Supreme Court of India
Vasanta Sampat Dupare vs Union Of India on 25 August, 2025
Author: Vikram Nath
Bench: Sanjay Karol, Vikram Nath
2025 INSC 1043
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 371 OF 2023
VASANTA SAMPAT DUPARE …PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. …RESPONDENT(S)
JUDGMENT
VIKRAM NATH, J.
1. The majesty of our Constitution lies not in the
might of the State but in its restraint. When the
Court contemplates the ultimate punishment,
i.e. the Capital Punishment, it enters a domain
where justice must be tempered by conscience
and guided by the unwavering promises of
equality, dignity and fair procedure. A
Constitution that proclaims liberty and dignity as
its first commitments cannot permit the State to
Signature Not Verified end a human life unless every safeguard of
Digitally signed by
fairness has been honoured and every civilising
SONIA BHASIN
Date: 2025.08.26
16:55:33 IST
Reason:
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 1 of 79
impulse of the law has been heard. The question
is never only what penalty a crime might merit, it
is first whether the machinery of the Republic
has honoured every safeguard that makes
punishment lawful in a constitutional
democracy. In the narrow space between guilt
and the gallows, a robust Constitution demands
that we pause, look again, and ask whether the
process itself has measured up to the high bar
that humanity and the rule of law together set.
2. The present writ petition filed under Article 32 of
the Constitution of India, assails the continuing
validity of the sentence of death affirmed against
the Petitioner, and seeks its reconsideration in
the light of subsequent legislative and judicial
developments, particularly with reference to the
guidelines laid down in the case of Manoj and
others v. State of Madhya Pradesh1.
3. The facts giving rise to this writ petition are as
follows:
3.1 The prosecution case in brief is that on
03.04.2008, the Petitioner allegedly lured a
four-year-old girl away from her home in1
(2023) 2 SCC 353WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 2 of 79
Wadi, Nagpur, transported her to a secluded
spot, thereafter, sexually assaulted and
strangled her to death and then attempted to
conceal the body among nearby shrubs. An
FIR (Crime No. 71 of 2008) was registered at
Wadi Police Station the same day. The
Petitioner was arrested on 04.04.2008, and a
charge-sheet was filed for offences under
Sections 363, 367, 376(2)(f), 302 and 201 of
the Indian Penal Code, 18602.
3.2 On 29.09.2010 the Additional Sessions
Judge, Nagpur, in Sessions Trial No. 252 of
20083 convicted the Petitioner under
Sections 363, 367, 376(2)(f), 302 and 201 of
the IPC and, on the same day, imposed the
death sentence on him. During the original
trial, the Petitioner, who was unable to afford
private counsel, was represented by legal-aid
counsel whose absence on crucial dates
resulted in four material witnesses
remaining un-cross-examined.
2
IPC
3
Trial Court
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 3 of 79
3.3 In confirmation proceedings the High Court
of Bombay, Nagpur Bench4, by judgment
dated 24.03.2011, set aside the conviction
and sentence on the ground that the
Petitioner had been denied an effective
defence, and remanded the matter for the
limited purpose of cross-examining the said
witnesses.
3.4 Upon remand, the same legal-aid counsel
represented the Petitioner. The four
witnesses were cross-examined, but counsel
was absent at the hearing on sentence. By
judgment dated 23.02.2012, the Trial Court
again convicted the Petitioner of the
aforesaid offences and re-imposed the
sentence of death, recording the Petitioner’s
age being around 45 years at the time of the
incident and family dependants as mitigating
circumstances.
3.5 On 27.03.2012, the High Court, in Criminal
Appeal No. 112 of 2012 and Confirmation
Case No. 1 of 2012, affirmed both conviction
and sentence, relying principally on the
4
High Court
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 4 of 79
nature and manner of the crime and finding
no sufficient mitigating factors.
3.6 This Court, by judgment dated 26.11.2014 in
Criminal Appeal Nos. 2486-2487 of 2014,
dismissed the Petitioner’s appeal, and
confirmed the death sentence as the only
mitigation circumstances placed before this
Court at that time were related to the
Petitioner’s youth and the probability of
reformation.
3.7 Review Petition (Crl.) Nos. 637-638 of 2015
was thereafter filed. Pursuant to order dated
31.08.2016, the Petitioner placed limited
additional material regarding his education,
prison activities and disciplinary record. By
judgment dated 03.05.2017, this Court
upheld the earlier decision, observing that
the aggravating circumstances outweighed
the mitigating circumstances adduced.
3.8 A mercy petition under Article 161 of the
Constitution of India was submitted to the
Governor of Maharashtra on 26.12.2017 and
was rejected on 01.02.2022. The rejection
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 5 of 79
was communicated to the Petitioner on
30.03.2022.
3.9 It is argued by the Petitioner that while the
mercy petition was pending, this Court, on
06.10.2017, admitted in Rishi Malhotra v.
Union of India5 challenge to hanging as the
mode of execution which matter remains sub
judice.
3.10 It is further argued that on 29.03.2022, in
Irfan @ Bhayu v. State of Madhya
Pradesh6, this Court highlighted the
necessity of comprehensive mitigation
material in death penalty cases and directed
registration of Suo Motu Writ Petition (Crl.)
No. 1 of 2022 to frame guidelines for
sentencing.
3.11 Meanwhile, it is claimed by the Petitioner
that detailed medical records obtained from
Nagpur Central Jail revealed that the
Petitioner was receiving treatment for major
depressive disorder, psychotic features,
hypertension, chronic frontal-lobe infarct
and cervical myelopathy, with repeated
5
Writ Petition (Crl.) No. 145 of 2017
6
Criminal Appeal Nos. 1667-1668 of 2021
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 6 of 79
prescriptions of antidepressant and
antipsychotic medication. It is further stated
that 3 independent psychiatrists, on the
basis of interview transcripts supplied by the
Petitioner’s legal team in 2017, gave
preliminary opinions indicating intellectual
disability, psychosis and organic brain
pathology.
3.12 It is further argued that on 20.05.2022 this
Court delivered its judgment in Manoj
(supra), formulating practical, time-bound
guidelines obliging Trial Courts and the State
to place extensive mitigation circumstances
on record including psychiatric,
psychological, social-history and jail-
conduct reports. Pursuant to Manoj (supra),
this Court and several High Courts have
consistently called for probation-officer
reports, psychological assessments by
independent institutions, jail-conduct
certificates and access for defence mitigation
investigators in ongoing death-sentence
matters.
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 7 of 79
3.13 Acting on the Manoj (supra) protocol, it is
argued that the Petitioner’s legal team
engaged Mr Swapnil Bhopi, Clinical
Psychologist, who on 17.06.2022, conducted
psychometric testing. The assessment
disclosed a Specific Learning Disability (SLD)
and low intellectual functioning, together
with long-standing trauma and organic brain
injury. A second mercy petition under Article
72 of the Constitution of India, enclosing the
new medical records, Mr. Bhopi’s report, and
supplementary submissions referencing
Manoj (supra) and Suo Motu W.P. (Crl.) No.
1 of 2022, was lodged with the President of
India on 01.07.2022, and was rejected on
10.04.2023, and the intimation reached the
Petitioner on 15.06.2023.
3.14 On 19.09.2022, in Suo Motu W.P. (Crl.) No.
1 of 2022, a Constitution Bench reference
was made to evolve a uniform sentencing
framework and to delineate modalities for
psychological evaluation and collection of
mitigating material, the Petitioner’s case was
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 8 of 79
cited as illustrative of inconsistencies in
existing practice.
3.15 On 02.05.2023, in Rishi Malhotra (Supra),
the Union of India informed this Court of its
proposal to constitute an expert committee
on alternate modes of execution. The petition
remains pending before this Court.
4. In this backdrop, the Petitioner has approached
this Court invoking the extraordinary
jurisdiction of this Court under Article 32 of the
Constitution of India seeking reconsideration of
the death sentence affirmed on 03.05.2017.
5. Mr. Gopal Sankarnarayanan, learned Senior
Counsel for the Petitioner, has advanced the
following submissions:
5.1 It is primarily submitted that the death
sentence was affirmed in 2017 without the
benefit of the sentencing protocol
subsequently mandated in Manoj (supra).
The judgment in Manoj (supra) requires
Trial Courts and the State to place before the
Judge comprehensive mitigation
circumstances, including family history,
socio-economic background, psychiatric and
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 9 of 79
psychological evaluation, jail-conduct data,
and probation reports and to afford the
defence an equal opportunity to rebut. It is
submitted that none of this material was
elicited or considered either by the Trial
Court, the High Court, or this Court in
review, and the Petitioner was denied the
“principled and individualised” sentencing
required by Articles 14 and 21 of the
Constitution of India.
5.2 Furthermore, it is contended that the
evolution of sentencing law in Manoj (supra)
and the pending Constitution Bench
reference in Suo Motu W.P. (Crl.) No. 1 of 2022
together constitute a “substantial change in
law”. Applying the settled rule of beneficial
construction, those developments must
operate retrospectively in favour of a
condemned prisoner whose sentence is yet to
be executed.
5.3 It is further argued that the prison medical
records, 3 independent psychiatric opinions
of 2017, and the detailed psychometric
evaluation of the Petitioner by Clinical
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 10 of 79
Psychologist, Mr. Swapnil Bhopi, on
17.06.2022, now demonstrate that the
Petitioner suffers from a Specific Learning
Disability coupled with low intellectual
functioning; chronic frontal-lobe infarct and
cervical myelopathy; and major depressive
disorder with psychotic features. These
conditions attract the protective umbrella of
the Rights of Persons with Disabilities Act,
20167 and the Mental Healthcare Act, 2017.
