TEAM CODE: M113

MEMORIAL WRITING AND DRAFTING COMPETITION, 2020

Before

THE HON’BLE SUPREME COURT OF INDRAPRASTHA

SPECIAL LEAVE PETITION NUMBER _______ / 2020

FILED UNDER ARTICLE 136 OF

THE CONSTITUTION OF INDRAPRASTHA

IN THE CASE CONCERNING MURDER OF IN-LAWS U/S 302 OF IPC

IN THE MATTER BETWEEN:

MS. SHANAYA
… PETITIONER

VERSUS

UNION OF INDRAPRASTH …
RESPONDENT

WRIT PETITION NUMBER _______ / 2020

FILED UNDER ARTICLE 32 OF

THE CONSTITUTION OF INDRAPRASTHA

IN THE CASE CONCERNING CONSTITUTION VALIDITY OF CAPITAL PUNISHMENT

IN THE MATTER BETWEEN:

HUMANS AGAINST DEATH PENALTY (NGO) …

PETITIONER

VERSUS
UNION OF INDRAPRASTH …
RESPONDENT

MEMORIAL for PETITIONER

 TABLE OF CONTENTS

TABLE OF CONTENTS...........................................................................................................I

INDEX OF AUTHORITIES...................................................................................................IV

INDEX OF ABBREVIATIONS...........................................................................................VIII

STATEMENT OF JURISDICTION.......................................................................................IX

STATEMENT OF FACTS.......................................................................................................X

QUESTIONS PRESENTED....................................................................................................XI

SUMMARY OF ARGUMENTS...........................................................................................XII

ARGUMENTS ADVANCED...................................................................................................1

WHETHER THE PETITIONS FILED BY MS. SHANAYA AND AN NGO NAMED

HUMANS AGAINST DEATH PENALTY UNDER ARTICLE 136 AND ARTICLE 32
RESPECTIVELY ARE MAINTAINABLE OR NOT?............................................................1

I. THE PETITION FILED BY MS. SHANAYA AGAINST THE ORDER PASSED BY HIGH COURT
UNDER ART. 136 IS MAINTAINABLE......................................................................................1

A. The matter involves question of law of general public importance.........................1

B. The matter involves substantial question of law and gross injustice.......................2

SUBSTANTIAL QUESTION OF LAW IS INVOLVED..................................................................2

FINDING OF FACTS MAY GIVE RISE TO SUBSTANTIAL QUESTION OF LAW............................3

II. THE PETITION FILED BY NGO NAMED HUMANS AGAINST DEATH PENALTY UNDER
ART. 32 IS MAINTAINABLE.....................................................................................................4

A. Fundamental Rights have been violated..................................................................4

VIOLATION OF RIGHT ENSHRINED UNDER ART. 14 OF THE CONSTITUTION.......................4

VIOLATION OF THE RIGHT TO LIFE AND LIBERTY ENSHRINED UNDER ART. 21...................4

VIOLATION OF THE RIGHT ENSHRINED UNDER ART. 19 OF THE CONSTITUTION.................4

B. The petition has been filed in public interest and therefore maintainable as Public
Interest Litigation...............................................................................................................5

C. Alternative Remedy Not A Bar...............................................................................5

WHETHER MS. SHANAYA IS GUILTY OF MURDER OR NOT.......................................6

 I. MURDER WAS AN ACCIDENT AND LACKS MENS REA.....................................................6

II. NO ACTUS REUS ON MS. SHANAYA’S PART..................................................................7

III. THE EVIDENCES ARE IN ADMISSIBLE UPON WHICH THE COURT HAD RELIED..............7

IV. THERE IS A REASONABLE DOUBT WHILE PROVING THE GUILT OF MS. SHANAYA......8

WHETHER CAPITAL PUNISHMENT OR DEATH PENALTY AS A PUNISHMENT IS

CONSTITUTIONALLY VALID OR NOT?.............................................................................8

I. CAPITAL PUNISHMENT AWARDED IN THE PRESENT CASE IS NOT IN ACCORDANCE WITH

THE PRINCIPLE OF RAREST OF RARE DOCTRINE....................................................................9

A. Ms. Shanaya is not guilty of murdering her in-laws and Mr. Pradip.......................9

B. The facts found by the courts would not be considered "special reasons" as
required under Sec. 354(3) of the CrPC, 1973.................................................................10

II. THE CAPITAL PUNISHMENT IS ITSELF CONSTITUTIONALLY INVALID...........................11

A. It is against the Right to Equality enshrined under Art. 14 of the Constitution.. . .11

THE CLASSIFICATION HAS NOT BEEN FOUNDED ON AN INTELLIGIBLE DIFFERENTIA....12

THERE IS NO RATIONAL NEXUS BETWEEN CLASSIFICATION AND OBJECTIVE SOUGHT.. .12

B. It violates All the Fundamental Rights enshrined Under Art. 19 of the

Constitution......................................................................................................................13

TESTS OF REASONABLE RESTRICTIONS...........................................................................13

C. It violates right to life under Art. 21 of the constitution........................................14

IT IS AGAINST THE RIGHT TO PERSONAL LIBERTY OF AN INDIVIDUAL...........................14

IT VIOLATES RIGHT TO DIE WITH DIGNITY......................................................................15

IT VIOLATES RIGHT TO LIVE WITH HUMAN DIGNITY........................................................15

IT IS IN VIOLATION OF ONE’S RIGHT TO HEALTH...........................................................16

Prayer.......................................................................................................................................17
 INDEX OF AUTHORITIES

 CONSTITUTION OF INDIA, 1950.

