Can revisit death penalty under Article 32, says Supreme Court

The three-judge bench, however, cautioned that such a right provided to a death row convict should not be misused as an occasion to rehear the entire case

The Supreme Court on Monday held that it can revisit a death sentence on a writ petition filed under Article 32 of the Constitution, which gives power to the top court to enforce fundamental rights of citizens.

The Supreme Court held that the petition under Article 32 may look into the correctness of the sentence by examining whether the convict deserves a lesser punishment in the light of mitigating circumstances, which could include a psychological evaluation (HT)

The decision passed by a three-judge bench, however, cautioned that such a right provided to a death row convict should not be misused as an occasion to rehear the entire case. Instead, the court held that the petition under Article 32 may look into the correctness of the sentence by examining whether the convict deserves a lesser punishment in the light of mitigating circumstances, which could include a psychological evaluation.

The bench of justices Vikram Nath, Sanjay Karol and Sandeep Mehta held, “In cases related to capital punishment, the corrective power can be invoked by this court under Article 32.”

The decision came on a petition filed by one Vasant Sampat Dupare who is on death row for the rape and murder of a four-year-old minor. His conviction and sentence was upheld by the top court in 2014 and a review petition against the said decision was dismissed in 2017.

The present decision becomes significant as till date, a final decision of the top court could be challenged by filing a review petition, often heard in chambers (unlike in open court). By holding that a writ petition is maintainable, the court has effectively provided a death row convict an added layer of appeal where all mitigating circumstances can be gone into one last time, which can save the convict from the gallows. Interestingly, such a hearing will be in open court where the convict can be represented by a lawyer of his/her choice.

To be sure, a review petition is maintainable on limited grounds where the convict must show an “error apparent” in the decision of the top court or any omission of fact that will have a bearing on the final verdict. In the event a review petition is dismissed, the ultimate judicial recourse is to file a curative petition.

Adding a caveat, the bench held, “We add a word of caution that the exception cannot become a ground for reopening of concluded matters. It will be applicable only where there is breach of procedural safeguards.” A detailed copy of the judgment is not yet out.

The court set aside its May 2017 order dismissing Dupare’s review petition and directed the matter to be reheard on the issue of sentence alone. “The finding on conviction is left untouched,” the court held as it directed the matter to be posted before the Chief Justice of India (CJI) for passing necessary orders on listing of the case.

Dupare had approached the court citing a 2022 decision of the top court in Manoj v State of Rajasthan which mandated psychiatric and psychological evaluation of the death row convict to be considered as part of the mitigating factors for considering an alternative punishment to death.

While dismissing his review petition, the top court held, “The injuries caused on the minor girl are likely to send a chill in the spine of the society and shiver in the marrows of human conscience. He had battered her to death by assaulting her with two heavy stones. The injured minor girl could not have shown any kind of resistance. It is not a case where the accused had a momentary lapse. It is also not a case where the minor child had died because of profuse bleeding due to rape but because of the deliberate cruel assault by the appellant.”

HIs conduct post the incident where he showed no remorse was another factor that weighed with the court to award him capital punishment. The court came to the conclusion, “The criminality of the conduct of the appellant is not only depraved and debased, but can have a menacing effect on the society. It is calamitous.”

Dupare was 47 years of age at the time of commission of crime in 2008. After the dismissal of his review petition, he filed mercy petitions before the Maharashtra governor and the President, both ending in dismissal in 2022 and 2023. It was then that Dupare filed a petition before the top court.