However, no reasonable accommodation or
specialised assistance was provided at any
stage of trial or appeal. The absence of such
accommodation is claimed to infringe
Sections 3, 6 and 12 of the RPwD Act, 2016
(equality, dignity and access to justice) and
Section 20 of the Mental Healthcare Act,
2017 (right to equal legal protection). The
Petitioner, therefore, was unrepresented at
the sentencing hearing and was incapable of
articulating mitigating material, with the
result that the death sentence was imposed
on a procedurally defective foundation.
7
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 11 of 79
5.4 It is lastly submitted that Rishi Malhotra
(supra), challenging hanging as the mode of
execution, remains pending before this
Court, and in that matter, the Union has
proposed appointment of an expert
committee to explore alternate modes of
execution. Executing the Petitioner before
the conclusion of those proceedings and the
Constitution Bench reference would expose
the Petitioner to irreversible prejudice.
6. Mr. K.M. Nataraj, learned Additional Solicitor
General, appearing for the Union of India and Dr.
Birendra Saraf, learned Advocate General for the
State of Maharashtra, have rendered the
following submissions:
6.1 It is submitted that the present petition
under Article 32 of the Constitution of India
is an impermissible attempt to reopen the
judgment of this Court dated 26.11.2014,
which has attained finality after dismissal of
Review Petition (Crl.) Nos. 637-638 of 2015,
and later rejection of mercy petitions by both
the Governor and the President of India.
Article 32 of the Constitution of India may be
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 12 of 79
invoked only to redress a subsisting violation
of fundamental rights and a duly
pronounced decision of this Court cannot
itself be characterised as such a violation.
6.2 It is contended that all aggravating and
mitigating factors were exhaustively
examined at three judicial tiers. All three
Courts, i.e. the Trial Court, the High Court
and the Supreme Court, have found that no
mitigating circumstance of weight escaped
scrutiny. Moreover, the Courts have
concluded that the Petitioner being a history-
sheeter with multiple pending cases, is
devoid of remorse, and poses a continuing
menace to society. Those findings were
reaffirmed in review after considering the
additional material later tendered by the
defence.
6.3 It is further submitted that the sentencing
guidelines spelt out in Manoj (supra) are
prospective in operation. They are directed to
Trial Courts going ahead as can be deduced
from reading the judgement, and they do not
authorise the wholesale reopening of cases
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 13 of 79
finally decided years before, especially after
rejection of constitutional clemency. To hold
otherwise would undermine certainty in
criminal justice and flood the system with
stale challenges.
6.4 It is argued that the Petitioner seeks to rely
on medical records and psychological
opinions generated long after conviction.
Even assuming their correctness (which is
denied), such post-hoc material cannot
displace the contemporaneous judicial
finding which were made upon expert
evidence then adduced. The Courts found
that the crime was not committed under
mental stress or emotional disturbance and
that rehabilitation was improbable.
6.5 It is submitted that the RPwD Act, 2016 and
the Mental Healthcare Act, 2017 do not
confer a right to nullify a sentence validly
imposed and confirmed before their
enactment. Nor do they compel retrospective
reopening where, as here, the courts have
already evaluated mental capacity and
rejected it as a mitigating factor.
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 14 of 79
6.6 It is lastly contended that pendency of Rishi
Malhotra (supra) or of the Constitution
Bench reference in Suo Motu W.P. (Crl.) No. 1
of 2022 does not create any legal impediment
on execution of a sentence that has survived
every level of scrutiny. Until those
proceedings culminate in a binding change
in law, the existing framework, including
hanging as the prescribed mode, remains
operative.
7. Having considered the submissions of both the
parties and the material on record before us, the
central question before us is whether, in a
petition under Article 32 of the Constitution of
India, this Court may revisit a death sentence
that stands concluded, having been affirmed on
appeal, declined in review, and followed by the
rejection of mercy petitions, on the strength of
the sentencing framework propounded in Manoj
(supra).
8. Before moving ahead, the reason we are primarily
focusing on the threshold issue framed above is
that the very maintainability of the petition
hinges on it. Unless the doorway of Article 32 of
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 15 of 79
the Constitution of India permits reopening a
death sentence that has attained finality, any
examination of fresh medical evidence, alleged
mitigating factors, or the ramifications of the
pending references in Suo Motu W.P. (Crl.) No. 1
of 2022 and Rishi Malhotra (supra) would be
premature. Those references will be decided on
their own merits in due course and unless and
until they culminate in a binding change of law,
they do not alter the jurisdictional bar the State
is pleading before us. Our task, therefore, is
confined to determining whether Article 32 of the
Constitution of India itself empowers this Court
to revisit a sentence that has attained finality.
9. At the outset, it would be appropriate to
reproduce below the pertinent guidelines laid
down in Manoj (supra) which the Petitioner
invokes as the fulcrum of his claim. The relevant
paras from Manoj (supra) are as follows:
“247. The goal of reformation is ideal, and
what society must strive towards — there
are many references to it peppered in this
Court’s jurisprudence across the decades
— but what is lacking is a concrete
framework that can measure and
evaluate it. Unfortunately, this is mirroredWRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 16 of 79
by the failure to implement prison reforms
of a meaningful kind, which has left the
process of incarceration and prisons in
general, to be a space of limited
potential for systemic reformation. The
goal of reformative punishment requires
systems that actively enable reformation
and rehabilitation, as a result of nuanced
policy-making. As a small step to correct
these skewed results and facilitate better
evaluation of whether there is a
possibility for the accused to be reformed
(beyond vague references to conduct,
family background, etc.), this Court deems
it necessary to frame practical guidelines
for the courts to adopt and implement, till
the legislature and executive, formulate a
coherent framework through legislation.
These guidelines may also offer guidance
or ideas, that such a legislative
framework could benefit from, to
systematically collect and evaluate
information on mitigating circumstances.
Practical guidelines to collect
mitigating circumstances
248. There is urgent need to ensure that
mitigating circumstances are considered
at the trial stage, to avoid slipping into a
retributive response to the brutality of the
crime, as is noticeably the situation in a
majority of cases reaching the appellate
stage.
249. To do this, the trial court must elicit
information from the accused and theWRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 17 of 79
State, both. The State, must—for an
offence carrying capital punishment—at
the appropriate stage, produce material
which is preferably collected beforehand,
before the Sessions Court disclosing
psychiatric and psychological evaluation
of the accused. This will help establish
proximity (in terms of timeline), to the
accused person’s frame of mind (or mental
illness, if any) at the time of committing
the crime and offer guidance on mitigating
factors (1), (5), (6) and (7) spelled out
in Bachan Singh [Bachan Singh v. State
of Punjab, (1980) 2 SCC 684 : 1980 SCC
(Cri) 580] . Even for the other factors of (3)
and (4)—an onus placed squarely on the
State—conducting this form of psychiatric
and psychological evaluation close on the
heels of commission of the offence, will
provide a baseline for the appellate courts
to use for comparison i.e. to evaluate the
progress of the accused towards
reformation, achieved during the
incarceration period.
250. Next, the State, must in a time-bound
manner, collect additional information
pertaining to the accused. An illustrative,
but not exhaustive list is as follows:
(a) Age
(b) Early family background (siblings,
protection of parents, any history of
violence or neglect)WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 18 of 79
(c) Present family background (surviving
family members, whether married, has
children, etc.)
(d) Type and level of education
(e) Socio-economic background (including
conditions of poverty or deprivation, if
any)
(f) Criminal antecedents (details of offence
and whether convicted, sentence served,
if any)
(g) Income and the kind of employment
(whether none, or temporary or
permanent, etc.);
(h) Other factors such as history of
unstable social behaviour, or mental or
psychological ailment(s), alienation of the
individual (with reasons, if any), etc.This information should mandatorily be
available to the trial court, at the
sentencing stage. The accused too, should
be given the same opportunity to produce
evidence in rebuttal, towards establishing
all mitigating circumstances.
251. Lastly, information regarding the
accused’s jail conduct and behaviour,
work done (if any), activities the accused
has involved themselves in, and other
related details should be called for in the
form of a report from the relevant jail
authorities (i.e. Probation and Welfare
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 19 of 79
Officer, Superintendent of Jail, etc.). If the
appeal is heard after a long hiatus from
the trial court’s conviction, or High Court’s
confirmation, as the case may be — a
fresh report (rather than the one used by
the previous court) from the jail authorities
is recommended, for a more exact and
complete understanding of the
contemporaneous progress made by the
accused, in the time elapsed. The jail
authorities must also include a fresh
psychiatric and psychological report
which will further evidence the
reformative progress, and reveal post-
conviction mental illness, if any.”
10. A bare perusal of these guidelines makes it
evident that this Court, in Manoj (supra), sought
to implement the reformative ideal underlying
capital sentencing by replacing ad-hoc
impressions of accused with verifiable data. The
directions oblige the State, rather than the
accused, to place before the trial court, at the
very sentencing stage, a structured dossier
covering psychiatric assessment proximate to the
offence, socio-economic and family history,
educational attainments, prior conduct, and a
contemporaneous report on jail behaviour. By
doing so, this Court intended to prevent
sentencing from defaulting into a purely
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 20 of 79
retributive response to the brutality of the crime
and to supply appellate courts with a baseline
against which genuine progress towards
reformation can later be measured. These
guidelines would serve as an interim, judicially
crafted framework pending comprehensive
legislative or executive action with respect to
capital sentencing. Whether these guidelines can
be enforced to disturb a sentence that has
attained finality, therefore, depends upon the
scope of Article 32 of the Constitution of India,
an issue we shall now proceed to examine.