. SUP  Supreme Court Cases  P

REME
COUR
T
CASE
SS.
NO.
  Achyut Adhicary v. West Bengal, AIR 1963 SC 1039  3
1.
  Anuj Garg v. Hotel Association of India, AIR 2008 SC 663  1
2.
  Bachan Singh v. State of Punjab, AIR 1980 SC 898  1
3.
  Balwant Singh v. State of Punjab, 1994 Supp (2) SCC 67  1
4.
  Bandhua Mukti Morcha v. Union of India, (1997) 10 SCC 549  1
5.
  C.C.E v. Standard Motor Products, AIR 1989 SC 1298  2
6.
  Chameli Singh v. State of Uttar Pradesh, 1995 Supp (6) SCR 827  4
7.
  Chintaman Rao v. State of M.P., AIR 1951 SC 118  5
8.
  Common Cause (A Regd. Society) v. Union of India, (2018) 5  1
9. SCC 1

  D.A.V College v. State of Punjab, AIR 1971 SC 1731  5

1

  Dale & Carrington Invt. Ltd. v. P.K. Prathapan, (2005) 1 SCC 212  2
1

  Ediga Anamma v. State of Andhra Pradesh, AIR 1973 S.C. 774  1

1
  Francis Coralie v. Union Territory of Delhi, 1981 SCR (2) 516  1
1

  Gian Kaur v. State of Punjab, 1996 SCC (2) 648  1

1

  Harbansal Sahnia v. Indian Oil Corporation Ltd., AIR 2003 SC  5

1 2120

  Haryana State Industrial Corp. v. Cork Mfg. Co., (2007) 8 SCC  1

1 359

  Hussainara Khatoon and others v. Home Secretary State of Bihar,  1

1 1979 AIR 1369

  Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai,  2

1 (2004) 3 SCC 214

  John Vallamatom v. Union of India, AIR 2003 SC 2902  1

1

  K. Thimmappa v. Chairman, Central Board of Directors, (2001) 2  1

2 SCC 259

  K.K. Kouchunni v. State of Madras, AIR 1959 SC 725  5

2

  Kathi Ranning Rawat v. The State of Saurashtra, AIR 1952 SC  3

2 123

  Kharak Singh v. State of U.P., 1964 SCR (1) 332  1

2

  M.H. Hoskot v. State of Maharashtra,1978 AIR 1548  1

2

  Maganbhai v. Union of India, AIR 1969 SC 783  5

2
  Maneka Gandhi v. Union of India, 1978 AIR 597  1
2

  National Legal Services Authority v. Union of India, (2014) 5  9

2 SCC 438

  Om Prakash Sood v. Union of India, Civil Appeal No. 9169 of  3

2 1996

  Paschim Banga Khet Mazdoor Samity v. State of West Bengal,  1

2 AIR 1996 SC 2426

  Pathumma and Others v. State Of Kerala And Others, 1978 SCR  1

3 (2) 537

  Pawan Kumar v. State of Haryana, (2003)11 SCC 241  2

3

  Prem Shankar Shukla v. Delhi Admn., 1980 AIR 1535  1

3

  Pritam Singh v. The State, AIR 1950 SC 169  3

3

  R. Balakrishna Pillai v. State of Kerala, AIR 2004 SC 1012  9

3

  Ram Piari v. Bhagwant, AIR 1990 SC 1742  3

3

  Ramakant Rai v. Madan Rai Cr LJ 2004 SC 36  8

3

  Roop Chand v. State of Punjab, AIR 1963 SC 1503  5

3

  Sangeet v. State of Haryana, (2013) 2 SCC 452  9

3
   Santosh Kumar v. State of Maharashtra, (2009) 6 SCC 498  9
3

  Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC  9

4 546

  Sher Singh v. State of Punjab, 1983 SCR (2) 582  4

4

  Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and  1

4 Manufacturing Co. Ltd., AIR 1962 SC 1314

  Sripur Paper Mills v. Comm. of Wealth Tax, AIR 1970 SC 1520  3

4

  State of Bombay v. United motors Ltd., AIR 1953 SC 252  5

4

  State of Punjab v. Rakesh Kumar (1998) Cr LJ 3604 (SC)  8

4

  Sunil Batra v. Delhi Administration, 1980 SCR (2) 557  1

4

  Union of India v. M.V. Valliappan, (1996) 6 SCC 259  1

4

 HIGH COURT CASES

 S  High Court Cases 

.
N
o
.
 1  Chakru Sattiah v. State of A.P., AIR 1960 AP 153 
.
 2  Mohan Singh v. State of Punjab, AIR 1965 Punj 291 
.
  3  Sumati Dayal v. CIT, (1995) 214 ITR 801 
.
 4  Vinod Kumar Bhutani v. State Thr. CBI, (2013) 136 DRJ 249 
.

