Introduction
A mercy petition is a formal request made by a person sentenced to death or by the person’s legal heir or relative, seeking clemency from the President of India or the Governor of a State. Clemency may take the form of a pardon, commutation of the death sentence to life imprisonment, remission, or other relief permitted by law.
In India, the power to grant mercy is derived from Articles 72 and 161 of the Constitution. The President exercises this power in relation to matters within the Union’s executive domain, while the Governor exercises it in relation to matters within the State’s executive domain. The constitutional guarantee of life and personal liberty under Article 21 also gives special importance to the fair and humane treatment of a person facing execution.
No justice system is completely free from the possibility of error. The mercy jurisdiction therefore acts as a final constitutional safeguard against miscarriage of justice, excessive punishment, undue delay, or circumstances that may justify humanitarian relief. Factors such as the convict’s physical and mental condition, age, family circumstances, conduct in prison, and other mitigating considerations may be relevant while examining a mercy petition.
The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the Code of Criminal Procedure with effect from 1 July 2024, has introduced a specific statutory procedure for mercy petitions in death sentence cases through Section 472. The provision seeks to bring greater clarity, structure, and time discipline to a process that has traditionally been governed largely by constitutional provisions, executive rules, and judicial guidelines.
Constitutional Background and Important Judicial Decisions
The power of pardon or clemency is an executive power. However, it is not exercised personally or independently by the president or governor. In Maru Ram v. Union of India (1981), the Supreme Court held that the President is required to act on the advice of the Council of Ministers.
In Kehar Singh v. Union of India (1989), the Supreme Court examined the scope of the President’s power under Article 72. The Court recognized the wide nature of the constitutional clemency power but clarified that a person seeking mercy has no right to an oral hearing before the President.
A major development came in Shatrughan Chauhan v. Union of India (2014). The Supreme Court emphasized that the mercy process must be handled with care and without unreasonable delay. It held that undue delay in deciding a mercy petition can, in appropriate circumstances, constitute a ground for commuting the death sentence to life imprisonment. The Court also emphasized the need for a reasonable period between the rejection of a mercy petition and execution so that the condemned prisoner and family have an opportunity to prepare themselves and pursue any remaining legal remedies.
The constitutional validity of the death penalty was considered in Bachan Singh v. State of Punjab (1980). The Supreme Court upheld capital punishment but laid down the principle that it should be imposed only in the “rarest of rare” cases, after giving due weight to aggravating and mitigating circumstances.
The 262nd Report of the Law Commission of India (2015) recommended abolition of the death penalty for all offenses other than terrorism-related offenses and waging war against the State. However, this recommendation has not been implemented, and the death penalty continues to remain part of Indian law for certain offenses.
The New Procedure Under Section 472 of the BNSS, 2023
Section 472 BNSS introduces a more clearly defined procedure for mercy petitions in death sentence cases. The principal stages are as follows:
Filing of the Mercy Petition
A person sentenced to death, or the person’s legal heir or relative, may submit a mercy petition within 30 days from the date on which the jail superintendent informs the person that the Supreme Court has finally disposed of the relevant appeal, review petition, or special leave petition, or, where applicable, that the High Court has confirmed the death sentence and the time for approaching the Supreme Court has expired.
Petition Before the Governor and President
The mercy petition must first be submitted to the governor under Article 161. If the petition is rejected by the governor, a further mercy petition may be submitted to the president under Article 72 within 60 days from the date of receipt of the governor’s decision.
Cases Involving Multiple Convicts
Where more than one person has been sentenced to death in the same case, the jail superintendent is required to ensure that each convict is informed of the right to submit a mercy petition. If a convict does not submit a petition within the prescribed period, the superintendent must nevertheless forward the relevant details and records to the appropriate government along with the petitions that have been submitted.
Role of the Central Government
After receiving the mercy petition, the Central Government seeks the views and comments of the State Government and examines the relevant case records. Upon receiving the necessary records from the State, the Central Government is required to make its recommendation to the President within a strict statutory period of 60 days.