11. Article 32 of the Constitution of India is the
constitutional conduit through which this Court
may issue “appropriate” writs to secure the
enforcement of Fundamental Rights. Described
in the Constituent Assembly as the “heart and
soul” of the Constitution, it furnishes a direct
route for citizen to this Court whenever a
protected Fundament Right is said to be under
threat. The present petitioner invokes that power
on a narrow but grave premise. Although his
conviction has long since become final, the State
now proposes to end his life through a sentencing
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 21 of 79
process that the Petitioner claims ignored the
safeguards later formalised in Manoj (Supra).
According to the Petitioner, that omission offends
the twin guarantees of equality and due
procedure embodied in Articles 14 and 21 of the
Constitution of India. The question that
consequently arises, and to which we next turn,
is whether Article 32 authorises this Court to
reopen a capital sentencing exercise that has
otherwise attained finality, solely to cure the
procedural lapse the Petitioner identifies.
12. In order to understand the scope of Article 32 of
the Constitution of India, in the present case, we
must consider four principal lines of enquiry to
help shape our determination. Firstly, we must
consider the settled place of Article 32 of the
Constitution of India as a continuing safeguard
where a sentence of death has yet to be carried
out. Secondly, we will examine this Court’s power
and duty to set aside procedural finality when
that course alone can avert a breach of the
guarantees of equality and life. Thirdly, it
becomes necessary to test whether the
sentencing framework articulated in Manoj
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 22 of 79
(supra) has assumed the character of an
indispensable procedural safeguard. Finally, we
must delineate the form and extent of the
corrective relief that may properly be fashioned
under Article 32 of the Constitution of India,
mindful that any order we make must both
protect constitutional rights and preserve the
stability of adjudication.
A. Article 32 jurisdiction in capital cases
constitutes a special constitutional
safeguard
13. The irreversible character of capital punishment
has always obliged this Court to scrutinise
death-sentence cases through a constitutional
lens more gruelling than that applied to any
other category of criminal cases. Because an
execution, once carried out, forecloses every
possibility of correction, Article 32 has been
treated as a continuing safeguard that survives
the ordinary hierarchy of appeal, review and even
mercy.
14. The first clear articulation of this principle is
found in Harbans Singh v State of Uttar
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 23 of 79
Pradesh and others8. Therein, this Court was
confronted with a situation in which one co-
accused had secured commutation while another
had already been executed. If the petitioner alone
were hanged, the result would have been a
blatant disparity. Declining to allow “manifest
injustice” to stand, the Court invoked its powers
under Articles 32 and 136 of the Constitution of
India, and its inherent jurisdiction to commute
the sentence, thereby affirming that
constitutional relief remains available even after
the conventional judicial process has concluded.
The relevant paras for the same have been
reproduced hereunder:
“21. In the facts and circumstances of this
case, this Court would have been justified
in commuting the death sentence imposed
on the petitioner to one of life
imprisonment. As, however, the case of
the petitioner had earlier been considered
by the President of India to whom the
petitioner had presented the petition for
mercy, I am of the opinion that propriety
and decorum require that the matter
should be referred back to the President
instead of this Court deciding to commute8
(1982) 2 SCC 101WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 24 of 79
the death sentence of the petitioner to one
of life imprisonment.
20. Very wide powers have been
conferred on this Court for due and proper
administration of justice. Apart from the
jurisdiction and powers conferred on this
Court under Articles 32 and 136 of the
Constitution, I am of the opinion that this
Court retains and must retain, an inherent
power and jurisdiction for dealing with
any extraordinary situation in the larger
interests of administration of justice and
for preventing manifest injustice being
done. This power must necessarily be
sparingly used only in exceptional
circumstances for furthering the ends of
justice. Having regard to the facts and
circumstances of this case, I am of the
opinion that this is a fit case where this
Court should entertain the present
petition of Harbans Singh and this Court
should interfere.
19. In the circumstances hereinabove
stated, I am of the opinion that it will be
manifestly unjust to allow the death
sentence imposed on the petitioner to be
executed. The question that, however,
troubles me is whether this Court retains
any power and jurisdiction to entertain
and pass any appropriate orders on the
question of sentence imposed on the
petitioner in view of the fact that not only
his special leave petition and review
petition have been dismissed by this
Court but also the further fact that his
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 25 of 79
petition for clemency has also been
rejected by the President.”
15. In Smt. Triveniben v State of Gujarat9, a
Constitution Bench carried the doctrine forward
by holding that supervening circumstances
occurring after conviction, most notably,
inordinate delay in carrying out the sentence,
may so undermine human dignity as to offend
Article 21 of the Constitution of India. The Bench
made it explicit that such violations are
justiciable in an Article 32 petition of the
Constitution of India notwithstanding the finality
of the original judgment in the following terms:
“22. It was contended that the delay in
execution of the sentence will entitle a
prisoner to approach this Court as his
right under Article 21 is being infringed. It
is well settled now that a judgment of
court can never be challenged under
Article 14 or 21 and therefore the
judgment of the court awarding the
sentence of death is not open to challenge
as violating Article 14 or Article 21 as has
been laid down by this Court in Naresh
Shridhar Mirajkar v. State of Maharashtra
[AIR 1967 SC 1 : (1966) 3 SCR 744] and
also in A.R. Antulay v. R.S. Nayak [(1988)
2 SCC 602 : 1988 SCC (Cri) 372] , the only
9
(1989) 1 SCC 678WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 26 of 79
jurisdiction which could be sought to be
exercised by a prisoner for infringement of
his rights can be to challenge the
subsequent events after the final judicial
verdict is pronounced and it is because of
this that on the ground of long or
inordinate delay a condemned prisoner
could approach this Court and that is
what has consistently been held by this
Court. But it will not be open to this Court
in exercise of jurisdiction under Article 32
to go behind or to examine the final verdict
reached by a competent court convicting
and sentencing the condemned prisoner
and even while considering the
circumstances in order to reach a
conclusion as to whether the inordinate
delay coupled with subsequent
circumstances could be held to be
sufficient for coming to a conclusion that
execution of the sentence of death will not
be just and proper. The nature of the
offence, circumstances in which the
offence was committed will have to be
taken as found by the competent court
while finally passing the verdict. It may
also be open to the court to examine or
consider any circumstances after the final
verdict was pronounced if it is considered
relevant. The question of improvement in
the conduct of the prisoner after the final
verdict also cannot be considered for
coming to the conclusion whether the
sentence could be altered on that ground
also.”WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 27 of 79
16. In Navneet Kaur v State (NCT of Delhi) and
another10, this Court demonstrated that once a
safeguard is recognised as integral to Article 21
of the Constitution of India, its benefit must be
afforded retrospectively to prisoners whose
executions are still pending. This Court
accordingly commuted the sentence of accused
Devender Pal Singh Bhullar who was convicted
of a terror offence, on the combined grounds of
inordinate delay and serious mental illness,
notwithstanding an earlier contrary precedent. In
Mohd. Arif alias Ashfaq v Registrar, Supreme
Court of India and others11, a Constitution
Bench ruled that a death-row convict is entitled,
as a matter of right by virtue of Article 21 of the
Constitution of India, to an oral hearing before a
bench of at least three judges at the review stage,
describing capital cases as “a distinct category
altogether”. When a subsequent Constitution
Bench revisited the matter in Mohd. Arif alias
Ashfaq v Registrar, Supreme Court of India
and others12, it clarified that this procedural
10
(2014) 7 SCC 264
11
(2014) 9 SCC 737
12
(2019) 9 SCC 404
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 28 of 79
guarantee applies even where a curative petition
has been dismissed, the limited grounds of
curative jurisdiction being insufficient to
extinguish so fundamental a right.
17. From this discussion, we can conclude that
death-sentence cases stand apart because the
punishment extinguishes the right to life in an
irreversible way, and that singular feature
obliges this Court to keep the door of
constitutional review open even after the
ordinary appellate and review avenues have
closed. Article 32 of the Constitution of India,
therefore, remains available whenever a
supervening fact, such as inordinate delay,
emergent mental illness, or a parity-based
anomaly, or a subsequently recognised
procedural guarantee throws the legitimacy of a
capital sentence into doubt. The power to
intervene under Article 32 of the Constitution of
India is meant to prevent the Constitution from
being stymied by formal finality when a human
life hangs in the balance.
