The Bharatiya Nagarik Suraksha Sanhita Bill (BNSS) 2023 seeks to prohibit appeals against any order made by the President in exercise of the power to grant pardon or commute a death sentence under Article 72 of the Constitution, eliminating judicial review of decisions made by the President on mercy petitions of death row convicts. The courts are also not permitted to examine the President's decision's justifications.
“No appeal shall lie in any court against order of the President made under Article 72 of the Constitution and it shall be final, and any question as to arriving of the decision by the President shall not be enquired into in any court,” states Section 473, an addition to BNSS Bill, which is proposed to replace the CrPC.
In some high-profile death row cases, such as the graveyard shift hearings by the SC hours before the execution of death warrants for Yakub Memon, a 1991 Mumbai blasts convict, in 2015, and the four Nirbhaya case convicts, in 2020, the use of this eleventh-hour judicial remedy was marked by intense drama. Even though the SC refused to stay the executions in both instances, the extraordinary hearings were seen by death row critics and rights activists as a “fair” opportunity for the convicts to exhaust all possible judicial remedies.
Others, though, felt that the sessions at midnight were verging on judicial activism. It was believed that the additional judicial remedy was more of a cunning move to postpone the execution of the death sentence that had already been upheld by the highest court.