Capital punishment has been the subject of considerable judicial discourse in India, a significant part of which has focused on isolating the right to life from sweeping judicial discretion in such cases. Words of Justice Nariman in Arif (Para 29) precisely captures the Court’s approach: “…death sentence cases… are a distinct category of cases altogether… and apart from death sentence being granted only in the rarest of rare cases, two factors have impressed us. The first is the irreversibility of a death penalty. And the second is the fact that different judicially trained minds can arrive at conclusions which, on the same facts, can be diametrically opposed to each other.” However, despite this judicial deliberation, a deeper question has recently emerged before the Apex Court: do later developments justify reopening death penalty cases after exhaustion of all judicial remedies and executive clemency? This article, while touching on shifting judicial views on capital punishment, examines this friction between procedural justice and institutional finality.

Matters begin with Bachan Singh (1980) when the court while upholding the constitutional validity of capital punishment strongly endorsed ‘wide’ judicial discretion, emphasising the inherent sensitivity and subjectivity of such cases. Instead of rigid guidelines it advocated a ‘balancing’ approach, warning that strict frameworks could constrain judicial discretion and undermine the nuanced assessment required in these cases.

The Court, however, diverged from this stance in Santosh Kumar Bariyar (2009) by subjecting the death penalty to a rigorous Article 14 (on equality before law) analysis and introducing standards like the ‘principle of prudence’, narrowing the space for unfettered discretion. As a sentencing doctrine, the principle of prudence positioned life imprisonment as the ‘normative rule’ and death penalty as a narrow exception, especially in cases where doubt or procedural irregularity existed. This endorsed a more structured, rule-based approach.

This judicial inclination matured further in Manoj (2022), wherein the Court emphasized the importance of a comprehensive review of mitigating circumstances, ranging from psychological reports to prison behaviour, prior to sentencing an individual to death.

Manoj, which essentially dilutes and compartmentalises judicial discretion in such cases, was a thorough revision of India’s death penalty framework. It reflected internal judicial evolution and alignment with international norms. The 262nd Law Commission Report (2015), for instance, highlighted the persistent structural and systemic deficiencies in the legal system of India within which capital punishment operated. These issues resonated with the judiciary’s push for systemic reforms. In parallel, India’s commitment to international standards, particularly the UN General Assembly Resolution 62/14985, also mandated its adherence to the minimum safeguards for death row convicts outlined in the Economic and Social Council resolution 1984/50 (annexe).

As jurisprudence regarding the death penalty grows more structured and rights-oriented, its reach has spread from ‘sentencing policy’ to ‘post-conviction proceedings’, where “procedural fairness” is now the focus. This changing jurisprudence has led to a critical constitutional issue before the Supreme Court – whether death row convicts can seek to ‘reopen’ their case under Article 32 (writ jurisdiction) after the sentence has been confirmed.

This question reopens debate on finality in death penalty cases.

The issue gained prominence in 2024 following the petition by Dupare, a convict sentenced to death. The Supreme Court affirmed his conviction in 2014 and rejected his review petition in 2017. In 2023, his mercy petition was also rejected. Nonetheless, Dupare again reaches the Supreme Court requesting reconsideration of his sentence given changing judicial policies on capital punishment. He invokes Article 32 of the Indian Constitution, which provides writ remedies, to reconsider his sentence in the light of the Manoj (2022) judgment.

While Article 32 has traditionally been used to challenge executive or legislative encroachment, courts have hitherto avoided invoking it to reopen final judicial verdicts. This case, however, has prompted a serious debate in the Court. The defence contends that standards laid down in Manoj requires a re-examination of Dupare’s sentence, emphasising that justice must adapt to evolving constitutional and legal standards. Empirical research supports this claim. A survey by ‘Project 39A’ found that over half of 215 death penalty cases lacked proper consideration of mitigating factors – raising questions on their fairness and reemphasizing the need for reconsidering such cases. The prosecution, however, contends that reopening cases under Article 32 threatens judicial finality and risks setting a precedent that destabilises the system.

The matter remains unsettled and sub-judice. Where the penalty is irreversible, must the process be rigid? As the Court determines whether Article 32 permits a new hearing in a death penalty case, it has defining choice: to affirm procedural finality or to recognize that justice, especially in capital cases, must be open to re-examination. Logical speculation of judicial trends points to revaluation. But how the Court balances the instability that follows it will certainly test judicial adaptability.