A mercy petition is a formal appeal submitted by individuals facing death sentences or imprisonment, requesting clemency from the President or Governor, depending on the jurisdiction. This practice is observed in several countries, including the United States, the United Kingdom, Canada, and India. Central to this process is the fundamental right to life, which is enshrined in Article 21 of the Indian Constitution.

The rationale behind the clemency powers in India acknowledges that no judicial system is perfect, highlighting the necessity for a process to address potential judicial mistakes. This mechanism serves as a safeguard against possible miscarriages of justice, as demonstrated in 2012 when 14 judges from the Supreme Court and High Courts sent letters to the President of India pointing out wrongful capital punishment cases from the 1990s, in which 15 individuals were unjustly sentenced, including two who were executed. A key aim of the clemency process is to sustain public confidence in the criminal justice system.

Clemency or mercy is granted based on considerations of the individual's health, physical and mental fitness, and the financial situation of their family, particularly whether they are the sole breadwinner.

In the Supreme Court ruling of Shatrughna Chauhan v. Union of India (2014), it was determined that the right to request mercy under Article 72/161 of the Constitution is a constitutional entitlement and not subject to the arbitrary judgment of the executive and that excessive delays in addressing mercy petitions may prompt courts to convert death sentences into lesser penalties.

The President’s secretariat receives the petitions on behalf of the President, after which they are forwarded to the Ministry of Home Affairs for their feedback and suggestions.

In the case of Kehar Singh v. Union of India (1989), the Supreme Court thoroughly explored the extent of the President's pardoning authority as outlined in Article 72. In its ruling concerning Kehar Singh, the court indicated that a convict does not possess the entitlement to an oral hearing regarding a mercy petition.

In the case of Bachan Singh v. State of Punjab in 1980, the Supreme Court affirmed the constitutionality of the death penalty while putting forth significant limitations. The court stated that judges must not be "bloodthirsty" and emphasized that the death penalty should only be imposed in "the rarest of rare cases" where no viable alternative exists, after thoroughly considering all possible mitigating factors.

In 2015, the 262nd Law Commission released a report advocating for the "complete elimination" of the death penalty "for all crimes except those related to terrorism and acts of war.

In the Supreme Court case of Maru Ram v. Union of India (1981), it was ruled that the President must act based on the recommendations of the Council of Ministers (headed by the Prime Minister) when dealing with mercy petitions.

Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS):

This is a new provision that ensures the prompt and fair assessment of mercy petitions. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has overhauled the Criminal Procedure Code, 1973 (CrPC) and brought significant changes to how mercy petitions are submitted in cases involving the death penalty. These changes impact critical aspects like justiciability, deadlines, and the execution process.

Section 472 of Bharatiya Nagarik Suraksha Sanhita:

1. A person sentenced to death, their legal heir, or any relative may file a mercy petition before the President of India under Article 72 or the Governor of the State under Article 161 of the Constitution of India within thirty days of being informed by the Superintendent of the jail that either:
   • Their appeal, review, or special leave to appeal has been dismissed by the Supreme Court;
   • The High Court has confirmed the death sentence and the period for appealing or seeking special leave from the Supreme Court has expired.
      
2. The petition mentioned in subsection (1) may initially be submitted to the Governor, and if it is rejected or otherwise disposed of, a subsequent petition must be made to the President within sixty days of the rejection or disposal.
    
3. The Superintendent of the jail or the officer responsible for the jail will ensure that each convict files the mercy petition within sixty days, even if multiple convicts are involved in the case. If a petition is not received from the other convicts, the Superintendent will forward the names, addresses, case records, and any other relevant details to the Central or State Government for consideration along with the mercy petition.
    
4. Upon receipt of the mercy petition, the Central Government will request comments from the State Government and evaluate the petition alongside the case records, aiming to make recommendations to the President as quickly as possible, and within sixty days of receiving the State Government's comments and the records from the Superintendent of the Jail.
    
5. The President has the authority to review, decide upon, and dispose of the mercy petitions. If there are multiple convicts in the same case, their petitions will be addressed together to ensure fairness.
    
6. Once the President's decision on the mercy petition is received, the Central Government must inform the Home Department of the State Government and the Superintendent of the jail or the officer in charge within forty-eight hours.
    
7. There is no possibility of an appeal in any court against the decisions made by the President or the Governor under Article 72 or Article 161 of the Constitution; these decisions are final, and any inquiry regarding the decision-making process of the President or the Governor is not permitted in any court.

Nonetheless, the President has not been given a specific time frame to address the mercy petition on his part.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565