  Foreign Cases  P
F

  Bugdaycay v. Home Secretary, [1987] AC 514  5

1.
  Furman v. Georgia, 408 U.S.238 (1972)  1
2.
  United States v. Currans, 290, F. 2 d 751 (3rd Cir. 1961)  1
3.


 STATUTES REFERRED
S. No. Statutes P. No.
1. Code of Criminal Procedure, 1973 4
2. Indian Penal Code, 1860 6, 7, 8, 14

 BOOKS REFERRED
S. No. Books
1. Basu D.D., Commentary of the Constitution of India, (8th ed., 2011), Vol.1. & Vol.2.

2. David Ormerod, Smith and Hogan Criminal Law, Twelfth Edition, Oxford (2008)
3. H.M. Seervai, Constitutional Law of India, Vol. 1, 832 (4th ed., 2010)

4. Halsbury’s Laws of India, Vol. 35, 564 (2nd ed., Lexis-Nexis Butterworth Wadhwa,
Nagpur, 2007)
5. I, Nelson R. A. Indian Penal Code, (10th Ed. 2008)
6. K.D. Gaur, Criminal Law - Cases and Material, 3rd ed.
 7. Ratanlal and Dheerajlal, The India Penal Code (32nd edn, Lexis Nexis Butterworths, 2010)
1753-83
8. Salmond, Jurisprudence (3rd ed. 1910)

9. Smith & Hogan, Criminal Law, 6th ed.

 DATABASES REFERRED
S. No. Database
1. http://www.scconline.com (last visited on 11th June, 2020).
2. http://www.manupatra.com (last visited on 9th June, 2020).
3. http://www.westlaw.org (last visited on 8th June, 2020).
4. http://www.indiankanoon.com (last visited on 11th June, 2020).
5. http://www.lexisnexis.com (last visited on 7th June, 2020).
6. http://www.judis.nic.in (last visited on 11th June, 2020).
7. http://lawcommissionofindia.nic.in (last visited on 28th May, 2020).

 MISCELLANEOUS
S. No. Documents Referred P. No.
1. 35th Report of Law Commission of India, 1967. 12
2. 262nd Report of Law Commission of India, 1969 13, 14
3. International Covenant on Civil and Political Rights, United Nations, 11
Treaty Series, vol. 999
 INDEX OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

¶ Paragraph
¶¶ Paragraphs
AIR All India Reporter
A.P. Andhra Pradesh
Art. Article
Bom. Bombay
Corp. Corporation
Cir. Circuit
CrPC Code of Criminal Procedure
Cri LJ / Cr LJ Criminal Law Journal
Del. Delhi High Court
DRJ Delhi Reported Journal
Ed. Edition
Govt. Government
HC High Court
Hon’ble Honourable
Ibid. Ibidium
IPC Indian Penal Code
No. Number
Ori. Orissa High Court
P&H Punjab and Haryana High Court
p. Page
pp. Pages
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec. Section
U.P. Uttar Pradesh
v. Versus
Vol. Volume
 STATEMENT OF JURISDICTION

The petitioners herein are Ms. Shanaya and Humans against death penalty (NGO). Under
Article 136 of the Constitution of Indraprastha, 1950, this Hon’ble Court has been vested, in
its discretion, to grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal in the
territory of India. In this case, the Petitioner No. 1 has preferred an appeal against the
impugned orders of the Hon’ble High Court.
Under Article 32 of the Constitution of Indraprastha, 1950, this Hon’ble Court has vested
with the duty to protect the citizens from any violation of their fundamental rights. In the
present case, the Petitioner No. 2 has approached this Hon’ble Court in apprehension of
violation of the Fundamental Rights.

Therefore, the Petitioners maintain that the jurisdiction of Article 136 and Article 32 of the
constitution, are applicable in the present case.
The present memorandum sets forth the facts, contentions and arguments in the present case
 STATEMENT OF FACTS

Ms. Shanaya married to Mr. Anshu On 01.01.2019, but of them are not happy. The primary
reason of Ms. Shanaya’s unhappiness being that Mr. Anshu did not agree to her request for
living separately. Unhappy with this she went to her father’s home for 2 weeks and after her
parents’ insistence she returned to her marital home on 21.04.2019. After she returned she
behaves very nicely with everyone and did not indulge in any fight with her in-laws.
On 01.05.2019, the chain of events that transpired that day are:
 Ms. Shanaya cooked the Dhokla around 3:15 PM. Ms. Shanaya served Dhokla in three
different plates and requested the house-help Mr. Pradip to give the same to her in-laws and
then left for her clinic to attend some urgent matter.
 At around 10 PM, Mr. Sushant complained of uneasiness and chest pain. He was rushed to the
hospital by Mr. Anshu. Immediately thereinafter, Ms. Susmita complained of similar chest
pain and after this Ms. Sonal was found unconscious. Both Ms. Sonal and Ms. Susmita were
taken to the same hospital with the help of Ms. Shanaya. All of them died in the hospital in
the same night. Further, on searching the areas nearby to the house of the deceased, one of the
police officials noticed Mr. Pradip lying in the open field. He was declared brought dead by
the doctor.
 Ms. Shanaya, mentioned to the police that Mr. Pradip’s phone was not reachable since early
evening. That he was last seen in the house at around 4 PM, whereas, normally he works till 9
PM. She also informed that Mr. Pradip seems to have poisoned her in-laws since Mr. Pradip
used to have feelings for Ms. Sonal and the same was not acceptable to Ms. Susmita and Mr.
Sushant. Even Ms. Sonal had publicly humiliated Mr. Pradip for having feelings for her just a
week before.
After, all procedural compliances were met, Ms. Shanaya was held guilty of murder of her in-
laws and Mr. Pradip and for attempt to murder of Mr. Anshu based on the evidence brought
on record, and the Court awarded death sentence to Ms. Shanaya which was later ratified by
HC which eventually prompted Ms. Shnaya to move the SC for relief. In the meantime, an
NGO named Humans against Death Penalty, filed a Petition before the Supreme Court
challenging the constitutional validity of capital punishment. Now both the matters are
clubbed together and this Hon’ble Court will take the matters for final hearing.
 QUESTIONS PRESENTED

