The Supreme Court in late August through its judgment in Vasanta Sampat Dupare v. Union of India made a monumental shift in its death penalty jurisprudence. The Court recognised that the failure to comply with death penalty sentencing procedures is a violation of fundamental rights that would result in setting aside the death sentence. Embodying Justice S B Sinha’s vision in Santosh Bariyar v. State of Maharashtra (May 2009), this judgment anchors the death penalty sentencing process firmly within the constitutional guarantees of equality, fairness, and due process. This is no small shift. It transforms how we understand the relationship between administration of the death penalty and demands of constitutional justice.
To appreciate the weight of this development, we must revisit the sentencing law that was laid down in Bachan Singh v. State of Punjab (1980). While upholding the constitutional validity of the death penalty, the Supreme Court held that death penalty cases should be adjudicated in a certain manner. Clarifying the law laid down in the 1973 CrPC, the Court ruled that judges will have to consider circumstances of the crime and the accused when arriving at “special reasons” required to impose a death sentence. Over four decades of death penalty adjudication in India is a history of widespread non-compliance with what was contemplated in Bachan Singh.
Despite the validity of the death penalty being conditional on adherence to the procedures laid down in Bachan Singh, courts at all levels have focused almost exclusively on the crime, neglecting the personal circumstances of the accused. Many benches of the Supreme Court have criticised this trend. But it was Justice Sinha, in Bariyar, who took the critical step of framing this failure as a constitutional breach and not just judicial oversight. He reasoned that sentencing in death penalty cases must follow “constitutional prescriptions in full force.” But he stopped short of declaring that such breaches must result in death sentences being set aside.
Much like other countries that retain capital punishment, the death sentence in India is reserved for the poor and marginalised. Recognising the inability of such defendants to bring forth information necessary for sentencing, there was increasing recognition that judges must seek such information. Such a proactive role for judges was reaffirmed by a three-judge bench decision in Manoj v. State of Madhya Pradesh (May 2022). The Court issued guidelines to ensure that judges have meaningful information about the accused during sentencing. It mandated the state to submit reports on personal circumstances of the accused by a probation officer, a psychological and psychiatric assessment, and conduct in prison. This was in addition to any report submitted by the defence team. The Manoj guidelines promised to bring sentencing closer to the ideals articulated in Bachan Singh and Bariyar.
The plain truth, however, is that the Manoj guidelines have failed to have any real impact on the state of capital sentencing in India’s trial courts. Our research at The Square Circle Clinic reveals that nearly 94 per cent of the death sentences imposed by trial courts after the Manoj guidelines were propounded are in gross violation of these guidelines. While Manoj provides guidance to judges to collect circumstances relating to the accused, there were no consequences for breaching the guidelines. And, this is where the recent ruling in Dupare assumes great significance.
For the first time, the Court has recognised that a breach of sentencing procedure and Manoj guidelines is not a mere irregularity but a violation of fundamental rights. Sentencing that disregards the Manoj protocol is unconstitutional because it deprives the accused of the right to life under Article 21 of the Constitution. In concrete terms, this means that death sentences imposed in violation of Manoj will be set aside. Also, since the Manoj guidelines constitute a “substantial change in the law,” it will have retrospective effect. Prisoners sentenced to death even before Manoj was decided can now demand fresh sentencing hearings that comply with sentencing requirements.
For seven death row prisoners, including the petitioner in Dupare, the decision brings immediate reprieve. But the ripple effects are much wider. Nearly 600 prisoners currently on death row in India could potentially benefit from this ruling, given the routine disregard of sentencing procedure. The Court’s declaration that the Manoj protocol is now an “indispensable component” of a “meaningful, effective, and real” sentencing hearing transforms what was once seen as judicial guidance into a constitutional guarantee — guarantees whose breach must result in a setting aside of the death sentence.
The Dupare ruling marks a momentous shift in India’s constitutional jurisprudence on the death penalty. By elevating sentencing safeguards to the status of fundamental rights, the Court has reaffirmed that the administration of the death penalty cannot escape the rigours of equality, fairness, and due process. It narrows the constitutional space within which the death penalty can survive. The Court has brought to fruition Justice Sinha’s vision in Bariyar: That every sentencing decision in a death penalty case must bear the full weight of constitutional values.
The writer is Director (Criminalisation and Punishment) at The Square Circle Clinic (TSCC), NALSAR University of Law, Hyderabad. TSCC (formerly Project 39A) has represented Dupare since May 2015 and briefed Senior Advocate Gopal Sankaranarayanan in this writ petition. Views expressed are personal