B. Power to do complete justice
notwithstanding procedural finality
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 29 of 79
18. The settled law of this Court is that procedural
finality cannot stand in the way of curing a
constitutional wrong which implicates life or
liberty. In A.R. Antulay v R.S. Nayak and
another13, a Constitutional Bench of this Court,
speaking through multiple concurring opinions,
held that this Court retains an inherent
jurisdiction ex debito justitiae, to recall or modify
its own orders whenever such intervention is
necessary to prevent the continuing violation of
fundamental rights under Articles 14 and 21 of
the Constitution of India. The majority stressed
that no litigant should suffer a deprivation
“merely because of technical objections or
irregularities” and that the constitutional duty to
dispense justice must prevail over considerations
of formal finality. The relevant para has been
reproduced hereunder:
“83. This passage was quoted in the
Gujarat High Court by D.A. Desai, J.,
speaking for the Gujarat High Court
in Soni Vrajlal v. Soni Jadavji [AIR 1972
Guj 148 : (1972) 13 Guj LR 555] as
mentioned before. It appears that in giving
directions on 16-2-1984, this Court13
(1988) 2 SCC 602WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 30 of 79
acted per incuriam inasmuch it did not
bear in mind consciously the
consequences and the provisions of
Sections 6 and 7 of the 1952 Act and the
binding nature of the larger Bench
decision in Anwar Ali Sarkar case [(1952)
1 SCC 1 : AIR 1952 SC 75 : 1952 SCR 284
: 1952 Cri LJ 510] which was not
adverted to by this Court. The basic
fundamentals of the administration of
justice are simple. No man should suffer
because of the mistake of the court. No
man should suffer a wrong by technical
procedure of irregularities. Rules or
procedures are the handmaids of justice
and not the mistress of the justice. Ex
debito justitiac, we must do justice to him.
If a man has been wronged so long as it
lies within the human machinery of
administration of justice that wrong must
be remedied. This is a peculiar fact of this
case which requires emphasis.”
19. That proposition was reiterated in S. Nagaraj v
State of Karnataka and another14, wherein
this Court described itself as being under a
“constitutional and legal obligation” to set
technical barriers aside whenever they obstruct
the remedy of a palpable injustice. Subsequent
decisions have invoked the maxim ubi jus ibi
14
(1993) Supp (4) SCC 595
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 31 of 79
remedium to emphasise that the denial of a
remedy is itself a denial of the right.
“18. Justice is a virtue which transcends
all barriers. Neither the rules of procedure
nor technicalities of law can stand in its
way. The order of the Court should not be
prejudicial to anyone. Rule of stare decisis
is adhered for consistency but it is not as
inflexible in Administrative Law as in
Public Law. Even the law bends before
justice. Entire concept of writ jurisdiction
exercised by the higher courts is founded
on equity and fairness. If the Court finds
that the order was passed under a
mistake and it would not have exercised
the jurisdiction but for the erroneous
assumption which in fact did not exist
and its perpetration shall result in
miscarriage of justice then it cannot on
any principle be precluded from rectifying
the error. Mistake is accepted as valid
reason to recall an order. Difference lies in
the nature of mistake and scope of
rectification, depending on if it is of fact or
law. But the root from which the power
flows is the anxiety to avoid injustice. It is
either statutory or inherent. The latter is
available where the mistake is of the
Court. In Administrative Law the scope is
still wider. Technicalities apart if the
Court is satisfied of the injustice then it is
its constitutional and legal obligation to
set it right by recalling its order. Here as
explained, the Bench of which one of us
(Sahai, J.) was a member did commit an
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 32 of 79
error in placing all the stipendiary
graduates in the scale of First Division
Assistants due to State’s failure to bring
correct facts on record. But that obviously
cannot stand in the way of the Court
correcting its mistake. Such inequitable
consequences as have surfaced now due
to vague affidavit filed by the State cannot
be permitted to continue.”
20. Against that backdrop, a curative petition would
offer the petitioner no meaningful recourse. The
curative jurisdiction, defined in Rupa Ashok
Hurra v Ashok Hurra and another15, is
confined to patent natural-justice violations
apparent on the original record and requires that
the same grounds were urged in review. The
Petitioner’s grievance, namely, the absence of the
procedural guarantees subsequently crystallised
in Manoj (supra) and the emergence of new
medical evidence, could not have formed part of
the earlier record and therefore lies outside the
curative ambit. It follows that the only efficacious
avenue is the inherent corrective power
recognised in Antulay (Supra), exercised
through Article 32 of the Constitution of India
15
(2002) 4 SCC 388
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 33 of 79
and, where necessary, Article 142 of the
Constitution of India, to fashion relief that
vindicates Articles 14 and 21 of the Constitution
of India notwithstanding the formal finality of
prior proceedings.
C. Procedural fairness in capital sentencing as
an imperative under Articles 14 and 21
21. The right to be sentenced in a principled and
individualized manner flows directly from
Articles 14 and 21. In Santosh Kumar
Satishbhushan Bariyar v State of
Maharashtra16, this Court underlined that,
because death is the “most extreme
punishment”, the sentencing procedure must
strictly adhere to constitutional due-process
requirements. This Court further emphasised
that in every capital case “the threshold of the
rarest-of-rare test is informed by Articles 14 and
21 of the Constitution of India”, thereby
anchoring the sentencing phase firmly within the
fundamental-rights framework first articulated
16
(2009) 6 SCC 498
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 34 of 79
in Bachan Singh v. State of Punjab17,. The
relevant paras are hereunder:
“79. Whether primacy should be accorded
to aggravating circumstances or
mitigating circumstances is not the
question. Court is duty-bound by virtue of
Bachan Singh [(1980) 2 SCC 684 : 1980
SCC (Cri) 580] to equally consider both
and then to arrive at a conclusion as to
respective weights to be accorded. We are
also bound by the spirit of Article 14 and
Article 21 which forces us to adopt a
principled approach to sentencing. This
overarching policy flowing from Bachan
Singh [(1980) 2 SCC 684 : 1980 SCC (Cri)
580] applies to heinous crimes as much as
it applies to relatively less brutal murders.
The Court in this regard held: (SCC p. 751,
para 209)“209. … Judges should never be
bloodthirsty. Hanging of murderers has
never been too good for them. Facts and
figures, albeit incomplete, furnished by
the Union of India, show that in the past,
courts have inflicted the extreme penalty
with extreme infrequency—a fact which
attests to the caution and compassion
which they have always brought to bear
on the exercise of their sentencing
discretion in so grave a matter. It is,
therefore, imperative to voice the concern
that courts, aided by the broad illustrative17
(1980) 2 SCC 684WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 35 of 79
guidelines indicated by us, will discharge
the onerous function with evermore
scrupulous care and humane concern,
directed along the highroad of legislative
policy outlined in Section 354(3) viz. that
for persons convicted of murder, life
imprisonment is the rule and death
sentence an exception.”………………………..
138. At this juncture, it is best to point out
that the ensuing discussion, although
applicable in constitutionality context, is
carried out in the context of sentencing of
death punishment. In every capital
sentence case, it must be borne in mind
that the threshold of the rarest of rare
cases is informed by Articles 14 and 21,
owing to the inherent nature of death
penalty. Post-Bachan Singh [(1980) 2 SCC
684 : 1980 SCC (Cri) 580] , capital
sentencing has come into the folds of
constitutional adjudication. This is by
virtue of the safeguards entrenched in
Articles 14 and 21 of our Constitution.”
22. Manoj (supra) was delivered against the
backdrop of persistent concerns, catalogued,
inter alia, in the 262nd Law Commission Report,
about the inconsistency and inadequacy of
death-penalty sentencing. Taking those concerns
seriously, this Court devised a concrete
procedural architecture imposing various
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 36 of 79
obligations on State to protect the Rights of the
accused. These requirements are not
administrative niceties, but they exist to give
substantive content to the constitutional
mandate that punishment should be individually
tailored and proportionate. Since Manoj (supra),
an institutional practice has emerged whereby
this Court routinely calls for the mandated
reports before deciding appeals in capital
punishment cases. As already noted, this Court
has also taken suo-motu cognisance of the
absence of a uniform trial-level framework and
has referred the question to a Constitution Bench
in Suo Motu W.P. (Crl.) No. 1 of 2022. These
developments confirm that the Manoj (supra)
protocol has become an indispensable
component of a “meaningful, real and effective”
sentencing hearing.
23. The relief sought in the present writ is confined
to securing the same procedural guarantee. The
petitioner does not impugn the finding of guilt
recorded in Criminal Appeal Nos. 2486-2487 of
2014 or the conclusions reached in Review
Petition Nos. 637-638 of 2015. The petitioner is
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 37 of 79
seeking a limited remand so that the sentencing
Court may consider the reports and material
envisaged in Manoj (supra). Any modification of
the earlier judgments will be incidental to, and a
necessary consequence of, supplying a
constitutionally compliant procedure. In the
present case, where the petitioner seeks only the
enforcement of a procedural safeguard now
recognised as integral to Articles 14 and 21 of the
Constitution of India, and where no equally
efficacious alternative remedy exists, the
invocation of our extraordinary jurisdiction is
both appropriate and justified.
D. Plenary power to mould relief under Articles
32 and 142
24. This Court’s ability to grant effective relief is not
exhausted by the formal confines of appellate
review. On several occasions after Rupa Ashok
Hurra (Supra), this Court has, in exercise of its
writ jurisdiction, revisited and modified its own
final orders when the interests of justice so
required. This was apparent in Sanjay Singh
and another v U.P. Public Service
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 38 of 79
Commission, Allahabad and another18,
wherein this Court recalibrated its earlier
directions on evaluation methodology, and
Bilkis Yakub Rasool v Union of India and
others19, in which this Court set aside a
remission order by invoking both Articles 32 and
142 to protect fundamental rights developed
after the original conviction. Moreover, in
Supreme Court Bar Association v Union of
India and another20, the Constitution Bench
explained that the Court’s plenary powers are
inherent and complementary to those conferred
by statute and exist independent of those
statutes with a view to do complete justice
between the parties. The Bench emphasised that
these constitutional powers permit this Court to
craft remedies unrestrained by procedural or
statutory limitations whenever necessary to
uphold justice.
