Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.

This extract is taken from Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 :
1984 SCC (L&S) 389 at page 184
11. The next preliminary objection urged by the learned Additional Solicitor-General on
behalf of the State of Haryana and Mr Phadke on behalf of one of the mine lessees was that the
Court had no power to appoint either Mr Ashok Srivastava and Mr Ashok Panda or Mr
Patwardhan as Commissioners and the reports made by them had no evidentiary value since
what was stated in the reports was based only on ex parte statements which had not been tested
by cross-examination. The learned Additional Solicitor-General as also Mr Phadke relied on
Order 46 of the Supreme Court Rules, 1966 which, as its heading shows, deals with
commissions and contended that since the commissions issued by the Court in the present case
did not fall within the terms of any of the provisions of Order XLVI, they were outside the
scope of the power of the Court and the Court was not entitled to place any reliance on their
reports for the purpose of adjudicating the issues arising in the writ petition. This argument,
plausible though it may seem at first sight, is in our opinion not well founded and must be
rejected. It is based upon a total misconception of the true nature of a proceeding under Article
32 of the Constitution. Article 32 is so frequently used by lawyers and Judges for enforcement
of fundamental rights without any preliminary objection against its invocation being raised on
behalf of the State, that we have rarely any occasion to examine its language and consider how
large is the width and amplitude of its dimension and range. We are so much accustomed to
the concepts of Anglo-Saxon jurisprudence which require every legal proceeding including a
proceeding for a high prerogative writ to be cast in a rigid or definitive mould and insist on
observance of certain well-settled rules of procedure, that we implicitly assume that the same
sophisticated procedural Rules must also govern a proceeding under Article 32 and the
Supreme Court cannot permit itself to be freed from the shackles of these Rules even if that be
necessary for enforcement of a fundamental right. It was on the basis of this impression fostered
by long association with the Anglo-Saxon system of administration of justice that for a number
of years this Court had taken the view that it is only a person whose fundamental right is
violated who can approach the Supreme Court for relief under Article 32 or in other words, he
must have a cause of action for enforcement of his fundamental right. It was only in the year
1981 in the Judges' Appointment and Transfer case [1981 Supp SCC 87 : S.P. Gupta v. Union
of India, (1982) 2 SCR 365] that this Court for the first time took the view that where a person
or class of persons to whom legal injury is caused by reason of violation of a fundamental right
is unable to approach the court for judicial redress on account of poverty or disability or socially
or economically disadvantaged position, any member of the public acting bona fide can move
the court for relief under Article 32 and a fortiorari, also under Article 226, so that the
fundamental rights may become meaningful not only for the rich and the well-to-do who have
the means to approach the court but also for the large masses of people who are living a life of
want and destitution and who are by reason of lack of awareness, assertiveness and resources
unable to seek judicial redress. This view which we took in the Judges' Appointment and
Transfer case [1981 Supp SCC 87 : S.P. Gupta v. Union of India, (1982) 2 SCR 365] is clearly
within the terms of Article 32 if only we look at the language of this article uninfluenced and
uninhibited by any preconceptions and prejudices or any preconceived notions. Article 32
insofar as it is material is in the following terms:
“32. (1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writ in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.”
While interpreting Article 32, it must be borne in mind that our approach must be guided not
by any verbal or formalistic canons of construction but by the paramount object and purpose
for which this article has been enacted as a fundamental right in the Constitution and its
interpretation must receive illumination from the trinity of provisions which permeate and
energise the entire Constitution, namely, the preamble, the Fundamental Rights and the
Directive Principles of State Policy. Clause (1) of Article 32 confers the right to move the
Supreme Court for enforcement of any of the fundamental rights, but it does not say as to who
shall have this right to move the Supreme Court nor does it say by what proceedings the
Supreme Court may be so moved. There is no limitation in the words of clause (1) of Article
32 that the fundamental right which is sought to be enforced by moving the Supreme Court
should be one belonging to the person who moves the Supreme Court nor does it say that the
Supreme Court should be moved only by a particular kind of proceeding. It is clear on the plain
language of clause (1) of Article 32 that whenever there is a violation of a fundamental right,
anyone can move the Supreme Court for enforcement of such fundamental right. Of course,
the Court would not, in exercise of its discretion, intervene at the instance of a meddlesome
interloper or busybody and would ordinarily insist that only a person whose fundamental right
is violated should be allowed to activise the Court, but there is no fetter upon the power of the
Court to entertain a proceeding initiated by any person other than the one whose fundamental
right is violated, though the Court would not ordinarily entertain such a proceeding, since the
person whose fundamental right is violated can always approach the Court and if he does not
wish to seek judicial redress by moving the Court, why should someone else be allowed to do
so on his behalf. This reasoning however breaks down when we have the case of a person or
class of persons whose fundamental right is violated but who cannot have resort to the Court
on account of their poverty or disability or socially or economically disadvantaged position and
in such a case, therefore, the Court can and must allow any member of the public acting bona
fide to espouse the cause of such person or class of persons and move the Court for judicial
enforcement of the fundamental right of such person or class of persons. This does not violate,
in the slightest measure, the language of the constitutional provision enacted in clause (1) of
Article 32.
Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, 1963 SCC OnLine
SC 52.