I.
WHETHER THE PETITIONS FILED UNDER ART. 32 AND ART. 136 OF THE CONSTITUTION ARE
MAINTAINABLE OR NOT?

II.
WHETHER MS. SHANAYA IS GUILTY OF MURDER OF HER IN-LAWS AND ALSO GUILTY OF
ATTEMPT TO MURDER OF HER HUSBAND MR. ANSHU OR NOT?

III.
WHETHER THE CAPITAL PUNISHMENT IS CONSTITUTIONALLY VALID OR NOT?
 SUMMARY OF ARGUMENTS

I.
The Petitioner contended that the SLP filed under Art. 136 is maintainable on the basis of:
 That, the matter involves question of law of general public importance.
 That, the matter involves substantial question of law and gross injustice.
Also, if this Hon’ble Court does not intervene, it will result in gross injustice and that,
miscarriage of justice has already occurred, by the erring judgment of the HC, by putting its
reliance on some facts and hearsay evidences, with complete disregard for the fundamental
rights of the accused.
The Petitioner also contended that the present petition is maintainable under Art. 32 of the
Constitution, since, the state has the duty to protect Fundamental Rights of the people
guaranteed by our Constitution and capital Punishment violates those Fundamental Rights.

II.
It is humbly contended by the Petitioners that the accused is not guilty of murder as the
alleged crime which she had committed was Murder was really an Accident and lacks Mens
Rea under Sec 80 of IPC and thus she lacks the requisite Mens Rea to commit such a crime.
Furthermore the issue as to whether or not she had committed the Actus Reus must be put
into question as the direct evidence has several infirmaries and inconsistencies and leaves a
reasonable doubt. Hence the crime of murder cannot stand against the accused.

III.
It is humbly submitted before the Hon’ble Court that the Capital Punishment restricts the
Fundamental Rights enshrined under Part-III of the Constitution and is unreasonable. It
violates Art. 14, 19 and 21 of the convict person for which Supreme Court has itself said that
these Articles are of great importance and hence is Constitutionally Invalid.
Also, in the present case Ms. Shanaya (Petitioner in the present case) had not murdered her
in-laws and the real culprit was Mr. Pradip. Also, the facts found by the courts would not be
considered as "special reasons" as required under Sec. 354(3) of the CrPC, 1973 and does not
fall under the ambit of Principle of ‘Rarest of Rare’ Doctrine and ratification by High Court
of the death penalty imposed is erroneous and was done hastily.
 ARGUMENTS ADVANCED

WHETHER THE PETITIONS FILED BY MS. SHANAYA AND AN NGO NAMED

HUMANS AGAINST DEATH PENALTY UNDER ARTICLE 136 AND ARTICLE 32
RESPECTIVELY ARE MAINTAINABLE OR NOT?

It is humbly submitted before the Hon’ble Court that the instant matter is maintainable before
the Court of Law. The petitioner has all the essential ingredients to maintain the matter before
the apex Court. Though the Hon’ble Court has clubbed the matters, yet certain issues
regarding maintainability of the case must be highlighted before this Court to prevent any
miscarriage of justice.

I. THE PETITION FILED BY MS. SHANAYA AGAINST THE ORDER PASSED BY HIGH
COURT UNDER ART. 136 IS MAINTAINABLE.

It is humbly submitted before this Hon’ble Court that, the Special Leave Petition filed by the
petitioner, Ms. Shanaya is maintainable, as the matter involves a substantial question of law
of general public importance. If the SC does not intervene, it will result in gross injustice and
that, miscarriage of justice has already occurred, by the erring judgment of the HC 1, which
awarded death penalty to Ms. Shanaya without going into the merits of the case and by
putting its reliance on some facts2 and hearsay evidences,3 with complete disregard for the
fundamental rights of the people. Therefore, the special leave petition of the petitioner must
be accepted, so that the Hon’ble Court can use its wide jurisdiction conferred under Art. 136, 4
to correct the wrong done by the decision given by the HC.