25. Consequently, it may be concluded that Article
32 of the Constitution of India is not restricted to
reviewing decisions of subordinate courts or
18
(2007) 3 SCC 720
19
(2024) 5 SCC 481
20
(1998) 4 SCC 409
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 39 of 79
executive authorities. In exceptional situations it
empowers this Court to revisit even its own final
orders where doing so is necessary to prevent a
continuing breach of fundamental rights. The
controlling test is whether such intervention is
required to avert manifest injustice under
Articles 14 and 21 of the Constitution of India,
and technical rules of procedure cannot be
permitted to thwart that constitutional mission.
26. Viewed through that lens, the Petitioner’s request
for a new sentencing hearing which is compliant
to Manoj (supra) falls squarely within Article 32
of the Constitution of India. The relief sought is
narrowly tailored as it does not disturb the
conviction or reopen evidentiary findings but
merely insists that the ultimate penalty be
imposed, if at all, through the procedural
safeguards now recognised as integral to a fair
and individualised sentence. We believe that
granting this remedy is therefore a legitimate,
and indeed compelling exercise of the Court’s
plenary power under Article 32 of the
Constitution of India to secure the effective
enforcement of fundamental rights.
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 40 of 79
27. In the backdrop of the discussion above, we must
also recognise the evolution of our own
constitutional culture. Contemporary Indian
society no longer conceives criminal punishment
purely in retributive terms. It also measures the
quantum of a sentence by its capacity to preserve
the possibility of human reform. The goal of
reformation, repeatedly affirmed in our
jurisprudence, presupposes that the legal system
will not foreclose the prospect of moral
regeneration unless every procedural assurance
of accuracy and fairness has first been
scrupulously observed.
28. We cannot overlook that the machinery which
feeds the death-penalty system is itself fragile.
Investigations often rely on confessions extracted
in opacity, recoveries whose provenance is
contested and forensic material of doubtful
rigour. When such evidence is filtered through an
overburdened trial process, the possibility of
wrongful conviction can never be dismissed as a
remote abstraction. An irreversible penalty
grafted onto a fallible process endangers the very
core of Article 21 of the Constitution of India. At
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 41 of 79
this juncture, we must state that Punishment in
a constitutional democracy must ultimately
reflect the moral trajectory of the society it
serves. Over time, this Court has come to believe
that every person, even one who has done great
wrong, still carries a basic human dignity. This
belief does not excuse crime but it simply means
the State should keep open, wherever possible,
the chance for an offender to change. It is our
belief that moving from pure retribution to
genuine reform is not an act of undue leniency
but it is a statement of faith in the human
capacity for improvement.
29. Modern penology reinforces that conviction.
Empirical literature has yet to establish that the
spectacle of an execution deters homicide more
effectively than a sentence of incarceration for
the natural span of life. What is clear, however,
is that a death sentence closes every door as it
ends all hope of remorse, of reconciliation with
victims’ families, and of uncovering mistakes that
sometimes emerge only after many years. A just
society may protect itself from serious crime, but
it must do so with measures that can be clearly
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 42 of 79
defended as both necessary and fair. Our
Constitution therefore sets a very high bar before
the State can take a life. We strongly believe that
it is not enough to simply point to the horror of
an offence. The process leading to a death
sentence must itself be beyond reproach as it
must also be open, thorough and fair. The
safeguards laid down in Manoj (supra) are meant
to ensure exactly that. Until those safeguards are
fully applied, carrying out a death sentence
would sit contrary to Articles 14 and 21 of the
Constitution of India as they promise equality
and fair procedure to every person in our society.
30. Accordingly, the Writ Petition is allowed.
31. We therefore hold that Article 32 of the
Constitution of India empowers this Court in
cases related to capital punishment to reopen the
sentencing stage where the accused has been
condemned to death penalty without ensuring
that the guidelines mandated in Manoj (supra)
were followed. This corrective power is invoked
precisely to compel rigorous application of the
Manoj (supra) safeguards in such cases, thereby
ensuring that the condemned person is not
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 43 of 79
deprived of the fundamental rights to equal
treatment, individualized sentencing, and fair
procedure that Articles 14 and 21 of the
Constitution of India secure to every person.
32. We add, however, a word of caution. Article 32 of
the Constitution of India is the bedrock of
constitutional remedies, but its exceptional
scope cannot be permitted to become a routine
pathway for reopening concluded matters.
Reopening will be reserved only for those cases
where there is a clear, specific breach of the new
procedural safeguards as these breaches are so
serious that, if left uncorrected, they would
undermine the accused person’s basic rights to
life, dignity and fair process.
33. Accordingly, we further clarify that the finding of
guilt recorded against the petitioner is left
untouched. Nothing in this judgment shall be
read as a comment, direct or implied, on the
evidence that sustained conviction or on any
defence that may have been raised at trial. Our
intervention is strictly confined to the issue of
sentence.
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 44 of 79
34. The sentence of death affirmed by this Court on
03 May 2017 is, for the present, set aside, and
the matter is remitted to this Court for a fresh
hearing on sentence alone, to be conducted in
conformity with the directions in Manoj (supra).
35. The Registry is directed to place the matter before
the Hon’ble the Chief Justice of India for
assignment to an appropriate Bench.
36. All pending application(s), if any, stand disposed
of.
SANJAY KAROL, J.
37. I have perused the erudite opinion by my
esteemed MyLord, Vikram Nath, J,. The scholarly
lucidity with its empathetic and farsighted
understanding of the Constitution and the values
it espouses has prompted my whole-hearted
concurrence. However, considering the
peculiarity and the importance of the questions
before us, I desire to pen down a few thoughts of
my own.
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 45 of 79
“For the determination of sentences,
justice generally requires consideration of
more than the particular acts by which
the crime was committed, and that there
be taken into account the circumstances
of the offense, together with the character
and propensities of the offender. His past
may be taken to indicate his present
purposes and tendencies, and
significantly to suggest the period of
restraint and the kind of discipline that
ought to be imposed upon him.”
Justice Pierce Butler21
38. The crux of the petitioner’s case is that post his
conviction and confirmation thereof, right up to
this Court, meaning thereby that his sentence of
being hanged till death was made certain, both
judicially and on the part of the executive (with a
Review Petition and Clemency Petitions both to
the Hon’ble Governor and the Hon’ble President
of India, being rejected), there have been judicial
developments by way of a three-Judge Bench
decision in Manoj v. State of M.P.22, whereby
this Court mandated the calling of certain
21
Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51 (1937)
22
(2023) 2 SCC 353
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 46 of 79
reports, the content whereof has to be duly
considered in arriving at a just and proper
sentence, of which he claims benefit. In other
words, the petitioner seeks directions from this
Court to grant him the benefit of revisiting his
sentence, in light of the procedure laid down in
Manoj (supra).
39. This Court in Byluru Thippaiah v. State of
Karnataka23 had recently observed that Manoj
(supra) represented a watershed moment in the
Indian sentencing regime. By way of the said
judgment, this Court shone a path for
individualised sentencing. Individualised
sentencing, as the name suggests, is a judicial
practice where the punishment awarded to an
offender is crafted or moulded, acknowledging
not just the crime but also the criminal. It may
be so that an individual has committed a crime,
but in modern penology, the same does not
necessarily mean that a sentence can be imposed
upon them in disregard of the background which
may have led the offender to such a position.
This is more so a case where the punishment to
23
2025 SCC OnLine SC 1455
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 47 of 79
be meted out is afflicted by irreversibility, in
other words, the death sentence. In doing so,
this Court considers the offenders’ background –
social, economic and psychological; personal
history; character; and rehabilitation potential.
40. While Manoj (supra) is the first time that this
Court has mandated calling of these reports in
furtherance of the mitigating factors spelt out in
Bachan Singh v. State of Punjab24 the idea of
individualised sentencing took root in Western
jurisdictions much earlier. At this point, it has to
be recognized that most Western countries have
outlawed the death penalty, and as one of the, if
not the only, notable exceptions, it shall be useful
to notice a few decisions of the Supreme Court of
the United States of America.