This extract is taken from Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, 1963
SCC OnLine SC 52 : (1964) 1 SCR 561 : AIR 1963 SC 1638 : (1964) 2 SCJ 715
57. In deciding the question as to whether a given religious practice is an integral part of
the religion or not, the test always would be whether it is regarded as such by the community
following the religion or not. This formula may in some cases present difficulties in its
operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one
section of the community claims that while performing certain rites white dress is an integral
part of the religion itself, whereas another section contends that yellow dress and not the white
dress is the essential part of the religion, how is the Court going to decide the question? Similar
disputes may arise in regard to food. In cases where conflicting evidence is produced in respect
of rival contentions as to competing religious practices the Court may not be able to resolve
the dispute by a blind application of the formula that the community decides which practice in
an integral part of its religion, because the community may speak with more than one voice
and the formula would, therefore, break down. This question will always have to be decided
by the Court and in doing so, the Court may have to enquire whether the practice in question
is religious in character and if it is, whether it can be regarded as an integral or essential part
of the religion, and the finding of the Court on such an issue will always depend upon the
evidence adduced before it as to the conscience of the community and the tenets of its religion.
It is in the light of this possible complication which may arise in some cases that this Court
struck a note of caution in the case of Dungah Committee Ajmer v. Syed Hussain Ali [(1962) 1
SCR 383 at p. 411] and observed that in order that the practices in question should be treated
as a part of religion they must be regarded by the said religion as its essential and integral part;
otherwise even purely secular practices which are not an essential or an integral part of religion
are apt to be clothed with a religious form and may make a claim for being treated as religious
practices within the meaning of Article 26.
Problems & Miseries of Migrant Labourers, In re, (2020) 7 SCC 181.

This extract is taken from Problems & Miseries of Migrant Labourers, In re, (2020) 7 SCC
181 : 2020 SCC OnLine SC 492 at page 193
31. It has also been brought before us that various High Courts have also taken notice of
cases of migrant labourers. The High Courts being constitutional courts are well within their
jurisdiction to take cognizance of violation of fundamental rights of migrant workers and we
have no doubt that those proceedings shall proceed after considering all aspects including the
response of authorities concerned.
Bachan Singh v. State of Punjab, (1980) 2 SCC 684.

This extract is taken from Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC
(Cri) 580 at page 750
205. In several countries which have retained death penalty, pre-planned murder for
monetary gain, or by an assassin hired for monetary reward is, also, considered a capital offence
of the first-degree which, in the absence of any ameliorating circumstances, is punishable with
death. Such rigid categorisation would dangerously overlap the domain of legislative policy. It
may necessitate, as it were, a redefinition of ‘murder’ or its further classification. Then, in some
decisions, murder by fire-arm, or an automatic projectile or bomb, or like weapon, the use of
which creates a high simultaneous risk of death or injury to more than one person, has also
been treated as an aggravated type of offence. No exhaustive enumeration of aggravating
circumstances is possible. But this much can be said that in order to qualify for inclusion in the
category of “aggravating circumstances” which may form the basis of “special reasons” in
Section 354(3), circumstance found on the facts of a particular case, must evidence aggravation
of an abnormal or special degree.
This extract is taken from Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC
(Cri) 580 at page 750
206. Dr Chitale has suggested these mitigating factors:
“Mitigating circumstances.—In the exercise of its discretion in the above cases, the
court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or
emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced
to death.
(3) The probability that the accused would not commit criminal acts of violence as
would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State
shall by evidence prove that the accused does not satisfy the conditions (3) and (4)
above.
(5) That in the facts and circumstances of the case the accused believed that he was
morally justified in committing the offence.
 (6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and
that the said defect impaired his capacity to appreciate the criminality of his conduct.”
This extract is taken from Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC
(Cri) 580 at page 750
207. We will do no more than to say that these are undoubtedly relevant circumstances and
must be given great weight in the determination of sentence. Some of these factors like extreme
youth can instead be of compelling importance. In several States of India, there are in force
special enactments, according to which a “child”, that is, “a person who at the date of murder
was less than 16 years of age”, cannot be tried, convicted and sentenced to death or
imprisonment for life for murder, nor dealt with according to the same criminal procedure as
an adult. The special Acts provide for a reformatory procedure for such juvenile offenders or
children.
Narotam Singh v. State of Punjab, (1979) 4 SCC 505.

