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Pakistani terrorist Arif Mohammad can still challenge the rejection of mercy petition citing delay: Here is how that will change with the new criminal laws

BNSS Section 472(7) states that the President’s decisions on mercy petitions are final. Courts cannot question or review the grounds for President’s pardons or commutations.

In May this year, President Droupadi Murmu rejected the mercy petition of Mohammed Arif, alias Ashfaq, a Pakistani terrorist found guilty in the nearly 24-year-old Red Fort attack case.

However, under the existing laws, the Pakistani terrorist could still petition the Supreme Court under Article 32 of the Constitution to have his sentence commuted on the grounds of protracted delay, even though the mercy request was rejected by the President.

In the past, the Supreme Court has ruled that the president’s or governor’s use of prerogative powers, including clemency and pardons, is justiciable and can be challenged on grounds such as “undue and unexplained” delay, solitary confinement, and so on.

Several death-row convicts in the past approached the courts to challenge the rejection of their mercy petitions. In a few instances, the president’s “inordinate delay” in deciding mercy requests was found to be a violation of Article 21 (right to life) of the Constitution, leading to the commutation of the death sentence.

Notably, Article 72 of the Indian Constitution empowers the President of India to grant pardons, reprieves, respites, or remissions of punishment, and to suspend, remit, or commute the sentence of any person convicted of any offence. Similarly, Article 161 grants powers to the Governor of a state for offences against state law.

After exhausting all judicial appeals, a convict on death row can submit a mercy petition to the President or Governor. The petition is then forwarded to the Ministry of Home Affairs (MHA) for review. The MHA evaluates the petition and provides recommendations to the President or Governor. There is no specific timeline for the processing and decision on mercy petitions, sometimes leading to prolonged delays.

There have been instances where terrorists and convicts of heinous crimes have attempted to misuse these provisions to delay or evade justice. For instance, the case of Ajmal Kasab, who was one of the Pakistani terrorists involved in the 2008 Mumbai attacks, which killed 166 people. After being sentenced to death, Kasab filed a mercy petition. Although it was ultimately rejected by the President of India, the process contributed to delays in his execution, highlighting the potential exploitation of the system to buy time.

Similarly, in 2001 Parliament Attack convict Afzal Guru’s mercy petition took several years to be decided, during which there were numerous debates and controversies. The delay raised concerns about how the mercy petition process can be used to prolong legal proceedings and delay the execution of justice.

Notably, convicts often file multiple petitions and appeals in various courts, including review petitions, curative petitions, and mercy petitions, creating a protracted legal battle that delays final resolution. Lawyers appearing for convicts sometimes exploit procedural loopholes, such as filing petitions at the eleventh hour, thereby compelling courts to stay executions and review the petitions, further delaying the process.

There have been some cases wherein the courts overturned or commuted death sentences despite the rejection of mercy petitions by the President. This was seen in the V. Sriharan alias Murugan vs. Union of India (2014). This case involved three convicts in the Rajiv Gandhi assassination case—V. Sriharan alias Murugan, Santhan, and Perarivalan—who had their mercy petitions rejected by the then President Pratibha Patil. Later, the Supreme Court commuted their death sentences to life imprisonment, citing the inordinate delay of 11 years in deciding their mercy petitions as a ground for relief.

Currently, the convicts are free to challenge the rejection of a mercy petition by way of a writ in the Supreme Court. The Bhartiya Nagarik Suraksha Sanhita (BNSS), however, introduces a specific provision to disallow writ petitions challenging the rejection of mercy petitions.

What does the new Bhartiya Nagrik Suraksha Sanhita say about the process of mercy petitions?

Notably, the new Bharatiya Nyaya Sanhita (BNSS), proposed as an overhaul to the existing criminal justice system, introduces significant changes to these procedures. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is set to replace the Criminal Procedure Code of 1973. The CrPC specifies the procedure for arrest, prosecution, and bail. The new BNSS will come into effect from the 1st of July 2024.

Under BNSS Section 472(1), convicts can file mercy petitions within a period of thirty days from the date on which the Superintendent of the jail,—(i) informs him about the dismissal of the appeal, review or special leave to appeal by the Supreme Court; or (ii) informs him about the date of confirmation of the sentence of death by the High Court and the time allowed to file an appeal or special leave in the Supreme Court has expired.

The convicts can petition the Governor and President based on dismissal of appeals or confirmation of sentences. The new law says that in cases with multiple convicts in the same case, they all must file petitions within 60 days.

Pertinently, BNSS Section 472(7) states that the President’s decisions on mercy petitions are final. Courts cannot question or review the grounds for President’s pardons or commutations.

Centre’s role in mercy pleas under the BNSS

Under the provisions of the new BNSS, the Central Government shall, upon receiving the mercy petition seek the comments of the State Government and consider the petition along with the records of the case.

The Government will then have to provide recommendations to the President within 60 days. “Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists, Section 473 of the BNSS states.

“When there are more than one convict in a case, the petitions shall be decided by the President together in the interests of justice. No time limit is specified for the President’s decision. Upon receipt of the order of the President on the mercy petition, the Central Government shall within forty-eight hours, communicate the same to the Home Department of the State Government and the Superintendent of the jail or officer in charge of the jail,” it adds.

It is worth noting that the BNSS replacing the CrPC, introduces a more structured and time-bound procedure for handling mercy petitions, reducing bureaucratic delays. It mandates a specific timeframe within which the President or Governor must make a decision on the mercy petition after receiving recommendations.

Moreover, the BNSS emphasises transparency in the decision-making process, ensuring that all stakeholders, including the judiciary and the convict, are informed about the status and progress of the petition. In addition, under the provisions for mercy petitions in BNSS, detailed reasons for the acceptance or rejection of mercy petitions must be documented and communicated, thus enhancing transparency. While the CrPc had no specific provision for mercy petitions, the BNSS has specific sections regarding mercy petitions.

By setting defined timelines and requiring detailed documentation, the BNSS increases accountability within the system. Most importantly, with BNSS stating that the President’s decision on mercy petitions will be final, it would no longer leave the scope for ‘eminent intellectuals’ so-called human rights ‘champions’ to seek ‘mercy’ for terrorists by knocking on the doors of the judiciary at the eleventh hour.

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