How to File a Mercy Petition Under Articles 72 and 161 of the Constitution of India
- Kaustav Chowdhury
- 4 days ago
- 6 min read
How to File a Mercy Petition Under Articles 72 and 161 of the Constitution of India
A mercy petition is the last constitutional remedy available to a person who has exhausted all judicial options. When every avenue of appeal has been closed, executive clemency stands as the final safeguard against irreversible injustice. Under Articles 72 and 161 of the Constitution of India, the President and the Governor respectively hold the authority to grant pardons, commutations, and remissions of sentence. This power is most frequently invoked in death penalty cases where the convict has no further judicial recourse.
With the enactment of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the procedure for filing mercy petitions in death sentence cases has been codified under Section 472. This article covers the constitutional framework, filing procedure, time limits, grounds for mercy, and landmark Supreme Court judgments governing mercy petitions in India.
Constitutional Framework: Article 72 and Article 161
Article 72 confers upon the President of India the power to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute the sentence of any person convicted of an offence. This power extends to three categories: (a) cases where the punishment is by a court martial, (b) cases involving offences against any law to which the executive power of the Union extends, and (c) cases where the sentence is a sentence of death.
Article 161 grants a parallel but more limited power to the Governor of a State. The Governor may grant pardons, reprieves, respites, or remissions for offences against state laws. However, unlike the President, the Governor cannot grant a pardon in death sentence cases or court martial cases. In death sentence matters, only the President can exercise the pardoning power. This distinction determines the appropriate authority to approach when filing a mercy petition.
Types of Clemency Under the Indian Constitution
The Constitution recognizes five forms of executive clemency:
Pardon: Completely absolves the convict of all charges, punishments, and disqualifications, as though the conviction never occurred.
Commutation: Substitutes one form of punishment for a lighter one. A death sentence may be commuted to life imprisonment. For more on how courts approach life imprisonment without remission, refer to our detailed analysis.
Remission: Reduces the period of the sentence without changing its character. A ten-year sentence may be remitted to seven years.
Reprieve: A temporary suspension of a sentence, particularly a death sentence, allowing additional time to seek legal remedies.
Respite: Awards a lesser sentence on account of special circumstances such as physical disability or pregnancy of the convict.
Who Can File a Mercy Petition
Under BNSS Section 472, the following persons may file a mercy petition in a death sentence case: (a) the convict under sentence of death, (b) the legal heir of the convict, or (c) any other relative of the convict. This ensures that even if the convict is unable to file personally due to incapacity or illness, family members can pursue this remedy. For a broader overview of protections during criminal proceedings, refer to our guide on rights upon arrest under BNSS 2023.
BNSS Section 472: Codified Procedure and Time Limits
The BNSS, 2023 has introduced Section 472, which codifies the mercy petition procedure for death sentence cases. This is a significant development, as the earlier Code of Criminal Procedure did not contain a specific statutory framework for mercy petitions.
Time limit: The petition must be filed within 30 days from the date the Superintendent of the Jail informs the convict about the dismissal of the appeal, review, or special leave petition by the Supreme Court, or the confirmation of the death sentence by the High Court and expiry of the appeal period.
Hierarchical filing: The petition must first be submitted to the Governor. If the Governor rejects it, the convict may approach the President within 60 days of rejection.
Finality: No appeal lies against the order of the President or the Governor on a mercy petition. The decision is final.
Step-by-Step Procedure to File a Mercy Petition
Step 1: Once all judicial remedies are exhausted, the convict or an eligible person should begin preparing the mercy petition.
Step 2: Draft the petition clearly stating the grounds for mercy, supported by certified copies of court judgments, medical reports, character certificates, and evidence of reformation.
Step 3: File the petition before the Governor within 30 days of being informed about the dismissal of the final judicial remedy.
Step 4: If the Governor rejects the petition, file a fresh petition before the President within 60 days of the rejection.
Step 5: The Ministry of Home Affairs examines the petition and submits its recommendation to the President through the Council of Ministers.
Step 6: The President decides on the aid and advice of the Council of Ministers. The convict is informed of the outcome through the Jail Superintendent.
