Law & Policy
Within Thirty Days: The Clocks Section 472 Starts, and the Delay It Leaves Untimed
15 October 2026 · 19 min read
A criminal case is a sequence of decisions, and for almost every one of them the law supplies a forum, a standard and a correction. Cognizance, charge, conviction, sentence, appeal, revision: each is taken by an authority the statute identifies, on material the statute describes, subject to review by a court the statute names. The decision at the end of that sequence is not like the others. The power to pardon, reprieve, respite, remit or commute is conferred by Articles 72 and 161 of the Constitution directly, in terms that name no condition, no procedure and no period. The courts have supplied a good deal of the procedure. They have consistently declined to supply the period.
The Bharatiya Nagarik Suraksha Sanhita, 2023 has nonetheless written a procedure around it. Section 472 is the first provision of Indian criminal procedure to do so. The Code of Criminal Procedure, 1973 contained nothing comparable; the word "mercy" does not appear in that Code at all, and what governed the processing of a mercy petition until 1 July 2024 was a combination of State prison manuals, executive instructions of the Ministry of Home Affairs, and the directions of the Supreme Court.
A statute is a better place for that material than a manual. The question this note takes up is a narrower one: whose conduct the section actually regulates.
What the section says
Section 472 carries the marginal heading "Mercy petition in death sentence cases". Sub-section (1) provides that a convict under 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 under Article 72 or the Governor under Article 161,
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.
Sub-section (2) provides that the petition "may, initially be made to the Governor and on its rejection or disposal by the Governor, the petition shall be made to the President within a period of sixty days from the date of rejection or disposal of such petition."
Sub-section (3) requires the Superintendent of the jail to "ensure, that every convict, in case there are more than one convict in a case, also files the mercy petition within a period of sixty days", and on non-receipt of such a petition from the other convicts, to send their names, addresses, a copy of the record and all other details of the case to the Central or State Government "for consideration along with the said mercy petition."
Sub-section (4) requires the Central Government, on receipt of a mercy petition, to seek the comments of the State Government, to consider the petition with the records, and to make recommendations to the President "as expeditiously as possible, within a period of sixty days from the date of receipt of comments of the State Government and records from Superintendent of the Jail."
Sub-section (5) provides that the President "may, consider, decide and dispose of the mercy petition and, in case there are more than one convict in a case, the petitions shall be decided by the President together in the interests of justice."
Sub-section (6) requires the Central Government, on receipt of the President's order, to communicate it within forty-eight hours "to the Home Department of the State Government and the Superintendent of the jail or officer in charge of the jail."
Sub-section (7) reads:
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.
The sections around it
Section 472 sits at the head of a group that is otherwise inherited. Sections 473 to 477 carry forward sections 432 to 435 of the 1973 Code in substantially the same words — the power of the appropriate Government to suspend or remit, the power to commute, the fourteen-year restriction where a life sentence replaces a death sentence, the Central Government's concurrent power in death sentence cases, and the requirement of concurrence in Union-related matters. The drafting did touch them. The proviso to section 473(5) now applies to "a person above the age of eighteen years" where section 432(5) of the Code said "a male person".
One change in the group is substantive and runs the other way from section 472. Section 433(a) of the Code allowed the appropriate Government to commute a sentence of death "for any other punishment provided by the Indian Penal Code"; section 474(a) allows it to commute a sentence of death "for imprisonment for life", and nothing else. Section 433(b) allowed a life sentence to be commuted to "a term not exceeding fourteen years or for fine"; section 474(b) requires "a term not less than seven years". The statutory power to commute has been narrowed at the same time as the constitutional power has been given a procedure. These are two different powers, and nothing turns on reading them together; it is worth recording only because it shows that this group of sections was examined, clause by clause, by whoever drafted it.