40.1 In Lockett v. Ohio25, the Court was
confronted with a situation where the
getaway driver, who was involved in a
robbery that resulted in a murder, was found
guilty and sentenced to death. The question
before the Court was whether the Ohio
statute requiring the death penalty for
24
(1980) 2 SCC 684
25
438 US 586 (1978)
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 48 of 79
aggravated murder was violative of the
Eighth and Fourteenth Amendment of the
U.S. Constitution unless anyone of the
following three criteria could be found – (i)
that the victim had induced the offence; (ii)
the same had been committed under duress
or coercion; and (iii) the offence was a
product of mental deficiencies. The Court
held that restricting the mitigating factors
only to the above three points did indeed
violate the Constitution. It was held as
follows :
“There is no perfect procedure for
deciding in which cases
Governmental authority should be
used to impose death. But a statute
that prevents a sentencer in all
capital punishment from giving
independent mitigating weight to
aspects of the defendant’s character
and record and to circumstances of
the offence proffered in mitigation
creates a risk that the death penalty
would be imposed inspite of factors
which may call for a less severe
penalty. When the choice is between
life and death, the risk is
unacceptable and incompatible…”WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 49 of 79
40.2 The Lockett doctrine, which is best captured
in Penry v. Lynaugh26 to the effect that
punishments must be directly related to the
defendant’s personal culpability and that a
defendant who commits crime(s) attributable
to a disadvantaged background or emotional
or mental problems may be less culpable
than the one who has no such excuse, was
furthered in Eddings v. Oklahoma27. The
Court held the Trial Court to be in error for
not having considered Eddings’ age (16
years) as a mitigating factor given his “violent
background”. At trial, a State psychologist
had also testified to the effect that he
suffered from a sociopathic and anti-social
personality disorder. The Court found the
Trial Court to be in error on this count as
well. The majority held as follows :
“Eddings was not a normal 16-year-
old; he had been deprived of the care,
concern and parental attention that
children deserve. On the contrary, it
is not disputed that he was a juvenile
with serious emotional problems and26
492 U.S. 302 (1989)
27
455 U.S. 104 (1982)WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 50 of 79
had been raised in a neglectful,
sometimes even violent, family
background. In addition, there was
testimony that Eddings’ mental and
emotional development were at a level
several years below his chronological
age. All of this does not suggest an
absence of responsibility for the crime
of murder, deliberately committed in
this case. Rather, it is to say that, just
as the chronological age of a minor is
itself a relevant mitigating factor of
great weight, so must the background
and mental and emotional
disturbance of a youthful defendant
be duly considered in sentencing.”40.3 In Skipper v. South Carolina28, the
Court heard an appeal against a concurrently
confirmed death sentence, where at the
sentencing hearing, the learned Trial Judge
denied the admission of mitigating evidence in
the form of testimony of the two jailers and a
regular visitor – who would have testified to
the effect that he had adjusted well under
incarceration in the seven and a half months
that he had spent in prison between his arrest
and trial. Both the Courts below held such28
476 U.S 1 (1986)WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 51 of 79
evidence to be inadmissible and irrelevant.
Such findings were vacated and it was held
that it was not open for the sentencer to refuse
consideration of any of the “relevant
mitigating evidence.” In the concurring
opinion, it was observed that all relevant
factors should be considered at the stage of
the Subordinate Courts themselves, as
opposed to being considered by the Supreme
Court, for it has no special expertise in
deciding the appropriateness of factors to be
considered or otherwise.
40.3 Graham v. Collins29 was a case where the
Court was dealing with a case of first-degree
murder. The sentence of death imposed was
confirmed by the Supreme Court, but in
doing so, it was observed that the same could
be arrived at, as per the guidance given by
the Texas statute in question, giving
‘constitutionally adequate’ considerations to
factors such as age.
29
506 U.S 461 (1993)
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 52 of 79
40.4 In Tennard v. Dretke30, the Court rejected
two tests applied by the Fifth Circuit Court
of Appeals, where they, in order to consider
the factum of his low IQ, applied two tests,
i.e., of ‘nexus’ to the crime and a test for
‘uniquely severe permanent handicap’,
observing thus :
“Reasonable jurists could conclude
that the low IQ evidence Tennard
presented was relevant mitigating
evidence. Evidence of significantly
impaired intellectual functioning is
obviously evidence that “might serve
‘as a basis for a sentence less than
death,’” Skipper, 476 U. S., at 5; see
also, e.g., Wiggins v. Smith, 539 U. S.
510, 535 (2003) (observing, with
respect to individual with IQ of 79,
that “Wiggins[‘] … diminished mental
capacitie[s] further augment his
mitigation case”); Burger v. Kemp,
483 U. S. 776, 779, 789, n. 7 (1987)
(noting that petitioner “had an IQ of
82 and functioned at the level of a 12-
year-old child,” and later that “[i]n
light of petitioner’s youth at the time
of the offense, … testimony that his
‘mental and emotional development
were at a level several years below his
chronological age’ could not have
30
2004 SCC OnLine US SC 59
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 53 of 79
been excluded by the state court”
(quoting Eddings, 455 U. S., at 116)).
Reasonable jurists also could
conclude that the Texas Court of
Criminal Appeals' application
of Penry to the facts of Tennard’s
case was unreasonable. The
relationship between the special
issues and Tennard’s low IQ evidence
has the same essential features as
the relationship between the special
issues and Penry’s mental
retardation evidence. Impaired
intellectual functioning has
mitigating dimension beyond the
impact it has on the individual’s
ability to act deliberately. See Penry I,
492 U. S., at 322. A reasonable jurist
could conclude that the jury might
well have given Tennard’s low IQ
evidence aggravating effect in
considering his future
dangerousness, not only as a matter
of probable inference from the
evidence but also because the
prosecutor told them to do so:
“[W]hether he has a low IQ or not is
not really the issue. Because the
legislature, in asking you to address
that question, the reasons why he
became a danger are not really
relevant. The fact that he is a danger,
that the evidence shows he’s a
danger, is the criteria to use in
answering that question.” App. 60.
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 54 of 79
Indeed, the prosecutor’s comments
pressed exactly the most problematic
interpretation of the special issues,
suggesting that Tennard’s low IQ was
irrelevant in mitigation, but relevant
to the question whether he posed a
future danger.”40.5 The above discussion by no means is meant
to be an extensive deliberation of how the
mitigating factors, eventually recognised by
this Court in Manoj (supra), came to be
considered in other jurisdictions. It is only
meant to be indicative of the processes
followed in a developed or developing
Country that is retentionist31 qua the death
penalty, which in all, are fifty four.
31
Across the world, there are fifty-four countries that still have capital punishment on their
statute books. In Africa- Botswana, Comoros, Democratic Republic of the Congo, Egypt,
Ethiopia, Gambia, Lesotho, Libya, Nigeria, Somalia, South Sudan, Sudan, Uganda. In Asia-
Afghanistan, Bahrain, Bangladesh, China, India, Indonesia, Iran, Iraq, Japan, Jordan,
Kuwait, Lebanon, Malaysia, Myanmar, North Korea, Oman, Pakistan, Palestine, Qatar,
Saudi Arabia, Singapore, Syria, Taiwan, Thailand, United Arab Emirates, Vietnam, Yemen.
In Europe- Belarus. In North America- Antigua and Barbuda, Bahamas, Barbados, Belize,
Cuba, Dominica, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and
Grenadines, Trinidad and Tobago, United States of America. In South America- Guyana.
[See: Death Penlty Information Center: https://deathpenaltyinfo.org/policy-
issues/policy/international/abolitionist-and-retentionist-countries
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 55 of 79
41. It is also to be noted that academic discourse32
argues for principles of individualised sentencing
to be extended to non-capital felony convictions,
i.e., serious crimes for which punishments other
than death have been prescribed. This has been
argued, keeping in view the effect that
convictions for such serious offences may have
on the person so convicted, causing
“dehumanizing effects” that extend far beyond
release from incarceration, such as the loss of
right to vote, housing and employment and most
obviously, social stigma. This extension would
grant three benefits – I. Grant each defendant an
effective opportunity to present circumstances
for and against his case; II. Enhance
transparency and further proportionality; and III.
Restore sentencing discretion to neutral
Tribunals and respect for offender dignity.
Academic discourse is the birthplace of
nuanced ideas that have great potential to inform and
influence legislative policy and judicial action.
Examples are aplenty of such influence. Even in the
32
William W. Berry, Individualized Sentencing, 76 Wash.& Lee L. Rev.13 (2019).
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 56 of 79
United States, where this discussion is taking shape,
concrete steps are yet to be taken in so far as the
extension of consideration of the mitigating factors in
non-capital felony offences. However, as we have
noticed above, the consideration of these factors in
offences with capital punishment is well established.
If the boundaries of theoretical discussions have
extended so far ahead, it would only stand to reason
that the judicial fora would at least extend these
benefits to cases where the alternative is the State-
sanctioned taking away of a person’s life. This is more
so because the commission of an offence is not a
stand-alone incident, but rather the culmination of a
sum total of circumstances that would have driven
the offender to commit such a crime. For Courts to
close their eyes to this possibility is the gravest form
of injustice that can be caused by the stroke of a pen.
42. In general perception, the image of convicts on
death row is most uncharitable and hostile, and
to perceive dignity for them may appear to some
as an unjust concession to the most
undeserving. The law, however, does not permit
such perceptions. The rights available to a free
person walking the streets are also to some
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 57 of 79
extent available to those who are confined behind
bars, inasmuch as the same has been
recognized, for instance, in cases where, despite
the rejection of mercy petitions, the executions of
these persons remain pending for years. This, it
has been held, is violative of the prisoners’ rights
under Article 21 of the Constitution of India.
Article 21, as we are well aware, provides that no
person will be deprived of their life and liberty
except in accordance with the procedure
established by law. When a person has been
sentenced to death, and the same has been
confirmed on appeal, the deprivation of liberty is
in accordance with law, but even then, some
aspects of Article 21 would still be with such a
prisoner.
43. Dignity, which is essential to the ‘life’ and well-
recognised to be something more than a mere
animal existence, is one such right [See: Navtej
Singh Johar v. Union of India33]. There may
be, on an ideal plane, opposition to this
recognition, given that this implies dignity is
inherent in even those who have been convicted
33
(2018) 10 SCC 1
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 58 of 79
of having committed the most barbaric of acts –
but that is true. So long as a person is living, he
is entitled to dignity. Immanuel Kant34, who is
recognized as the modern proponent of the
understanding of dignity, observed thus :
“Every human being has a legitimate
claim to respect from his fellow human
beings and is in turn bound to respect
every other. Humanity itself is a dignity;
for a human being cannot be used
merely as a means by any human being
… but must also be used at the same
time as an end. It is just in this that his
dignity … consists, by which he raises
himself above all other beings in the
world that are not human beings and
yet can be used, and so over all things.”