A. The matter involves question of law of general public importance.

It is humbly submitted before the Hon’ble Court that the jurisdiction conferred under Art. 136
on the SC is corrective one and not a restrictive one5 and can be invoked when a question of
law of general public importance arises,6 by filing Special Leave Petition. It is well-settled
that illegality must not be allowed to be perpetrated and failure by the SC to interfere with the
1
Moot Proposition, ¶ 14.
2
Moot Proposition, ¶ 4.
3
Moot Proposition, ¶ 12.
4
Art. 136, The Constitution of India, 1950.
5
Haryana State Industrial Corp. v. Cork Mfg. Co., (2007) 8 SCC 359.
6
Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314
same would amount to allowing the illegality to be perpetuated, 7 therefore a duty is enjoined
upon the SC to exercise its power by setting right the illegality in the judgments.

Art. 136 provides residuary power to the SC to do justice where the court is satisfied that
injustice has been done.8 Illegality should not be allowed to be perpetrated merely for the
sake of upholding technicalities.9

In the instant matter, the death sentence awarded to Ms. Shanaya is erroneous and lacks
procedural aspects as death sentence should be given according to the Principle of “Rarest of
Rare” Doctrine to not violate the Fundamental Rights of the Petitioner enshrined under the
head of Part-III (Fundamental Rights) of the Constitution.

B. The matter involves substantial question of law and gross injustice.

It is humbly submitted by the petitioner before this Hon’ble Court that, the matter involves
substantial question of law as it concerns the violation of fundamental Right to Life and
Liberty and gross injustice has already been meted out by the decision of HC which has
hastily and arbitrarily awarded Death Penalty to Ms. Shanaya by deviating from the principle
of “Rarest of Rare” Doctrine.

SUBSTANTIAL QUESTION OF LAW IS INVOLVED

It is humbly submitted that where findings are entered without considering relevant materials
and without following proper legal procedure, interference of SC is called for. 10 In the instant
case, the Hon’ble HC has erred in deciding a very substantial question of law, related to right
to life of the people.

Whether a matter involves substantial question of law, depends on whether it is of general

public importance, which directly or substantially affects the rights of the parties, or it has
already been decided by the highest Court.11 It will, therefore, depend on the facts and
circumstance of each case whether a substantial question of law is involved in the case.12

7
Pawan Kumar v. State of Haryana, (2003)11 SCC 241; See also, H.M. Seervai, Constitutional Law of India,
Vol. 1, 832 (4th ed., Universal Law Publishing, New Delhi, 2010); See also, Halsbury’s Laws of India, Vol. 35,
564 (2nd ed., Lexis-Nexis Butterworth Wadhwa, Nagpur, 2007).
8
C.C.E v. Standard Motor Products, AIR 1989 SC 1298; See also, H.M. Seervai, Constitutional Law of India,
Vol. 2, 845 (4th ed., Universal Law Publishing, New Delhi, 2010).
9
Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214.
10
Dale & Carrington Invt. Ltd. v. P.K. Prathapan, (2005) 1 SCC 212.
11
Supra Note 6.
12
Sumati Dayal v. CIT, (1995) 214 ITR 801.
It is submitted that, the present case involves a matter of general public importance as it
directly and substantially affects the rights of the parties as the order is erroneous and
prejudicial to the interest of people and also the HC had erred in awarding the death penalty
by deviating from the principle of “Rarest of Rare” Doctrine which itself is a violation of
Fundamental Rights guaranteed by the Constitution. Also, HC has awarded the death
sentence by simply putting its reliance on the Hearsay evidences of the neighbours accusing
Ms. Shanaya of Murder13 and there was no concrete evidence available on record to prove the
guilt of Ms. Shanaya. Grave miscarriage of justice has occurred because of this serious and
flagrant violation of law has been committed by the HC 14 for which interference of the SC is
required.

FINDING OF FACTS MAY GIVE RISE TO SUBSTANTIAL QUESTION OF LAW

The SC is not precluded from going into the question of facts under Art. 136, if it considers it
necessary to do so.15 Art. 136 uses the words ‘in any cause or matter’. This gives widest
power to this court to deal with any cause or matter. 16 It is plain that when the SC reaches the
conclusion that a person has been dealt with arbitrarily or that a court or tribunal has not
given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding
of facts, or otherwise can stand in the way of the exercise of this power.17

In the instant case, the HC, in haste, reached the conclusion that Ms. Shanaya has committed
the grave crime of murder of her in-laws and Mr. Pradip without putting reliance on the
evidences and awarding her death penalty by deviating from the principle of “Rarest of Rare”
Doctrine which itself violates the Fundamental Right to life and liberty of the petitioner.

Thus, on the above grounds, it is humbly submitted that the petition is maintainable before
the Hon’ble SC of Indraprastha.

II. THE PETITION FILED BY NGO NAMED HUMANS AGAINST DEATH PENALTY
UNDER ART. 32 IS MAINTAINABLE.
13
Moot Proposition, ¶ 12.
14
Ram Piari v. Bhagwant, AIR 1990 SC 1742.
15
Kathi Ranning Rawat v. The State of Saurashtra, AIR 1952 SC 123; Achyut Adhicary v. West Bengal, AIR
1963 SC 1039.
16
Pritam Singh v. The State, AIR 1950 SC 169.
17
Sripur Paper Mills v. Comm. of Wealth Tax, AIR 1970 SC 1520; Om Prakash Sood v. Union of India, Civil
Appeal No. 9169 of 1996.
The present petition is maintainable under Art. 32 of the Constitution 18, since, the state has
the duty to protect life and liberty of its citizen under Art. 21 19 of the Constitution and by
awarding capital Punishment by deviating from the Principle of Rarest of Rare Doctrine is a
violation of the Fundamental Rights.

