the problems are properly addressed and necessary changes will be made, then
it will become a complete and standard legal provision for the plea of mercy.
[1] Srinibas Praharaj, a student of
LLM in Criminal and Security Law, School of Criminal Law and Military Law,
Rashtriya Raksha University, Gandhinagar, Gujarat, Bharat.
[2]https://prsindia.org/files/bills_acts/bills_parliament/2023/Bharatiya_Nagarik_Suraksha_Sanhita,_2023.pdf
[3] Constitution of India, 1950-
https://legislative.gov.in/constitution-of-india/
[4] 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.
[5]
https://articles.manupatra.com/article-details/Pardoning-power-of-President
[6] Epuru Sudhakar & Anr. v.
Govt. of A.P. & Ors., (2006) 8 SCC 161.
[7] State v. Prem Raj, (2003) 7
SCC 121.
[8] Ministry of Home Affairs, India,
‘Guidelines for Safeguarding the Interest of the Death Row Convicts’.
[9] AIR 2006 SC 3385.
[10] Kuljeet Singh v. Union of India,
(1983) 3 SCC 324.
[11] Mohinder v. State, AIR 1976
SC 2299.
[12] Devinder Pal Singh v. State of
NCT of Delhi, AIR 2013 SC 1975.
[13] Shatrughan Chauhan & Anr.
v. Union of India and Ors., (2014) 3 SCC 1.
[14] Bharatiya Nagarik Suraksha Sanhita, 2023, Section 472,
sub-section (1).
[15] Bharatiya Nagarik Suraksha Sanhita, 2023, Section 472,
sub-section (2).
[16] Bharatiya Nagarik Suraksha Sanhita, 2023, Section 472,
sub-section (3).
[17] Bharatiya Nagarik Suraksha Sanhita, 2023, Section 472,
sub-section (4).
[18] Bharatiya Nagarik Suraksha Sanhita, 2023, Section 472,
sub-section (5).
[19] Bharatiya Nagarik Suraksha Sanhita, 2023, Section 472,
sub-section (6).
[20] Bharatiya Nagarik Suraksha Sanhita, 2023, Section 472,
sub-section (7).
[21] Indira Nehru Gandhi v. Raj
Narain, 1975 SCC (2) 159.
[22]
https://p39ablog.com/2023/11/criminal-law-bills-2023-decoded-20-mercy-petitions/
Article Information
THE FINAL PLEA “Mercy Petition in Death Sentence Cases” (Section-472 of Bharatiya Nagarik Suraksha Sanhita, 2023)
Authors: SRINIBAS PRAHARAJ
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/25
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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