Who the clocks bind
The section contains five periods of time. Sorted by the person they operate against, they distribute as follows.
| Period | Who it binds | What starts it |
|---|---|---|
| Thirty days to file (sub-s. 1) | The convict, or his relative | The Superintendent informing him of the dismissal or the confirmation |
| Sixty days to petition the President (sub-s. 2) | The convict | Rejection or disposal by the Governor |
| Sixty days for a co-convict to file (sub-s. 3) | The Superintendent, who must "ensure" the filing | Not stated |
| Sixty days to recommend (sub-s. 4) | The Central Government | Receipt of the State Government's comments and the jail records |
| Forty-eight hours to communicate (sub-s. 6) | The Central Government | Receipt of the President's order |
Now the events the section mentions and does not time. The Superintendent is not given a period within which to inform the convict of the dismissal or confirmation, although that act starts the convict's thirty days. The State Government is not given a period within which to furnish the comments the Central Government must seek, although their receipt starts the Central Government's sixty days. Nothing is said about when the petition is to be placed before the Governor, or what the State Government is to do with it in the meantime. And the Governor and the President are given no period at all: the verb in sub-section (5) is "may".
So of the five periods, three run against the convict and the jail. One runs against the Central Government from a date that no provision in the Sanhita fixes. One is a forty-eight-hour period for an intimation that goes to two offices, neither of which is the convict's.
The deadline the section could not impose
The absence of a period for the Governor and the President is not an oversight, and it is not a defect. It follows from where the power comes from. Articles 72 and 161 confer it directly and in unqualified terms, and neither article contemplates a period within which it is to be exercised.
In Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, decided on 21 January 2014, the Court put it in a sentence:
Though no time limit can be fixed for the Governor and the President, it is the duty of the executive to expedite the matter at every stage, viz., calling for the records, orders and documents filed in the court, preparation of the note for approval of the Minister concerned, and the ultimate decision of the constitutional authorities.
The sentence has two halves, and they do different work. The first explains why section 472 contains no period for the constitutional authorities. The second identifies where the duty to be quick actually lies — calling for the records, obtaining them, preparing the note, carrying the file up. Those are the steps the section leaves untimed.
That is the structural point. The Sanhita has imposed three of its periods on the convict and the jail, has imposed one on the Central Government running from an event nobody is obliged to bring about, and has left the chain of administrative steps between the jail and the Secretariat exactly as it found it.
Where the delay has been found to be
This is not a speculative criticism, because the question was examined by the Supreme Court after section 472 came into force.
In State of Maharashtra v. Pradeep Yashwant Kokade, 2024 INSC 947, decided on 9 December 2024 in Criminal Appeals Nos. 2831 and 2832 of 2023, the Court was asked to restore death sentences that the High Court had commuted to a fixed term of thirty-five years on the ground of delay. It declined, and upheld the commutation. On the facts it recorded that the time taken from the filing of the mercy petitions before the Governor to the issue of execution warrants by the Sessions Court was "three years, eleven months and fourteen days", and that even excluding the time actually taken by the constitutional functionaries to decide the petitions, the delay was more than three years. Its finding on responsibility was express:
Thus, on facts, it can be said that there was undue and unexplained delay at all three stages. The undue delays have occurred in placing the mercy petitions before the Hon'ble Governor for the State and the Hon'ble President of India. In the facts of the case, the inordinate delay is on the part of the executive and not on the part of the Constitutional functionaries.
The delay, in other words, was located in the steps between the jail and the Secretariat — the steps section 472 does not mention. Having found that, the Court then supplied the machinery. It directed every State Government and Union Territory to constitute a dedicated cell in the Home or Prison Department responsible for the prompt processing of mercy petitions, with a nominated officer-in-charge, an officer of the Law and Judiciary Department attached to it, and its address and email notified to every prison. It listed the information the Superintendent must call for from the police on receiving a petition — antecedents, family, economic condition, date of arrest, period as an undertrial, date of the charge-sheet — and the documents the jail must then forward, down to English translations of the first information report and the notes of evidence. It directed that copies of the mercy petitions be sent at once to the Secretariat of the Governor or the President so that the Secretariat could begin its own work, that correspondence be by email where confidentiality permits, and that the State Governments issue executive orders containing guidelines in terms of the judgment, reporting compliance within three months.