A. Fundamental Rights have been violated

VIOLATION OF RIGHT ENSHRINED UNDER ART. 1420 OF THE CONSTITUTION.

It is humbly submitted before this Hon’ble Court that under Art. 14 of the Constitution ensure
equality before law and equal protection of laws to every individual. According to Sec.
354(3)21 of CrPC which states that “Special Reasons” should be enlisted while delivering the
judgment of Death Penalty is arbitrary as it does not state proper guidelines to be followed
and its totally upto the discretion of the Judges to decide upon the issue of Death Penalty.

VIOLATION OF THE RIGHT TO LIFE AND LIBERTY ENSHRINED UNDER ART. 21.

The fundamental right to shelter22 and livelihood23 of the Citizens of the State have been as
guaranteed under Art. 21 of the Constitution been violated on account of the arbitrary
judgment passed by the Sessions Court and High Court by deviating from the Principle of
Rarest of Rare Doctrine and awarding Ms. Shanaya Death Penalty for the crime which she
has not even committed. Also according to recent developments in International Laws and
Treaties, which ensures abolition of “Capital Punishment” and as a Party to many of these
treaties Indraprastha should consider the abolition of “Capital Punishment.”

VIOLATION OF THE RIGHT ENSHRINED UNDER ART. 1924 OF THE CONSTITUTION.

The freedoms enumerated in Art.19 (1) are those great and basic rights, which are recognized
as the natural rights inherent in the status of a citizen. The phrase “reasonable restriction
connotes that the limitation imposed upon a person in enjoyment of the right should not be
arbitrary or of an excessive nature, beyond what is required in the interest of the public.25
The word reasonable implies intelligent care and deliberation that is the choice of a course
18
Art. 32, Constitution of India, 1950.
19
Art. 21, Constitution of India, 1950.
20
Art. 14, Constitution of India, 1950.
21
Sec. 354, Code of Criminal Procedure, 1973.
22
Chameli Singh v. State of Uttar Pradesh, 1995 Supp (6) SCR 827.
23
Sher Singh v. State of Punjab, 1983 SCR (2) 582.
24
Art. 19, Constitution of India, 1950.
25
Chintaman Rao v. State of M.P., AIR 1951 SC 118.
which reason dictates26 and death penalty restrict these liberties of the convicts by going
outside the scope of “Reasonable Restriction” enshrined under Art. 19(2) to 19(6).

C. The petition has been filed in public interest and therefore maintainable as
Public Interest Litigation

To invoke the writ jurisdiction of the SC is not necessary that the fundamental right must
have been actually infringed, a threat to the same would be sufficient. 27 Applying the doctrine
of “reasonable apprehension”, this Hon’ble Court may interfere directly in the said case. The
most fundamental right of an individual is his right to life; if an administrative decision may
put his life at risk, the basis for the decision surely calls for the most anxious scrutiny
according to the principle of “anxious scrutiny”28. Thus the petitioned filed before this apex
court is maintainable.

D. Alternative Remedy Not A Bar

Where there is well-founded allegation that fundamental right has been infringed alternative
remedy is no bar for entertaining writ petition and granting relief. 29 The mere existence of an
adequate alternative legal remedy cannot be per se be a good and sufficient ground for
throwing out a petition under Art. 32 if the existence of a fundamental right and a breach,
actual or threatened, of such right and is alleged is prima facie established on the petition. 30 In
spite of availability of the alternative remedy, the court may exercise its writ jurisdiction in at
least petitions where the petitioner seeks enforcement of any of the fundamental rights. 31
Thus, the petitioner humbly submits that writ petition is maintainable as existence of
alternative remedy is not a bar.

WHETHER MS. SHANAYA IS GUILTY OF MURDER OR NOT.

It is humbly submitted before this Hon’ble Court that the accused is not guilty for committing

26
Ibid.
27
Roop Chand v. State of Punjab, AIR 1963 SC 1503; Maganbhai v. Union of India, AIR 1969 SC 783; D.A.V
College v. State of Punjab, AIR 1971 SC 1731.
28
Bugdaycay v. Home Secretary, [1987] AC 514.
29
State of Bombay v. United motors Ltd., AIR 1953 SC 252.
30
K.K. Kouchunni v. State of Madras, AIR 1959 SC 725.
31
Harbansal Sahnia v. Indian Oil Corporation Ltd., AIR 2003 SC 2120.
the offence of murder under Sec. 30232 read with Sec. 30033, IPC, considering that it was an
accident. Furthermore, the Prosecution’s case must be dismissed because Murder lacks mens
rea (1) no Actus Reus (2) inadmissibility of Evidences (3) Reasonable Doubt (4).

