Mercy Petition and Commutation — Old CrPC vs New BNSS Comparison

In India, Section 472 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) puts the death-sentence mercy petition into statute: 30 days to file after the jail Superintendent informs the convict, 60-day steps, a 48-hour communication rule and a finality clause. Sections 473–477 re-enact CrPC ss.432–435, rewriting the commutation ladder and requiring Central "concurrence".

At a glance

These provisions create no offence, so there is no punishment or cognizable/bailable classification to record. The constitutional powers they sit beside are unchanged: under Article 72(1)(c) the President may pardon, suspend, remit or commute "in all cases where the sentence is a sentence of death". Article 161 gives the Governor the same powers for offences against laws on matters "to which the executive power of the State extends".

What changed

• s.472 — New. The CrPC contained no provision on mercy petitions. Section 472 fixes who may file, when, the route from Governor to President, the handling of co-convicts, the Central Government's recommendation period, a 48-hour communication rule and a finality clause.
• s.473(1)–(4) — Identical to s.432(1)–(4) CrPC.
• s.473(5) proviso — Expanded. The in-jail condition for a petition applied to a sentence "passed on a male person above the age of eighteen years"; it now applies to "a person above the age of eighteen years".
• s.473(6)–(7) — Minor edit. "this Code" becomes "this Sanhita"; "section 433" becomes "section 474".
• s.474 — Modified. "for any other punishment provided by the Indian Penal Code" becomes "for imprisonment for life". "not exceeding fourteen years or for fine" becomes "not less than seven years". Two new clauses cover sentences of seven years or more (to not less than three years) and below seven years (to fine). The rigorous-to-simple clause drops "or for fine". The separate simple-imprisonment-to-fine clause is gone.
• s.475 — Minor edit. Same words as s.433A, with "section 473" and "section 474" for "section 432" and "section 433".
• s.476 — Minor edit. Same words as s.434, with the new cross-references.
• s.477(1) — Modified. "except after consultation with the Central Government" becomes "except after concurrence with the Central Government". Clause (a) drops the reference to the Delhi Special Police Establishment and reads "investigated by any agency empowered to make investigation into an offence under any Central Act other than this Sanhita". The heading changes to "State Government to act after concurrence with Central Government in certain cases".
• s.477(2) — Identical to s.435(2): a State order on concurrent sentences that include offences on Union matters takes effect only if the Central Government makes a matching order.

Statutory text (relevant extracts)

Section 472(1) BNSS — extract (Gazette):

A convict under the sentence of death or his legal heir or any other relative may, if he has not already submitted a petition for mercy, file a mercy petition before the President of India under article 72 or the Governor of the State under article 161 of the Constitution within a period of thirty days from the date on which the Superintendent of the jail,— …

Section 472(7) BNSS — full text (Gazette):

No appeal shall lie in any Court against the order of the President or of the Governor made under article 72 or article 161 of the Constitution and it shall be final, and any question as to the arriving of the decision by the President or the Governor shall not be inquired into in any Court.

Section 433(a)–(b) CrPC and Section 474(a)–(b) BNSS — extracts:

CrPC: (a) a sentence of death, for any other punishment provided by the Indian Penal Code; (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;

BNSS: (a) a sentence of death, for imprisonment for life; (b) a sentence of imprisonment for life, for imprisonment for a term not less than seven years;

The s.472 timetable, step by step

Three gaps are visible on the face of the section. First, s.472(3) does not say from what date the co-convicts' sixty days run. Second, no period is fixed for the Governor's or the President's own decision. Third, s.472(1) says "may", and nothing in the section states the consequence of filing after thirty days. On a reading, the thirty days is a timetable for filing rather than a bar on the President's or Governor's constitutional power, which derives from Articles 72 and 161, not from the BNSS.

Finality and the courts: s.472(7)

Section 472(7) does three things: it bars an appeal, declares the order "final", and says "any question as to the arriving of the decision" shall not be inquired into in any Court. The pre-2024 judgments below held that the constitutional clemency power is open to limited judicial review (Maru Ram, finding 9; Epuru Sudhakar, grounds (a)–(e)). They also held that undue delay in deciding a petition can found commutation under Article 32 (Shatrughan Chauhan, paras 38 and 42). Those decisions rest on the Constitution, not on the CrPC. Whether a statutory clause can limit review under Articles 32 and 226 is a constitutional question the text of s.472(7) does not settle, and no judgment applying the sub-section is cited here.