44. During the Second World War, one of the
ghastliest acts against humanity was
perpetrated, where a section of the population
was wiped out merely on account of their
ethnicity and religious beliefs in an attempt to
cleanse a particular race. Fresh out of the war
34
Kant, I. (2017). Kant: The Metaphysics of Morals. (M. Gregor, Trans., L. Denis, Ed.)
(2nd ed.). Cambridge: Cambridge University Press.
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 59 of 79
when the Member States of the United Nations
convened to set down the Universal Declaration
of Human Rights, they were aware of the vast
differences amongst them and yet found common
ground on the idea of dignity35. As a result, the
first Article of the Declaration itself states that all
persons are born equal in rights and dignity.
45. One form of dignity is the “non-
instrumentalization of persons”, which means
viewing offenders as individual human beings. In
the realm of punishment, this humane view of
offenders entails proportionality and
humanness. A detailed exposition is not
warranted for the principle of proportionality,
save and except to say that the punishment
awarded to an offender has to be directly related
to the offence committed. The second aspect of
humaneness entails that the punishment so
awarded should not be outside the bounds of
human decency36. All these aspects circle back
to our constitutional values embodied in Articles
14 and 21. The words of Ramaswamy, J., in
35
M.Nussbaum, Human Dignity & Political entitlements, in Human Dignity and Bioethics:
Essays Commissioned by the President’s Council on Bioethics 360 (2008).
36
M.J.Ryan, Taking Dignity Seriously: Excavating the backdrop of the Eight Amendment,
(2016) U.ILL L.REV.2129.
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 60 of 79
Kartar Singh v. State of Punjab37, are
instructive:
“The foundation of Indian political and
social democracy, as envisioned in the
preamble of the Constitution, rests on
justice, equality, liberty, and fraternity
in secular and socialist republic in
which every individual has equal
opportunity to strive towards excellence
and of his dignity of person in an
integrated egalitarian Bharat. Right to
justice and equality and stated liberties
which include freedom of expression,
belief and movement are the means for
excellence. The right to life with human
dignity of person is a fundamental right
of every citizen for pursuit of happiness
and excellence. Personal freedom is a
basic condition for full development of
human personality. Article 21 of the
Constitution protects right to life which
is the most precious right in a civilised
society. The trinity i.e. liberty, equality
and fraternity always blossoms and
enlivens the flower of human dignity.”The question that is to be considered is whether
the rights under Article 21 of the instant petitioner
and the other similarly placed convicts, who would be37
(1994) 3 SCC 569WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 61 of 79
benefitted by the retrospective application of Manoj
(supra), would be harmed and their dignity
threatened if this particular aspect is seen only from
the angle of a subsequent development, as it would
defeat the noble purpose of individualized sentencing
put forth in Manoj (supra) and the mitigating factors
that could possibly be brought on record by the
instant petitioner, will be left untouched and
unexplored. There is no constitutional permissibility
to give a go-by to the sacrosanct right under Article
21, on the basis that the judgment which benefits the
petitioner and other similarly placed persons was
delivered after the finality of conviction and sentence
of the persons was determined.
46. According to Blackstonian theory38, the role of
the Court is not to create new laws but to uphold
and explain existing ones. Judges are seen as
discovering or interpreting the correct law rather
than making law themselves; the law is
considered to have always existed as it is.
Therefore, if a later judgment departs from an
earlier one, it does not introduce a new law but
38
15th Ed. William Blackstone, Commentaries on the Laws of England
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 62 of 79
rather uncovers the true legal principle, which
then applies retrospectively. Salmond echoes this
view, explaining that case law operates on the
premise that Judges merely declare the law. He
wrote :
“[T]he theory of case law is that a judge
does not make law; he merely declares it;
and the overruling of a previous decision
is a declaration that the supposed rule
never was law. Hence any intermediate
transactions made on the strength of the
supposed rule are governed by the law
established in the overruling decision.”To put it otherwise, when a previous decision is
overruled, it means the earlier rule was never truly
the law, and all actions taken based on that supposed
rule are subject to the new, correct legal
determination, except in cases that are already finally
decided (res judicata) or where accounts have already
been settled. Thus, overruling a decision has a
retrospective effect, clarifying what the law always
was, with limited exceptions.
47. The Blackstonian theory has found application
by this Court on few occasions. In CIT v.
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 63 of 79
Saurashtra Kutch Stock Exchange Ltd39, C.K.
Thakker, J. explained the theory in the following
terms:
“35. In our judgment, it is also well
settled that a judicial decision acts
retrospectively. According to
Blackstonian theory, it is not the
function of the court to pronounce a
“new rule” but to maintain and
expound the “old one”. In other
words, Judges do not make law, they
only discover or find the correct law.
The law has always been the same. If
a subsequent decision alters the
earlier one, it (the later decision) does
not make new law. It only discovers
the correct principle of law which has
to be applied retrospectively. To put it
differently, even where an earlier
decision of the court operated for
quite some time, the decision
rendered later on would have
retrospective effect clarifying the legal
position which was earlier not
correctly understood.”[See also: Directorate of Revenue
Intelligence v. Raj Kumar Arora40.]39
(2008) 14 SCC 171
40
2025 SCC Online SC 819WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 64 of 79
48. Courts in other jurisdictions have also held
judgments to have a retrospective effect. The
inimitable Justice Holmes in his dissent in
Barton Kuhn v. Fairmont Coal Co.41, observed
:
“ “35. … I know of no authority in this
Court to say that, in general, State
decisions shall make law only for the
future. Judicial decisions have had
retrospective operation for near a
thousand years.”
49. The Supreme Court of Canada in Attorney
General of Canada v. George Hislop42, has
held that :
“86. However, this acknowledgement
does not require abandoning
Blackstone’s declaratory approach
altogether. The critique of the
Blackstonian approach applies only
to situations in which judges are
fashioning new legal rules or
principles and not when they are
applying the existing law. In
instances where courts apply pre-
41
1910 SCC OnLine US SC 2
42
2007 SCC OnLine Can SC 10WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 65 of 79
existing legal doctrine to a new set of
facts, Blackstone’s declaratory
approach remains appropriate and
remedies are necessarily retroactive.
Because courts are adjudicative
bodies that, in the usual course of
things, are called upon to decide the
legal consequences of past
happenings, they generally grant
remedies that are retroactive to the
extent necessary to ensure that
successful litigants will have the
benefit of the ruling…”
50. Building on the Blackstonian theory and
Salmond’s explanation that the Courts do not
create new law but merely declare what the law
has always been, so that any overruling by a
subsequent decision operates retrospectively,
this understanding is directly relevant for the
interpretation of Manoj (supra) with regard to its
retrospective or prospective application. The
question whether Manoj (supra) applies
prospectively or retrospectively deeply affects the
protection of Article 21 rights. If Courts deny
petitioners the benefit of new legal developments
solely because these emerged from later rulings,
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 66 of 79
it could jeopardize the fundamental rights. In
this vein, the decision in Kanishk Sinha & Anr
v. State of West Bengal & Anr.43 affirms that,
while statutes operate prospectively, unless
expressly stated, judgments of constitutional
Courts are presumed to be retrospective unless
the Court expressly limits their effect. This
alignment of legal principles bolsters the
understanding that judicial declarations usually
operate retrospectively, ensuring that the
benefits of such rulings generally reach past
cases unless specifically restricted. This
continuity in judicial philosophy upholds
fairness by protecting individual rights
regardless of the timing of the judgment.
51. This case has presented two questions for
consideration – one, regarding the retrospective
application of the principles in Manoj (supra)
which stands answered as above; and second,
being the applicability and maintainability of
Article 32 of the Constitution of India, the
thornier of the afore-mentioned issues after the
rejection of the mercy petitions preferred before
43
2025 SCC Online SC 443
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 67 of 79
the Hon’ble President of India and the Hon’ble
Governor of Maharashtra.
52. Article 32 of the Constitution of India provides
that this Court has the power to issue prerogative
writs in favour of the applicant before it, should
they succeed in establishing a violation of a right
under Part III of the Constitution. The natural
corollary that the petitioner would have to show
that some or the other right available to him,
which is enshrined under Part III stands violated.
The case of the petitioner, accordingly, is that the
denial of the sentencing procedure as established
in Manoj (supra) violates his rights under Article
21 of the Constitution.
53. What this necessarily implies is that the law
declared by this Court in Manoj (supra) has
acquired such a status that the non-availability
thereof to the petitioner prejudices him greatly.
This Court has, time and again in the
interpretation of various legislations, national
and international, declared the law as it should
be in accordance with Article 141 of the
Constitution of India. Similarly, in Manoj
(supra), in my view, all that has been done is that
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 68 of 79
a streamlined and time-bound process has been
laid down, to be necessarily followed by the
Courts below, which hitherto had not been done
despite postulation in Bachan Singh (supra).
54. If the law once declared is not followed and the
same causes a demonstrable detriment to a
person, or in this case, a convict, such person
will have a legitimate grievance which the Courts
would be then required to remedy. As already
observed in the preceding paragraphs, the law
declared by the constitutional Courts applies
retrospectively. Ex-consequenti, the benefit of
Manoj (supra) applies to the petitioner
retrospectively and the denial of such benefit,
which may eventually have the effect of saving
him from the hangman’s noose, if it is indeed
found that his socio-economic and psychological
background as also other mitigating factors as
may be procured, did play a sufficient role in the
petitioner committing the heinous crime that he
did, non-consideration of these factors would
constitute a violation of Article 21, since the
effect thereof would be that his life would be
eventually taken away.