This extract is taken from Narotam Singh v. State of Punjab, (1979) 4 SCC 505 : 1980 SCC
(Cri) 113 at page 505
V.R. KRISHNA IYER, J.— The law of crimes perverts itself on occasions into the crime of
law if narrow legalism overwhelms social justice. This criticism applies to the field of penology
as well, and so the finer, more perceptive and sociologically relevant approach to punishment,
when crime has been proved, is to take a holistic, realistic and humanistic size-up action as to
promote rehabilitation without offending community conscience. Taking this stance, we
responded to counsel's submission in the above appeal which relates to a conviction of the
appellant for bigamy, and the result has been the composition of the offence and prayer for
permission of the Court in that behalf which we accord.
Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287.

This extract is taken from Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287 : 1977 SCC
(Cri) 496 at page 290
9. Western jurisprudes and sociologists, from their own angle have struck a like note. Sir
Samuel Romilly, critical of the brutal penalties in the then Britain, said in 1817: “The laws of
England are written in blood”. Alfieri has suggested: “society prepares the crime, the criminal
commits it”. George Nicodotis, Director of Criminological Research Centre, Athens, Greece,
maintains that crime is the result of the lack of the right kind of education. It is thus plain that
crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State
has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to
be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in
penology is the individual, and the goal is salvaging him for society. The infliction of harsh
and savage punishment is thus a relic of past and regressive times. The human today views
sentencing as a process of reshaping a person who has deteriorated into criminality and the
modern community has a primary stake in the rehabilitation of the offender as a means of social
defense. We, therefore, consider a therapeutic, rather than an “in terrorem” outlook, should
prevail in our Criminal Courts, since brutal incarceration of the person merely produces
laceration of his mind. In the words of George Bernard Shaw: “If you are to punish a man
retributively, you must injure him. If you are to reform him, you must improve him and, men
are not improved by injuries.” We may permit ourselves the liberty to quote from Judge Sir
Jeoffrey Streatfield: “If you are going to have anything to do with the Criminal courts, you
should see for yourself the conditions under which prisoners serve their sentences”. In the same
strain a British Buddhist-Christian Judge, speaking to a BBC reporter underscored the role of
compassion:
“Circuit Judge Christmas Humphreys told the BBC reporter recently that a Judge looks
‘at the man in the dock in a different way, not just a criminal to be punished, but a fellow
human being, another form of life who is also a form of the same one life as oneself’. In
the context of karuna and punishment for karma the same Judge said: ‘The two things are
not incompatible. You do punish him for what he did, but you bring in a quality of what is
sometimes called mercy, rather than an emotional hate against the man for doing something
harmful. You feel with him, that is what compassion means’.”
 (The Listener, November 25, 1976, p. 692.)

This extract is taken from Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287 : 1977 SCC
(Cri) 496 at page 291
10. Incidentally, we may glance at the prison system which leaves much to be desired in
the sense of humanizing and reforming the man we call criminal.
This extract is taken from Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287 : 1977 SCC
(Cri) 496 at page 293
17. It will thus be seen that there is a great discretion vested in the Judge, especially when
pluralistic factors enter his calculations. Even so, the Judge must exercise this discretionary
power, drawing his inspiration from the humanitarian spirit of the law, and living down the
traditional precedents which have winked at the personality of the crime-doer and been swept
away by the features of the crime. What is dated has to be discarded. What is current has to be
incorporated. Therefore innovation, in all conscience, is in the field of judicial discretion.
Satish v. State of U.P., (2021) 14 SCC 580.