Remission and suspension: s.473

The appropriate Government may suspend a sentence or remit all or part of it, with or without conditions the person accepts (s.473(1)). On an application it "may require" the presiding Judge of the convicting or confirming Court to give a reasoned opinion with the record (s.473(2)). It may cancel for breach of a condition, after which the person may be arrested without warrant to serve the unexpired portion (s.473(3)). Petitions from persons above eighteen serving a sentence other than fine are entertained only if the person is in jail — presented through the officer in charge of the jail, or with a declaration that the person is in jail (s.473(5) proviso). The "appropriate Government" is the Central Government for offences against laws on Union matters and otherwise the State where the offender was sentenced (s.473(7)).

Commutation: the s.474 ladder

Commutation under s.474, as under s.433, is "without the consent of the person sentenced". The BNSS ladder sets floors ("not less than") where the CrPC set a ceiling ("not exceeding").

The fourteen-year rule: s.475

Section 475 opens "Notwithstanding anything contained in section 473". Where a life sentence is imposed for an offence for which death is one of the punishments, or a death sentence is commuted under s.474 into life imprisonment, the person "shall not be released from prison unless he had served at least fourteen years of imprisonment". Section 474(b) now permits commuting life imprisonment to a term "not less than seven years". The two are not expressly reconciled in the text. On a reading, s.475 still bars release before fourteen years for the two categories it names. Maru Ram (below) read the identical words of s.433A as nullifying ss.432 and 433 "wholly or partially" for those categories.

The Central Government's role: ss.476 and 477

In death-sentence cases the Central Government may exercise the State's ss.473–474 powers concurrently (s.476). Section 477(1) requires the Centre's concurrence before a State remits or commutes a sentence for an offence in three categories. They are: (a) one investigated by any agency empowered to investigate an offence under a Central Act other than the Sanhita; (b) one involving misappropriation or destruction of, or damage to, Central Government property; and (c) one committed by a Central Government servant acting or purporting to act in the discharge of official duty.

What this means in practice

Advocates for a death-row convict. Diarise thirty days from the date the Superintendent informs the client (s.472(1)); keep proof of that date. If the Governor route is used, file before the President within sixty days of the Governor's rejection or disposal (s.472(2)). With co-convicts, coordinate filings: the Superintendent must ensure each files within sixty days, and the petitions are decided together (ss.472(3), (5)). If the Central Government's sixty days under s.472(4) pass, on a reading the delay jurisprudence in Shatrughan Chauhan and Kokade is the authority a writ petition would rely on; those judgments turn on undue and unexplained delay, not on a missed statutory period.

Jail Superintendents. Section 472 puts these duties on you: inform the convict (the trigger in s.472(1)); ensure co-convicts file, and if a co-convict files nothing, send the names, addresses, copy of the case record and other details to the Central or State Government (s.472(3)); and the Central Government's sixty days under s.472(4) run from receipt of the jail's records. The forty-eight-hour rule in s.472(6) binds the Central Government, which must communicate the President's order to the State Home Department and to you.

State Governments. In the three s.477(1) categories, a remission or commutation order needs the Central Government's concurrence before it is made. Remission applications should follow s.473(2): Sriharan held that remission under the identical s.432(1) cannot be suo motu and that the s.432(2) procedure is mandatory (para 143).

Life convicts seeking remission. Count actual imprisonment against the fourteen-year floor in s.475 if the life sentence was for an offence punishable with death or was a commuted death sentence. Petitions must come through the jail (s.473(5) proviso).

Judgments that still matter

Maru Ram v. Union of India, [1981] 1 S.C.R. 1196 (1980 INSC 212), 11 November 1980, five judges; judgment delivered by V.R. Krishna Iyer J. for Y.V. Chandrachud C.J., P.N. Bhagwati J. and himself, with separate concurring opinions of Fazal Ali and Koshal JJ. (Koshal J. agreeing with findings (2) to (11), (13) and (14) and the first sentence of finding (1)). The findings upheld s.433A ("We repulse all the thrusts on the vires of s. 433A", finding 1). They held that ss.432 and 433 "are not a manifestation of Articles 72 and 161" but a separate power, which s.433A may nullify "wholly or partially" without detracting from the constitutional power (finding 4). The power under Articles 72 and 161 is exercised on the advice of the appropriate Government (finding 8). No consideration for exercising it "can be wholly irrelevant, irrational, discriminatory or mala fide" (finding 9). Bearing: s.475 repeats s.433A, and s.472 regulates petitions under Articles 72 and 161, which on this reasoning remain a distinct constitutional power.