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 69 of 79
55. The substance of the Union’s and the State’s
opposition to this writ petition was that Article 32
cannot be permitted to be invoked post
conclusion of the process as is provided under
law, in an effort to disturb findings already made
and confirmed. There is also an apprehension
that if this Court permits the exercise of powers
under Article 32 in this case, it would also give
other convicts similarly condemned an avenue
for re-agitation, even after dismissal of the review
petition. While the apprehension of the Union of
India and the State appears somewhat justified,
which we will deal with subsequently, the
contention regarding the maintainability of
Article 32 does not merit acceptance.
56. This is evident from a bare perusal of Part III of
the Constitution. The framers have consciously
placed a pathway to this Court into the heart and
soul of the Constitution, ensuring and
guaranteeing that no person, for whatever
reason, can be denied an avenue to have their
grievance redressed, when some action of the
State infringes on the rights guaranteed by Part
III of the Constitution of India. The guaranteed
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 70 of 79
right to approach this Court was considered, and
rightly so, fundamental to the protection of the
fundamental rights by the framers of the
Constitution themselves. Illustratively, certain
extracts of the discussion on draft Article 25 are
reproduced herein below :
“G. Durgabai- Sir, the right to move the
Supreme Court by appropriate
proceedings for the enforcement of a
person’s rights is a very valuable right
that is guaranteed under this
Constitution. In my view this is a right
which is fundamental to all the
fundamental rights guaranteed under
this Constitution. The main principle of
this article is to secure an effective
remedy to the fundamental rights
guaranteed under this Constitution. As
we are all aware, a right without an
expeditious and effective remedy serves
no purpose at all, nor is it worth the paper
on which it is written. Therefore, as I have
already stated, this article secures that
kind of advantage that it will ensure the
effective enforcement of the fundamental
rights guaranteed to a person.44Jerome D Souza- Sir, it is because we all
believe,–and that is the implication of this44
Constituent Assembly Debates, Official Report, Vol. VII (4 November 1948), at 3–5
(India).
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 71 of 79
chapter of fundamental Rights,–that man
has certain rights that are inalienable,
that cannot be questioned by any
humanly constituted legislative authority,
that these Fundamental Rights are
framed in this manner and a sanction and
a protection given to them by this
provision for appeal to the Supreme
Court. Sir, if all our people and their
outlook were entirely materialistic, if right
and wrong were to be judged by a majority
vote, then there is no significance in
fundamental rights and the placing of
them under the protection of the High
Court. It is because we believe that the
fullest and the most integral definition of
democracy includes and is based upon
this sacredness of the individual, of his
personality and the claims of his
conscience, that we have framed these
rights.45”
(Emphasis supplied)
The Statement of the Chairman of the Drafting
Committee of the Constitution, Dr. B.R. Ambedkar
also highlights the high pedestal upon which this
Article rests. This Court in Fertilizer Corpn.
Kamgar Union v. Union of India46, speaking
45
Constituent Assembly Debates, Official Report, Vol. VII (4 November 1948), at 8–10
(India).
46
(1981) 1 SCC 568
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 72 of 79
through Y.V. Chandrachud, CJI, noticed this
statement as follows :
“A right without a remedy is a legal
conundrum of a most grotesque kind.
While the draft Article 25, which
corresponds to Article 32, was being
discussed in the Constituent Assembly,
Dr Ambedkar made a meaningful
observation by saying:
“If I was asked to name any
particular article in this
Constitution as the most important
— an article without which this
Constitution would be a nullity — I
could not refer to any other article
except this one. It is the very soul of
the Constitution and the very heart
of it and I am glad that the House
has realised its importance. [
Constituent Assembly Debates,
December 9, 1948, Vol. VII, p. 953]”Here itself, to further supplement the indispensability
of Article 32, it is reiterated that this Article forms the
Basic Structure of the Constitution of India and as a
consequence thereof, its essence cannot be taken
away even by the exercise of the powers of the
Parliament. This Court has also struck down
legislation as ultra vires the Constitution in cases
where this power has been sought to beWRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 73 of 79
circumscribed. Paragraph 99 of L. Chandra Kumar
v. Union of India47 reads as under :
“The jurisdiction conferred upon the High
Courts under Articles 226/227 and upon
the Supreme Court under Article 32 of the
Constitution is a part of the inviolable
basic structure of our Constitution. While
this jurisdiction cannot be ousted, other
courts and Tribunals may perform a
supplemental role in discharging the
powers conferred by Articles 226/227 and
32 of the Constitution. The Tribunals
created under Article 323-A and Article
323-B of the Constitution are possessed
of the competence to test the
constitutional validity of statutory
provisions and rules. All decisions of
these Tribunals will, however, be subject
to scrutiny before a Division Bench of the
High Court …”
(Emphasis supplied)As is made evident from the above extract, the
framers of the Constitution held a deeply regarded
belief that certain rights are inalienable and most
precious to a person, and for the enforcement of these
rights that the doors of this Court were kept open for
all. It is well-established that reference to the47
(1997) 3 SCC 261WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 74 of 79
Constitutional Assembly debates can be made in the
interpretation of a constitutional provision. [See:
S.R. Chaudhuri v. State of Punjab & ors.48; and
K.S. Puttaswamy v. Union of India49.] It becomes
but obvious then, that nothing whatsoever under the
law can cast a shadow or eclipse this right, whether
it be the availability of a substantive alternate remedy
or procedural wrangles. In the present case, since
this Court has confirmed the petitioner’s conviction,
and review was also dismissed, he has no other
avenue other than this Court where he may seek the
benefit of the principles in Manoj (supra). It is almost
impossible to conceive that the remedy under this
Article would be foreclosed to the petitioner when
Article 21 is the only thing that stands between the
petitioner and the rope of death, only in order to
underscore and emphasize the finality of a judicial
determination, which in all cases apart from such
exceptional circumstances, is a cardinal principle to
be abided by.
57. As for the argument of the learned Advocate
General for the State of Maharashtra that after
48
(2001) 7 SCC 126
49
(2019) 1 SCC 1
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 75 of 79
dismissal of a review petition, the only available
path is that of the curative petition, the same is
difficult to accept for the Constitution Bench in
Rupa Ashok Hurra v. Ashok Hurra50 itself
states that this jurisdiction is to be exercised only
in those cases where the circumstances permit
the finality of a judicial decision to be altered
with. Para 42 reads as under :
“42. The concern of this Court for
rendering justice in a cause is not less
important than the principle of finality of
its judgment. We are faced with
competing principles — ensuring
certainty and finality of a judgment of the
Court of last resort and dispensing justice
on reconsideration of a judgment on the
ground that it is vitiated being in violation
of the principles of natural justice or
giving scope for apprehension of bias due
to a Judge who participated in the
decision-making process not disclosing
his links with a party to the case, or on
account of abuse of the process of the
court. Such a judgment, far from
ensuring finality, will always remain
under the cloud of uncertainty. Almighty
alone is the dispenser of absolute justice
— a concept which is not disputed but by
a few. We are of the view that though50
(2002) 4 SCC 388WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 76 of 79
Judges of the highest court do their best,
subject of course to the limitation of
human fallibility, yet situations may
arise, in the rarest of the rare cases,
which would require reconsideration of a
final judgment to set right miscarriage of
justice complained of. In such case it
would not only be proper but also
obligatory both legally and morally to
rectify the error. After giving our anxious
consideration to the question, we are
persuaded to hold that the duty to do
justice in these rarest of rare cases shall
have to prevail over the policy of certainty
of judgment as though it is essentially in
the public interest that a final judgment
of the final court in the country should
not be open to challenge, yet there may be
circumstances, as mentioned above,
wherein declining to reconsider the
judgment would be oppressive to judicial
conscience and would cause perpetuation
of irremediable injustice.”
(Emphasis supplied)
58. The upshot of the above discussion is that
Article 32 has pride of place – a Jewel on the
Crown of the Justice Delivery System – in the
Indian Constitutional scheme and is
unquestionably available to even those who are
serving sentences for the most heinous offences.
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 77 of 79
Given that Manoj (supra) was not in operation or
did not exist at the time when the present
petitioner was sentenced and his review was
dismissed, no other recognized way was available
to him to approach this Court seeking benefit
thereof. It has already been held that judicial
pronouncements apply retrospectively and so a
right was conferred upon him to have his
sentence re-examined in the light of materials
gathered under the principles of Manoj (supra),
it is to exercise such a right which has a direct
impact on his Article 21 rights that a petition
under Article 32 had to be preferred. It,
therefore, has to be necessarily held to be
maintainable.
59. The end result of this petition being held
maintainable is not meant to give a way out to
persons convicted under a procedure established
by law to approach this Court seeking to reopen
the conclusions arrived at properly or simply to
hide behind ongoing litigation in order to delay
the inevitable carrying out of the sentence. Such
a petition has been held to be maintainable in the
specific facts of this case, where a subsequent
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 78 of 79
development in law granted a benefit to a convict,
and there was no other avenue available to him.
We are informed that in all, there are only 7 such
convicts, sentenced to be hanged, seeking the
benefit of Manoj (supra).
…………………………J.
(VIKRAM NATH)
…………………………J.
(SANJAY KAROL)
…………………………J.
(SANDEEP MEHTA)
NEW DELHI
AUGUST 25, 2025
WRIT PETITION (CRIMINAL) NO. 371 OF 2023 Page 79 of 79