I. MURDER WAS AN ACCIDENT AND LACKS MENS REA

Under Sec 8034, IPC, a criminal act which is an accident is not punishable as it is excuses the
accused from punishment due to a lack of mens rea, and it for the prosecution to prove
requisite intention or knowledge in cases of murder 35 . The word ‘accident’ is something that
happens unexpectedly or happens unintentionally36. The purely accidental result of a man’s
voluntary conduct will not be imputed to him if37 –

i. He had no criminal intention or knowledge

ii. His conduct was lawful
iii. His consequences were purely lawful

The amount of caution that is to be followed under this section is not that which is of the
highest order, but that which is a reasonable precaution when seeing the facts of each case. 38
In the case at hand it could be seen that-

 The Accused had no idea about the poison and she made the Dhokla 39 for her Family without
knowing that there is poison.
 It can be inferred from the statements of Accused that her alleged criminal actions were an
accidental one and she had no mens rea to commit such a crime, and without intent a
conviction cannot be made against the accused.

III. NO ACTUS REUS ON MS. SHANAYA’S PART.

The physical element of the crime that is vent, behaviour or state of affairs connected to the
crime is called the Actus Reus of the crime. 40 A person can only be held guilty of murder if it

32
Sec. 302, Indian Penal Code, 1860.
33
Sec. 300, Indian Penal Code, 1860.
34
Sec. 80, Indian Penal Code, 1860.
35
Chakru Sattiah v. State of AP AIR 1960 A.P. 153.
36
I, Nelson R. A. Indian Penal Code, p. 528 (10th Ed. 2008).
37
Mohan Singh v. State of Punjab AIR 1965 Punj 291.
38
Supra, Note 2, p. 533
39
Moot Proposition, ¶ 5.
40
David Ormerod, Smith and Hogan Criminal Law, Twelfth Edition, Oxford (2008), p. 42.
is absolutely clear that he killed the victim. He must be acquitted if there is a resonable
possibility that the killing was accidental.41

In the instant case Ms. Shanaya had no idea about poison in Dhokla it can be inferred that it
was Mr. Pradip who made the Dhokla poisonous while serving them to the Family.

It is possible for Courts to dispense with Mens Rea i.e. , the mental element of crime in whole
or in part, but they can never dispense with actus reus.42 There are no ‘thought crimes” i.e.
crimes without actus reus.43 If the actus reus of a crine does not exist or occur, the crime is
not committed.44

Every element of the actus reus must be proved beyond reasonable doubt. If the defendant’s
conduct fails to fulfil all the requirements of the different elements of the actus reus there
would be no actus reus45

IV. THE EVIDENCES ARE IN ADMISSIBLE UPON WHICH THE COURT HAD RELIED.

Sec. 60 excludes hearsay Evidence 46. Hearsay evidence is not used in

the Evidence Act because it is inaccurate and vague. It is a fundamental rule
of evidence under the Indian law that hearsay evidence is inadmissible.47

In the instant case Mr. Kuldeep (the investigating officer) approached the neighbours and
questioned various neighbours48 for hours. It was informed to Mr. Kuldeep as to how Ms.
Shanaya was not happy with staying with the in-laws and how on repeated occasions she
used to create a scene regarding the issue49 but that does not imply Ms. Shnaya will kill her
in- laws rather it was Mr. Pradip who made the Dhokla poisonous to take a revenge of his
insult because Mr. Pradip used to have feelings for Ms. Sonal and the same was not
acceptable to Ms. Susmita and Mr. Sushant. Even Ms. Sonal had publicly humiliated Mr.
Pradip for having feelings for her just a week before.

The Apex Court has held that in cases where there are a number of infirmaries in the

41
Ibid.
42
Supra Note 40, p. 43.
43
R.A. Duff , Philosophy and the criminal Law (1998).
44
Supra Note 40, p. 50.
45
Ibid. p. 45.
46
Section 60, Indian Penal Code, 1860.
47
Vinod Kumar Bhutani v. State Thr. CBI, (2013) 136 DRJ 249. 
48
Moot Proposition, ¶ 12.
49
Moot Proposition, ¶¶ 2, 12.
evidence of the eyewitnesses the benefit of the doubt is given to the accused50

V. THERE IS A REASONABLE DOUBT WHILE PROVING THE GUILT OF MS. SHANAYA.

In light of all the aforementioned arguments, the accused humbly submits that there exists
reasonable doubt and hence he should be acquitted of the alleged crime. A reasonable doubt
must not be imaginary, trivial or merely possible doubt; but a fair doubt based upon reason
and common sense arising out of the evidence of the case51 .

The prosecution’s arguments are leaning towards the fact that the crime ‘may have been
committed by the accused’, however they have failed to make the link between ‘may have
committed the crime’ and ‘must have committed the crime’ and that gap must be filled by the
prosecution by legal, reliable and unimpeachable evidence before a conviction can be
sustained52 .

Therefore, it is humbly submitted before this Hon’ble Court that the charge under section 302
of the IPC has not been made out due and he should be acquitted of the same.

WHETHER CAPITAL PUNISHMENT OR DEATH PENALTY AS A PUNISHMENT

IS CONSTITUTIONALLY VALID OR NOT?

It is humbly submitted before the Hon’ble Supreme Court that the Capital Punishment or
Death Penalty is against the Fundamental Rights enshrined under Part-III of the Constitution
and hence is Constitutionally Invalid. In the present case Ms. Shanaya has not committed a
crime at all and if she has committed that said act in the manner prescribed then it will not
come under the Principle of “Rarest of Rare” Doctrine. Hence, this petition has all the
essential ingredients to maintain the matter before this Hon’ble Court.