Section 472 had been in force for five months and eight days when that judgment was delivered. The Sanhita was brought into force on 1 July 2024, save for the First Schedule entry relating to section 106(2). The judgment does not refer to section 472.
A limit without a consequence
The thirty days in sub-section (1) raise a different question. The section does not say what follows if the convict files on the thirty-first day, and it is difficult to see what it could have said. The power the petition invokes is conferred by Articles 72 and 161 on their own terms. A statutory period cannot make a petition to the President incompetent, because the Constitution does not make the President's jurisdiction depend on the Sanhita; and if the petition is not rendered incompetent, the period has no consequence attached to it at all.
The same difficulty attends sub-section (2). Its language is mandatory — once the Governor has rejected or disposed of the petition, "the petition shall be made to the President within a period of sixty days". A provision in that form imposes on the convict a duty to ask for mercy, which is not a thing a statute can usefully require; and if he does not ask, nothing in the section follows.
Sub-section (3) is the clearest instance. It makes the Superintendent of the jail responsible for ensuring that a co-convict "also files the mercy petition within a period of sixty days". A petition for mercy is a request; a jail officer cannot make another man ask for his life, and the sub-section does not say what he is to do if the man declines. What it does say is that on non-receipt of a petition, the Superintendent shall send that convict's name, address and case records to the Government "for consideration along with the said mercy petition" — so the file of a man who has asked for nothing goes up with the file of a man who has. Read with sub-section (5), which requires the petitions of multiple convicts in one case to be "decided by the President together in the interests of justice", the purpose is intelligible: a sentence should not turn on which of two co-convicts was the better correspondent. Describing the mechanism as a duty on the convict, enforced by the Superintendent, is what makes it awkward. The same result would follow from a provision requiring the records of every co-convict to be placed before the authority with any petition filed in the case.
Sub-section (7)
The last sub-section does three things, and only the third is new.
"No appeal shall lie in any Court against the order of the President or of the Governor" forbids something that was never available. An order under Article 72 or Article 161 is not the order of a court or tribunal; no appeal has ever lain against it, and no statute is needed to say so.
"and it shall be final" is a finality clause of the ordinary kind, and it is addressed to courts exercising statutory jurisdiction. The jurisdictions that have in fact been exercised in this field are those conferred by Articles 32 and 226, which section 472 does not mention.
The third limb is the one to read closely: "and any question as to the arriving of the decision by the President or the Governor shall not be inquired into in any Court." That is addressed to a specific and well-established line of authority. In Epuru Sudhakar v. Government of Andhra Pradesh, (2006) 8 SCC 161, the Court set out the grounds on which an order under Article 72 or Article 161 may be impugned: that it was passed without application of mind; that it is mala fide; that it was passed on extraneous or wholly irrelevant considerations; that relevant materials were kept out of consideration; and that it suffers from arbitrariness. Every one of those is a question as to how the decision was arrived at. The rationale was stated in Shatrughan Chauhan as the settled position that the power under Article 72 or 161 "is per se above judicial review but the manner of exercise of power is certainly subject to judicial review", and in Kehar Singh v. Union of India, (1989) 1 SCC 204, the Court had already observed that there was sufficient indication in the terms of Article 72 itself and that specific guidelines need not be spelt out.
Three things about the limb are worth recording without resolving.
The first is its subject. The order it speaks of is one "made under article 72 or article 161 of the Constitution". A provision of the Sanhita is being used to attach a consequence — non-reviewability — to the exercise of a power the Sanhita does not confer and cannot condition.