Epuru Sudhakar v. Govt. of A.P., [2006] Supp. 7 S.C.R. 81 (2006 INSC 695), 11 October 2006 (Arijit Pasayat and S.H. Kapadia JJ.; judgment of Pasayat J., with a concurring opinion of Kapadia J.). The Court held that orders under Articles 72 and 161 can be impugned on the grounds that the order was passed without application of mind, is mala fide, rests on extraneous or wholly irrelevant considerations, kept relevant materials out of consideration, or suffers from arbitrariness. It set aside a remission granted by the State because "irrelevant and extraneous materials entered into the decision making process". Bearing: these are the grounds s.472(7)'s bar on inquiring into "the arriving of the decision" will be read against.

Shatrughan Chauhan v. Union of India, [2014] 1 S.C.R. 609 (2014 INSC 46), 21 January 2014, three judges (P. Sathasivam C.J.I., Ranjan Gogoi and Shiva Kirti Singh JJ.). The Court held that "undue long delay in execution of sentence of death will entitle the condemned prisoner to approach this Court under Article 32" (para 38). Undue, unexplained and inordinate delay due to pendency of mercy petitions allows commutation to life, "only after satisfying that the delay was not caused at the instance of the accused himself" (para 42). Its guidelines include that "a minimum period of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution" (para 259). It described the Article 72/161 power as "a constitutional obligation and not a mere prerogative" (para 263). Bearing: on a reading, s.472's periods apply to the stages at which this judgment found delay.

Union of India v. V. Sriharan @ Murugan, [2015] 14 S.C.R. 613 (2015 INSC 886), 2 December 2015, five judges. The opinion of F.M.I. Kalifulla J. held that in the three situations in s.435(1) the Central Government "will assume primacy" and consultation "should in reality be held as the requirement of 'Concurrence'" (para 161). The separate opinion of U.U. Lalit J., with which A.M. Sapre J. agreed, gave the same answer to that question. It also recorded conformity with Kalifulla J.'s conclusions except on one sub-question (para 77). The Kalifulla opinion also held that remission under s.432(1) cannot be suo motu (para 143). Bearing: s.477 writes "concurrence" into the text; s.473(1)–(2) repeat the words construed in para 143.

State of Maharashtra v. Pradeep Yashwant Kokade, [2024] 12 S.C.R. 574 (2024 INSC 947), 9 December 2024, three judges (Abhay S. Oka, Ahsanuddin Amanullah and Augustine George Masih JJ.; judgment of Oka J.). From the filing of the mercy petitions to the execution warrant, "three years, eleven months and fourteen days" passed (para 35). The Court upheld the High Court's commutation of the death sentences to thirty-five years. It held that "An inordinate and unexplained delay caused by circumstances beyond the prisoners' control mandates the commutation of a death sentence" (para 42(iii)). It directed States and Union Territories to set up a dedicated cell for mercy petitions (para 43). The judgment does not refer to s.472 BNSS. Bearing: its directions operate alongside the s.472 timetable.

Which law applies to your case

The BNSS came into force on 1 July 2024 (S.O. 848(E), 23 February 2024). Articles 72 and 161 are unaffected by the change of Code. Under s.531(2)(a), a pending "application" is continued under the CrPC "as if this Sanhita had not come into force". Whether a mercy petition pending before the President or Governor on that date is such an application is not answered by the text. Under s.531(2)(b), sentences passed under the CrPC and in force on that date are deemed passed under the corresponding BNSS provisions. On a reading, remission and commutation of such sentences are therefore dealt with under ss.473–477. See which law applies to an offence before 1 July 2024.

Frequently Asked Questions

How long does a death-row convict have to file a mercy petition under the BNSS?

Section 472(1) BNSS says the convict, his legal heir or any other relative "may" file within thirty days from the date the jail Superintendent informs him that the Supreme Court has dismissed the appeal, review or special leave, or informs him of the High Court's confirmation of the death sentence once the time to approach the Supreme Court has expired. The section does not say what happens to a petition filed later. The CrPC had no equivalent time limit.