This extract is taken from Satish v. State of U.P., (2021) 14 SCC 580 : 2020 SCC OnLine
SC 791 at page 587
19. It would be gainsaid that length of the sentence or the gravity of the original crime
cannot be the sole basis for refusing premature release. Any assessment regarding predilection
to commit crime upon release must be based on antecedents as well as conduct of the prisoner
while in jail, and not merely on his age or apprehensions of the victims and witnesses. [Zahid
Hussein v. State of W.B., (2001) 3 SCC 750 : 2001 SCC (Cri) 631] As per the State's own
affidavit, the conduct of both the petitioners has been more than satisfactory. They have no
material criminal antecedents, and have served almost 16 years in jail (22 years including
remission). Although being about 54 and 43 years old, they still have substantial years of life
remaining, but that does not prove that they retain a propensity for committing offences. The
respondent State's repeated and circuitous reliance on age does nothing but defeat the purpose
of remission and probation, despite the petitioners having met all statutory requirements for
premature release.
This extract is taken from Satish v. State of U.P., (2021) 14 SCC 580 : 2020 SCC OnLine
SC 791 at page 586
Analysis
14. Whilst it is undoubtedly true that society has a right to lead a peaceful and fearless life,
without free roaming criminals creating havoc in the lives of ordinary peace loving citizens.
But equally strong is the foundation of reformative theory which propounds that a civilised
society cannot be achieved only through punitive attitudes and vindictiveness; and that instead
public harmony, brotherhood and mutual acceptability ought to be fostered. Thus, first time
offenders ought to be liberally accorded a chance to repent their past and look forward to a
bright future. [Maru Ram v. Union of India, (1981) 1 SCC 107 : 1981 SCC (Cri) 112]
Romila Thapar v. Union of India, (2018) 10 SCC 753.

This extract is taken from Romila Thapar v. Union of India, (2018) 10 SCC 753 : (2019) 1
SCC (Cri) 638 : 2018 SCC OnLine SC 1691 at page 778
DR D.Y. CHANDRACHUD, J. (dissenting)— The intersection between criminal law and
constitutional rights has led to the evolution of judicial precedent which originates in this Court.
Our recent decisions reiterate the value of individual dignity as essential to a democratic way
of life. But lofty edicts in judicial pronouncements can have no meaning to a citizen unless the
constitutional quest for human liberty translates into securing justice for individuals whose
freedom is under threat in specific cases. The role of the Court involves particularly sensitive
balances when the State seeks to curb freedom to investigate perceived breaches involving
offences against the State. Custodial interrogation involves the balancing of diverse and often
conflicting values : the effective administration of criminal justice, an impartial process of
investigation and the liberty and reputation of the individual. The invocation of our jurisdiction
under Article 32 in this case is founded on the grievance that a group of five human rights
activists is sought to be persecuted for espousing the cause of the marginalised which is
considered to be “unpopular”. Conscious as the Court is of the public interest in the effective
administration of criminal justice, it cannot be oblivious to the overriding constitutional
concern to secure the dignity of the individual. The key to the balance between the two lies in
a fair, independent and impartial investigation of crime. As a matter of principle, I am unable
to agree with the views expressed by the learned Chief Justice and my learned Brother A.M.
Khanwilkar, J.
Daryao v. State of U.P., 1961 SCC OnLine SC 21.

This extract is taken from Daryao v. State of U.P., 1961 SCC OnLine SC 21 : (1962) 1 SCR
574 : (1962) 1 SCJ 702 : AIR 1961 SC 1457
26. We must now proceed to state our conclusion on the preliminary objection raised by
the respondents. We hold that if a writ petition filed by a party under Article 226 is considered
on the merits as a contested matter and is dismissed the decision thus pronounced would
continue to bind the parties unless it is otherwise modified or reversed by appeal or other
appropriate proceedings permissible under the Constitution. It would not be open to a party to
ignore the said judgment and move this Court under Article 32 by an original petition made on
the same facts and for obtaining the same or similar orders or writs. If the petition filed in the
High Court under Article 226 is dismissed not on the merits but because of the laches of the
party applying for the writ or because it is held that the party had an alternative remedy
available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent
petition under Article 32 except in cases where and if the facts thus found by the High Court
may themselves be relevant even under Article 32. If a writ petition is dismissed in limine and
an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would
depend upon the nature of the order. If the order is on the merits it would be a bar; if the order
shows that the dismissal was for the reason that the petitioner was guilty of laches or that he
had an alternative remedy it would not be a bar, except in cases which we have already
indicated. If the petition is dismissed in limine without passing a speaking order then such
dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal
in limine even without passing a speaking order in that behalf may strongly suggest that the
Court took the view that there was no substance in the petition at all; but in the absence of a
speaking order it would not be easy to decide what factors weighed in the mind of the Court
and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on
merits and as such constitutes a bar of res judicata against a similar petition filed under Article
32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under
Article 32, because in such a case there has been no decision on the merits by the Court. We
wish to make it clear that the conclusions thus reached by us are confined only to the point of
res judicata which has been argued as a preliminary issue in these writ petitions and no other.
It is in the light of this decision that we will now proceed to examine the position in the six
petitions before us.