Mercy Petitions Clause 473

Mercy Petitions Clause 473

 Cl.473 BNSS is a new provision titled ‘Mercy Petition in death sentence cases’ which lays down the procedure for submitting mercy petitions to the President and Governor under Art.72 and Art.161 of the Constitution, respectively. A statutory written procedure with respect to mercy petitions does not exist presently; limited guidance is available in jurisprudence, guidelines released by the Ministry of Home Affairs, and jail manuals of different states where the procedure varies from state to state.217 This piece discusses the changes brought in Cl.473 BNSS along with its possible implications. While there may be benefi t in attempting to streamline the procedure applicable to mercy petitions, Cl.473 BNSS 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 fi le mercy petitions.

I.           Background

Art.72 and Art.161 of the Constitution provides the President and Governor respectively with wide powers to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. These powers, granted to the highest dignitaries of the State, operate on a different plane than judicial powers. Their exercise does not modify the judicial record.218 Further, these powers are very expansive - the President and Governor can look beyond the case fi les, and into any circumstance pertaining to the convict and their life. These powers also cannot be restricted by statute.219 They are signifi cant since this gives convicts a constitutional right to fi le a mercy petition,220 often a last hope for those sentenced to death.221 221 Jagdish v. State of Madhya Pradesh (2020) 14 SCC 156. 220 Shatrughan Chauhan. 219 Shatrughan Chauhan v. Union of India (2014) 3 SCC 1; Maru Ram v. Union of India (1981) 1 SCC 107. 218 Kehar Singh v. Union of India (1989) 1 SCC 204. 217 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.

II.         Restriction on who can file Mercy Petitions Cl.473(1), through the phrase ‘convict under the sentence of death or his legal heir or any other relative’ appears to limit the right to fi le a mercy petition to the convict or persons related to them. Presently, there is no such restriction. Although Art.72 and Art.161 are rights available to convicts, mercy petitions are often fi led by third parties on their behalf, such as organisations or unrelated individuals.222 It is not uncommon for death row convicts to lose contact with their families.223 In such situations, under the BNSS, only one option would remain – for the death row convicts to themselves fi le the petition. Most death row convicts are extremely poor;224 lack of education and other vulnerabilities results in their inability to understand and meaningfully exercise their legal rights.225 This inability is possibly exacerbated by the emotional distress that accompanies the knowledge of an imminent execution. Importantly, an overwhelming majority of death row convicts suffer from mental illnesses, and many have intellectual disability,226 which might render them incapable of fi ling a mercy petition, or giving instructions to lawyers to fi le on their behalf. Thus, by barring third parties from fi ling mercy petitions, the BNSS fails to recognise these realities and is likely to have a severe adverse impact on a meaningful exercise of this right.

III.      Restriction on the number of Mercy Petitions Cl.473(1) BNSS uses the phrase ‘if he has not already submitted a petition for mercy’. This may imply a restriction on the number of mercy petitions that can be submitted on behalf of the convict to only one; that is, one before the Governor and one before the President. Presently, the Court has recognised the right to fi le multiple mercy petitions before the same authority, in case of change of 226 Project 39A, Deathworthy: A Mental Health Perspective of the Death Penalty, 2021, Page 269. 225 Project 39A, Deathworthy: A Mental Health Perspective of the Death Penalty, 2021, Page 219. 224 Project 39A, Death Penalty India Report, 2016; Shatrughan Chauhan [241.11]. 223 Project 39A, Deathworthy: A Mental Health Perspective of the Death Penalty, 2021, Page 226. 222 Narayan Chetanram Chaudhary v. State of Maharashtra 2023 SCC OnLine SC 340: petition fi led by public spirited individuals; Balwant Singh v. Union of India 2023 SCC OnLine SC 555: petition fi led by Shiromani Gurdwara Parbandhak Committee. circumstances.227 For instance, if a convict develops mental illness subsequent to fi ling of the fi rst mercy petition, they can fi le another petition on the basis of this new ground. Restricting the number of permissible petitions to only one would deprive a convict of any opportunity to submit such subsequent developments for consideration. Such a right would be especially required under the BNSS, which permits only convicts or their families to fi le the petition, and that too within a short and rigid time limit as discussed below. This increases the likelihood of the fi led petitions being hurried and not comprehensive.

