Under new Bill, death row convict can't appeal against President's decision on mercy plea

A death-row convict whose mercy petition has been disposed of by the President will have no right to appeal in a court against the decision when the new Bharatiya Nagarik Suraksha Sanhita Bill (BNSS), 2023 becomes law.

Article 72 of the Constitution empowers the President to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of anyone convicted of any offence.

"No appeal shall lie in any court against the order of the President made under Article 72 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," according to section 473, an addition to the BNSS Bill, which proposes to replace the Code of Criminal Procedure (CrPC).

The Supreme Court has ruled in the past that the exercise of prerogative powers, such as clemency and pardons, by the President or the Governor is justiciable and may be challenged on grounds like an "undue and unexplained" delay, solitary confinement, etc.

Most death-row convicts were seen approaching courts against the rejection of their mercy pleas. In some cases, an "inordinate delay" by the President in deciding mercy pleas was held to be violative of Article 21 (right to life) of the Constitution and had even led to commutation of the death sentence.

There have been several instances in the past where death row convicts approached the court at the eleventh hour, seeking a review of the President's rejection of their mercy petitions.

These include 1991 Mumbai blasts convict Yakub Memon in 2015 and the four Nirbhaya case convicts in 2020. In both cases, the Supreme Court refused to stay the executions.

Section 473 of the BNSS Bill also seeks to rule out delays on account of separate pleas filed by multiple death-row convicts in the same case.

In the Nirbhaya case, the four convicts had filed their mercy pleas at separate times, forcing a delay until the last plea was rejected.

The Bill proposes that a jail superintendent shall ensure that every convict, in case there are more than one in a case, submits the mercy plea within 60 days and where no such petition is received from the other convicts, he shall himself send the names, addresses, copies of the case records and all other details to the Centre or the state government, along with the original mercy petition.

The president shall decide the petitions of all the convicts together.

Apart from specifying time-limits for filing mercy pleas in death-row cases with the Governor (Article 161) and the President (Article 72), section 473 of the BNSS Bill seeks to give the Centre 60 days' time from the date of receipt of the state government's comments on the pleas to send its recommendation to the President.

However, no time-limit has been specified for the President for disposing of the mercy petitions.

The President's decision on a mercy plea is sought to be communicated by the Centre to the state home department and jail superintendent concerned within 48 hours of the disposal. However, despite a guideline by the Supreme Court in its 2014 order in the Shatrughan Chauhan case, no 14-day gap between the rejection of a mercy plea by the President and the date of execution has been outlined in section 473 of the Bill.

Union Home Minister Amit Shah introduced the Bharatiya Nyaya Sanhita (BNS) Bill, 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS) Bill, 2023 and Bharatiya Sakshya (BS) Bill, 2023 in the Lok Sabha on August 11. The bills seek to replace the Indian Penal Code, 1860, Code of Criminal Procedure, 1898 and Indian Evidence Act, 1872 respectively.