The second is what it leaves untouched on its own words. The ground on which the Court acted in Shatrughan Chauhan and in Kokade was delay: not how the decision was arrived at, but how long the file took to reach the person who was to arrive at it, and what the waiting did to the prisoner. That is not naturally a "question as to the arriving of the decision", and in Kokade the Court expressly located the delay in the executive rather than in the constitutional functionaries. A sub-section whose words track the Epuru Sudhakar grounds does not, on its face, reach the line of cases that has actually produced commutations.
The third is the forum. The limb says the question "shall not be inquired into in any Court". The relief sought in these cases has been sought under Article 32, which Shatrughan Chauhan identified as the source of the Court's power to commute on the ground of delay, and under Article 226. Whether an ordinary enactment can direct that a question not be inquired into in the exercise of those jurisdictions is not a question the text of section 472 answers, and it is not one this note offers an opinion on. It is enough to note that the sub-section will have to be construed before it can be applied, and that the construction will not be found in the section.
What the section does not provide for next
Two gaps are visible on the face of the Sanhita once the order has been made.
The first is communication. Sub-section (6) requires the order to be communicated within forty-eight hours to the Home Department of the State Government and to the Superintendent of the jail. It does not require that the convict be told, in writing or otherwise, or that his family be told, or that he be given a copy. Shatrughan Chauhan dealt with all three: it directed that rejection by the Governor and by the President be communicated to the convict and his family in writing, held that death convicts are entitled as of right to a copy of the rejection, and directed Superintendents to intimate the rejection to the nearest legal aid centre as well as to the convict. None of that is in section 472. The forty-eight hours bind the office that already has the order to tell two offices that need it; the person whose life the order decides is not named in the sub-section.
The second is time to act. Shatrughan Chauhan directed a minimum of fourteen days between the receipt of the communication of rejection and the scheduled date of execution, and gave its reasons — the prisoner's preparation, a last meeting with his family, and the practical point that without notice "the prisoners' right to avail of judicial remedies will be thwarted". Kokade directed a gap of fifteen clear days between the convict's receipt of the warrant and the execution. The Sanhita contains no such period. Section 455 postpones the execution of a death sentence only during the proceedings it names — the time allowed for an appeal to the Supreme Court under Article 134(1)(a) or (b), an application for a certificate under Article 132 or 134(1)(c), and such period as the High Court thinks sufficient to enable a petition for special leave to be presented. There is no provision postponing execution pending a mercy petition, and none fixing an interval after one is rejected. The word "mercy" appears in the Sanhita only in section 472 and in the entry for that section in its table of contents; no other provision of the enactment takes any notice of a mercy petition at all.
It is worth adding what the section does supply, because two of its provisions answer real problems. Sub-section (4) converts the "reasonable and rational time" that Shatrughan Chauhan asked of the Ministry of Home Affairs into sixty days, which is what a statute can usefully do with an exhortation. And sub-sections (3) and (5), read together, address the case of multiple convicts in one case, which the 2014 guidelines did not. Both are additions, and neither was available before 1 July 2024.
What is left to be supplied elsewhere
Section 472 is a statutory peg for a procedure that had none, and the two things it adds are worth having. What it has not done is impose discipline where the record shows discipline is needed. The constitutional decision could not be clocked, and the section rightly does not try. The administrative passage to that decision could have been clocked in every one of its stages, and the section times one of them, from a starting point it does not require anyone to reach.
The consequence is not that the machinery is missing. It is that the machinery is in a judgment rather than in the Sanhita: constituted by direction in December 2024, resting on compliance reported to a Registrar, and exposed to the same difficulty the Court gave in 2014 as its reason for framing guidelines at all, which was the disparity between States in implementing the law that already existed. A Sanhita that found room for the forty-eight hours in which one department tells another what has been decided had room for the period within which a State is to furnish its comments, the period within which a petition is to be placed before the authority, the obligation to tell the convict what the order was, and the interval between that telling and the execution. Those four provisions would not touch the clemency power at all. They are about what the administration does with a file.
Until they are enacted, the only durable statement of them is a direction of the Supreme Court — which is the position section 472 was presumably meant to improve on.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.