Grounds for Filing a Mercy Petition
While there is no exhaustive statutory list, the following circumstances are commonly invoked and have found judicial recognition: the convict was young at the time of the offence; mental illness, insanity, or intellectual disability; undue delay in trial, appeals, or execution; compelling family circumstances such as the convict being the sole breadwinner; genuine doubt about guilt; demonstrable reformation during incarceration; physical disability or serious illness; and the convict being a first-time offender. These grounds should be supported with documentary evidence and relevant legal precedent to strengthen the petition.
Role of the Council of Ministers
The President does not exercise Article 72 power independently. As established in Maru Ram v. Union of India (1980), the President acts on the aid and advice of the Council of Ministers under Article 74(1). Similarly, the Governor exercises Article 161 power on the advice of the State Council of Ministers. The Ministry of Home Affairs (in Union cases) or the Home Department (in State cases) examines the petition and submits its recommendation. The President or Governor is ordinarily bound by this advice.
Judicial Review of Mercy Petitions
Although the pardoning power is executive in nature, it is not immune from judicial scrutiny. In Epuru Sudhakar v. State of Andhra Pradesh, the Supreme Court held that the exercise of pardoning power can be challenged on grounds of non-application of mind, mala fide exercise, reliance on wholly irrelevant considerations, or arbitrary and discriminatory exercise of power. The Court cannot substitute its own judgment for that of the executive, but the scope of judicial review ensures accountability. Those navigating other aspects of criminal justice may find it useful to understand how to file a complaint against a police officer.
Key Supreme Court Judgments on Mercy Petitions
Kehar Singh v. Union of India (1989)
Kehar Singh was convicted for conspiracy in the assassination of Prime Minister Indira Gandhi under IPC Sections 120B and 302. His son filed a mercy petition under Article 72. The Supreme Court held that the President's power under Article 72 is of the widest amplitude. The President can examine the merits of the case afresh and is not limited to the judicial record alone. However, the convict has no right to an oral hearing on the mercy petition. This judgment established the expansive nature of presidential clemency while confirming that it remains subject to judicial review.
Shatrughan Chauhan v. Union of India (2014)
Fifteen death row convicts challenged their sentences citing inordinate delay in the disposal of mercy petitions. The Supreme Court commuted all 15 death sentences to life imprisonment, holding that unreasonable delay in disposal of a mercy petition violates Article 21. The Court also ruled that mental illness is a supervening circumstance warranting commutation, that a minimum of 14 days must pass between rejection and scheduled execution, and that solitary confinement of death row prisoners before rejection is unconstitutional. For related developments on prisoners' rights, see our analysis of the Supreme Court's ruling on degrading bail conditions.
Delay as a Ground for Commutation
The Shatrughan Chauhan judgment firmly established that inordinate delay in disposing of a mercy petition is a valid ground for commutation of a death sentence. The rationale is that prolonged uncertainty and the anguish of death row amount to cruel and inhuman treatment, violating Article 21. The delay may arise at any stage, including delay by the executive in processing the petition. In several subsequent cases, the Supreme Court has invoked this principle to commute death sentences. This underscores the importance of timely action in criminal matters, as discussed in our guide on applying for anticipatory bail under BNSS 2023.
Practical Tips and Conclusion
Filing a mercy petition is a remedy of last resort. Engage a competent lawyer experienced in constitutional and criminal law. Compile all supporting documents meticulously. Adhere strictly to the time limits under Section 472 of BNSS; missing the 30-day or 60-day deadline can render the petition time-barred. Clearly articulate the specific grounds for mercy, supported by facts and legal precedent.
Clemency powers under Articles 72 and 161 serve as a vital constitutional safeguard, reflecting the principle that justice must be tempered with mercy. While the exercise of this power is primarily executive, the framework of judicial review ensures accountability. For individuals navigating the criminal justice system, understanding these provisions is important, particularly in cases involving severe sentences. For further reading on criminal procedure, explore our guides on transfer of criminal cases and claiming victim compensation under BNSS 2023.
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