Decision in Cases Involving Co-Convicts
Where several convicts are sentenced to death in the same case, their mercy petitions are to be considered together. This is intended to promote consistency and fairness in the exercise of clemency.
Communication of the President’s Decision
After the president takes a decision, the central government is required to communicate it to the concerned state home department and the jail superintendent within 48 hours.
Finality and Judicial Review
The decision taken in the exercise of constitutional clemency under Articles 72 or 161 is final and not subject to an appeal on its merits. However, this does not place executive clemency entirely beyond judicial scrutiny. Courts may undertake limited judicial review if the decision is challenged on recognized constitutional grounds, such as mala fides, non-application of mind, arbitrariness, or reliance on wholly irrelevant considerations.
An important feature of Section 472 BNSS is that, while it prescribes strict statutory timelines for the filing of petitions and for the Central Government’s recommendations (60 days), it intentionally does not prescribe a time limit for the President to render a final decision. Consequently, the constitutional framework and the judicial precedents established by the Supreme Court—particularly regarding the effect of undue executive delay—remain vital safeguards against arbitrary inaction.
Recent Judicial Developments
The Supreme Court has repeatedly emphasized that mercy petitions involving death sentences must be processed promptly, carefully, and sensitively.
In State of Maharashtra v. Pradeep Yashwant Kokade (2024), the Supreme Court issued directions aimed at ensuring the speedy processing of mercy petitions. Among other measures, states and union territories were directed to establish dedicated cells in their home or prison departments for dealing with such petitions. The Court also stressed the need for careful monitoring by the Sessions Courts so that execution warrants are not issued until the convict has exhausted the available legal and constitutional remedies.
The relationship between the rights of death-row prisoners, the interests of victims, and the need for an efficient mercy process has also received continuing judicial attention. In 2025, the Union Government approached the Supreme Court seeking modification of certain aspects of the guidelines laid down in Shatrughan Chauhan, particularly in relation to practical difficulties and the interests of victims. The issue reflects the continuing effort to strike a proper balance between the rights of the condemned prisoner and the legitimate concerns of victims and society.
Judicial review of a mercy decision remains limited rather than completely excluded. Courts do not ordinarily examine whether the president or governor reached the “correct” conclusion on the merits. Their role is confined to examining whether the constitutional power was exercised in accordance with law and on relevant and proper considerations.
Importance of Section 472 BNSS
Section 472 BNSS is significant because it attempts to convert a traditionally executive and constitutional process into a more structured and time-bound administrative procedure.
Death sentence cases are different from ordinary criminal cases because the consequence is irreversible. Every stage—from the judicial process to the mercy petition and eventual execution—therefore demands exceptional care.
The statutory timelines can help reduce avoidable administrative delays. The requirement of coordination between prison authorities, state governments, the central government, and constitutional authorities can also make the process more transparent and accountable.
At the same time, speed must never come at the cost of fairness. A mercy petition is not merely another administrative file. It concerns the life of a human being, often after years of litigation and incarceration. The authorities must therefore ensure that the prisoner receives proper information, access to legal assistance where necessary, and a genuine opportunity to present relevant grounds for clemency.
Conclusion
Section 472 of the BNSS, 2023, marks an important development in the law governing mercy petitions in death sentence cases. By prescribing clearer procedures and timelines for the filing, processing, and communication of mercy petitions, it seeks to reduce administrative uncertainty and unnecessary delay.
However, the constitutional character of the mercy power under Articles 72 and 161 remains intact. The final decision is not subject to an appeal on its merits, although limited judicial review continues to be available to prevent arbitrariness, mala fides, non-application of mind, or reliance on irrelevant considerations.
Ultimately, the mercy jurisdiction is the last human safeguard in a case where the punishment is irreversible. Section 472 BNSS can make that safeguard faster and more orderly, but its true value will depend on how sensitively and fairly it is implemented.
In a death sentence case, justice must be final—but never hurried.