IV. Introduction of timelines Cl.473 provides for several time limits. First, where a mercy has not already been submitted, Cl.473(1) imposes the time limit of thirty days for submitting mercy petitions to the Governor or the President, from the date on which the Superintendent of Jail informs the prisoner: (a) about the rejection of their special leave petition by the Supreme Court, or (b) about the date of confirmation of the death sentence by the High Court and the time for fi ling an appeal or a special leave petition in the Supreme Court has expired. Second, Cl.473(2) states that the petition may be fi rst made to the Governor and upon rejection, the convict will have sixty days from the date of rejection, to make a petition to the President. Since the President is required to act in accordance with the advice of the Council of Ministers, sub-clause (4) requires the Central Government to seek comments of the State Government. Upon receipt of these, the Central Government is required to make recommendations to the President within sixty days. Third, Cl.473(6) requires communication of the President’s decision on the mercy petition by the Central Government within forty-eight hours, to the Home Department of the State government and the Superintendent of the Jail or offi cer in charge of the Jail. Note that while an unreasonable executive delay is a valid supervening circumstance for reduction of a death sentence, the Supreme Court has been wary of creating fi xed timelines for consideration of mercy petitions by the President 227 Yakub Abdul Razak Memon v. State of Maharashtra (2015) 9 SCC 552. 76and Governor.228 In line with this jurisprudence, Cl. 473 does not create such time limits for the President or the Governor. a. Issues with thirty-day timeline for submission of Petitions under Cl.473(1) The procedure under the BNSS may be aimed at achieving effi ciency, however, the creation of rigid time limits is extremely problematic; practically nullifying the prisoner’s ability to fi le a comprehensive petition. Presently, the Supreme Court has held that ‘reasonable’ time must be afforded to convicts to fi le a mercy petition.229 BNSS introduces a thirty-day deadline for submission of mercy petitions under Cl.473(1), which may not be suffi cient time for the convicts/their families to go through all the necessary documents and prepare the petition. For instance, other than case records, factors like post conviction mental illness and solitary confi nement are also relevant in mercy petitions. Procuring records documenting these, especially from the prison administration after fi ling various applications, may take time. Further, given that mercy petitions are fi led as a last resort against executions, it is important to seek legal advice. Locating and engaging an affordable lawyer is a time-consuming process, especially given the likely poor socio-economic profi le of the convict. Communicating with and instructing lawyers is also generally a time consuming exercise since most jails permit visits only for a few minutes, across a metal barrier. b. Issues with timeline for submission of Mercy Petition to President under Cl.473(2) It is unclear why the BNSS has a thirty-day deadline for fi ling an application before the Governor but a sixty-day deadline for fi ling it before the President. In any event, while Cl.473(1) provides that the time period of thirty days will commence after the prisoner is informed about the relevant event as provided, Cl.473(2) 229 Shabnam v. State of Uttar Pradesh (2015) 6 SCC 702. 228 Triveniben v. State of Gujarat (1989) 1 SCC 678: In dealing with the question of executive delay, the Supreme Court held that fi xing a time limit for the exercise of Art.72 and Art.161 powers meant creating a restriction on a constitutional scheme; T.V. Vatheeswaran v. State of Tamil Nadu (1983) 2 SCC 68: it was held that delay of two years in executing a sentence of death (from the time it is fi rst passed by the Trial Court) would be suffi cient to entitle the prisoner to have his sentence quashed and commuted to life imprisonment. However, this decision was overturned in Sher Singh v. State of Punjab (1983) 2 SCC 344 where it was observed that no hard and fast rule can be laid down for fi xing a time limit. The Court was cognizant of the fact that the cause of delay in each case has to be assessed according to the facts of that case. states that the sixty-day period for fi ling a petition before the President would commence from the date of rejection/disposal of the mercy petition by the Governor. Thus, the latter deadline for fi ling a mercy petition before the President, does not commence from the date of the prisoner being informed. Further, there is no sub-clause mandating forthwith communication of rejections by the Governor to the concerned convict, or even to the Superintendent of Jail.230 Cl.473(6) provides a forty-eight hour timeline for communication of rejections including to the Superintendent but pertains only to rejections by the President. This lapse is signifi cant, since it can result in a situation where the convict’s petition is rejected by the Governor, however they are informed of the rejection only after sixty days, leaving no time to submit a petition to the President. c. Effect on ability to avail other available Judicial Remedies As per the timelines stipulated under Cl.473, it seems that convicts could be forced into fi ling a mercy petition without even exhausting all available judicial remedies. Presently, after imposition of a death sentence by the Sessions Court, the case goes to the High Court for confi rmation under s.366 CrPC. If the High Court confi rms the sentence, an appeal can be fi led before the Supreme Court. The Supreme Court routinely hears such appeals on merits in all death penalty cases.231 Even if a special leave petition is dismissed, convicts have the right to fi le a review petition.232 To further reduce any scope of error, the Supreme Court has carved out an exceptional remedy of curative petitions; these can be fi led on limited grounds to prevent miscarriage of justice or abuse of power.233 In the context of mercy petitions, the Supreme Court has repeatedly emphasised the importance of review petitions,234 and directed that convicts should have the right to fi le review petitions before they are required to fi le a mercy petition.235 235 B.A. Umesh v. Union of India 2022 SCC OnLine SC 1528; Shabnam. 234 Shabnam. 233 Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388 [51]: The grounds identifi ed were violation of principles of natural justice and apprehension of bias. 232 Mohd. Arif v. Supreme Court of India (2014) 9 SCC 737: the right of an open hearing in review petitions in death penalty cases, was held as essential to uphold Art.21 rights of the convicts. 231 Babasaheb Maruti Kamble v. State of Maharashtra (2019) 13 SCC 631. 230 In Shatrughan Chauhan, the Supreme Court laid down guidelines, requiring that the prisoner be informed forthwith and in writing about rejection of their mercy petitions. Cl.473 is then contrary to present jurisprudence, and in effect forces convicts to fi le mercy petitions when the options to fi le a review petition and curative petition exist. For instance, after dismissal of their appeal in the Supreme Court, convicts will only have thirty days to fi le both a mercy petition under Cl.473(1), as well as a review petition, which also has a time limit of thirty days.236 While courts can condone delays in filing of review and curative petitions, these simultaneous time limits may still adversely affect the ability of convicts to pursue either remedy effectively. Further, not fi ling the mercy petition within the set time limit may amount to forfeiture of this right.