What happens after the Governor rejects a mercy petition?

Under Section 472(2) BNSS, a petition may first be made to the Governor under Article 161 and, on its rejection or disposal, "shall be made to the President within a period of sixty days" from that rejection or disposal. The President's power under Article 72(1)(c) extends to all cases where the sentence is a sentence of death.

Is there a time limit for the President to decide a mercy petition?

Section 472 fixes no period for the President's own decision. It requires the Central Government to make its recommendation within sixty days from receiving the State Government's comments and the jail records (s.472(4)), and to communicate the President's order to the State Home Department and the jail within forty-eight hours of receiving it (s.472(6)). Petitions of co-convicts in the same case are decided together (s.472(5)).

Can a court review the decision on a mercy petition after Section 472(7)?

Section 472(7) BNSS says no appeal lies against the order of the President or Governor, that it is final, and that "any question as to the arriving of the decision" shall not be inquired into in any Court. Before the BNSS, the Supreme Court held the Article 72 and 161 power open to limited review, for example on grounds of non-application of mind, mala fides or extraneous considerations (Epuru Sudhakar, 2006). This guide cites no judgment applying Section 472(7), so how the two fit together is not settled by any authority cited here.

How has the commutation ladder changed under Section 474 BNSS?

Under Section 433 CrPC a death sentence could be commuted to any other punishment in the Indian Penal Code, and life imprisonment to a term not exceeding fourteen years or to fine. Section 474 BNSS allows death to be commuted only to imprisonment for life, life imprisonment to a term not less than seven years, a sentence of seven years or more to a term not less than three years, and a sentence below seven years to fine.

Does the fourteen-year rule for life convicts survive in the BNSS?

Yes. Section 475 BNSS repeats Section 433A CrPC: where life imprisonment is imposed for an offence for which death is one of the punishments, or a death sentence is commuted to life under Section 474, the person "shall not be released from prison unless he had served at least fourteen years of imprisonment". The only change is the cross-references to Sections 473 and 474.

What does the change from consultation to concurrence in Section 477 BNSS mean?

Section 477(1) BNSS says a State Government may not remit or commute a sentence in three listed kinds of case except "after concurrence with the Central Government"; Section 435(1) CrPC said "after consultation". In V. Sriharan (2015) the Supreme Court had already held that consultation in Section 435(1) should in reality be read as concurrence, with primacy to the Central Government's opinion. The BNSS writes that result into the text.

Does delay in deciding a mercy petition help the convict?

It can. In Shatrughan Chauhan (2014) the Supreme Court held that undue, unexplained and inordinate delay in execution due to pendency of mercy petitions allows it to commute the death sentence under Article 32, provided the delay was not caused by the accused. In Pradeep Yashwant Kokade (2024) it upheld commutation to thirty-five years where nearly four years passed from the filing of the mercy petitions to the execution warrant.

Related

• Section 302 IPC vs Section 103 BNS — murder
• Undertrial release after one-third — BNSS 479 vs CrPC 436A
• Victim rights and compensation under the new laws
• CrPC to BNSS — section mapping
• Offence before 1 July 2024 — which law applies
• Sections 432–435 CrPC vs Sections 473–477 BNSS — Suspension, Remission and Commutation of Sentences

Sources

Acts and sections read (primary text):

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette of India, CG-DL-E-25122023-250884): ss.472–477, 531(2)(a)–(b); commencement footnote to s.1 in the official text.
• Code of Criminal Procedure, 1973 (original-PDF text, with amendment footnotes): ss.432, 433, 433A, 434, 435.
• Constitution of India: Articles 72 and 161.

Judgments read (Supreme Court, full text in the Veritect judgment corpus):

• Maru Ram v. Union of India, [1981] 1 S.C.R. 1196 — 1981_1_1196_1261_EN.md
• Epuru Sudhakar v. Govt. of A.P., [2006] Supp. 7 S.C.R. 81 — S_2006_7_81_117_EN.md
• Shatrughan Chauhan v. Union of India, [2014] 1 S.C.R. 609 — 2014_1_609_746_EN.md
• Union of India v. V. Sriharan @ Murugan, [2015] 14 S.C.R. 613 — 2015_14_613_847_EN.md
• State of Maharashtra v. Pradeep Yashwant Kokade, [2024] 12 S.C.R. 574 — 2024_12_574_616_EN.md

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.