I. CAPITAL PUNISHMENT AWARDED IN THE PRESENT CASE IS NOT IN ACCORDANCE WITH

THE PRINCIPLE OF RAREST OF RARE DOCTRINE.

The apt tests to be applied were the “crime test”, “criminal test” and the “Rarest of Rare Case
test”. While the “crime test” referred to the aggravating circumstances, such as the
50
State of Punjab v. Rakesh Kumar (1998) Cr LJ 3604 (SC).
51
Ramakant Rai v. Madan Rai Cr LJ 2004 SC 36.
52
IV. Nelson R. A. , Indian Penal Code, p. 2905 , (10th Ed. 2008).
atrociousness and extent of damage to the victim, the “criminal test” referred to the
mitigating circumstances which might favour the accused, such as lack of intention to commit
the crime, possibility of reformation, young age of the accused and no previous criminal
record. Thus, for the death sentence to be awarded, there would, therefore, have to be 100%
satisfaction of the “crime test” and a 0% result from the “criminal test”.53

The Supreme Court has itself admitted errors in the application of the death penalty in
various cases.54

Some recent developments indicate an increase in political opinion in favour of abolition.

Most recently, in August 2015, the Tripura Assembly voted in favour of a resolution seeking
the abolition of the death penalty.55

Any international convention not inconsistent with the fundamental rights and in harmony
with its spirit must be read into those provisions, e.g., Articles 14, 15, 19 and 21 of the
Constitution to enlarge the meaning and content thereof and to promote the object of
constitutional guarantee.56

A. Ms. Shanaya is not guilty of murdering her in-laws and Mr. Pradip.

It is humbly submitted before this Hon’ble Court that in order to make a person criminally
accountable for an act, it must be proved that a certain event, or state of affairs, which is
forbidden by law, has been caused by his conduct, and that the conduct was accompanied be
a legally blameworthy attitude of mind.57

Most crimes consist of two broad elements: mens rea and actus reus. Mens rea means to have
"a guilty mind." The rationale behind the rule is that it is wrong for society to punish those
who innocently cause harm. Actus reus literally means "guilty act," and generally refers to an
overt act in furtherance of a crime. Requiring an overt act as part of a crime means that
society has chosen to punish only bad deeds, not bad thoughts.58

53
Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546.
54
Santosh Kumar v. State of Maharashtra, (2009) 6 SCC 498; Shankar Kisanrao Khade v. State of Maharashtra,
(2013) 5 SCC 546; Sangeet v. State of Haryana, (2013) 2 SCC 452.
55
Syed Sajjad Ali, Tripura passes Resolution against Death Penalty, The Hindu, 7 August 2015.
56
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
57
R. Balakrishna Pillai v. State of Kerala, AIR 2004 SC 1012; K.D. Gaur, Criminal Law - Cases and Material,
3rd ed., p. 23; Smith & Hogan, Criminal Law, 6th ed., p. 31 ; Salmond, Jurisprudence (3rd ed. 1910) 127.
58
United States v. Currans, 290, F. 2 d 751 (3rd Cir. 1961).
In the Instant case the Accused had no idea about the poison and she made the Dhokla 59 for
her Family without knowing that there is poison. Also, it can be inferred from the statements
of Accused that her alleged criminal actions were an accidental one and she had no mens rea
to commit such a crime, and without intent a conviction cannot be made against the accused.

Also, Ms. Shanaya asked Mr. Pradip to serve those dhoklas and leave for her work so the last
opportunity to alter the dhoklas and mix poison into it lies within the hands of Mr. Pradip and
he had all the requisite motive to kill each and every member of this family as Ms. Sonal
denied and made fun of his proposal and due to which he was full of hatred for this family.

E. The facts found by the courts would not be considered "special reasons" as
required under Sec. 354(3) of the CrPC, 1973.

The expression "special reasons" in the context of this provision, obviously means
"exceptional reasons" founded on the exceptionally grave circumstances of the particular case
relating to the crime as well as the criminal.60

Some mitigating factors that would determine the applicability of Principle of Rarest of Rare
Doctrine. First factor is Motive - When the murder is committed for a motive which evinces
depravity and meanness, e.g., a cold blooded murder to inherit property, or gain control over
property, or a murder committed for betrayal of the motherland. In the instant case Ms.
Shanaya had no requisite motive to kill her in-laws as she had the intention to live separately
with her husband but after her husband’s request and her family insistence 61 she dropped this
idea and started living with her in-laws without having any problem.62

Second factor is Magnitude of the Crime - Crimes of enormous proportion, like multiple
murders of a family or persons of a particular caste, community or locality. In the instant
case, as it is already been proved that Ms. Shanaya had no Mens Rea to commit the act of
murder of her in-laws, as she did not know that the Dhoklas were poisonous and asked Mr.
Pradip to serve those to her in-laws.63

Third factor is whether the act committed by accused shocks the conscience of the whole
community or not. In the instant matter all the deceased are related with Ms. Shanaya.but as
59
Moot Proposition, ¶ 5.
60
Balwant Singh v. State of Punjab, 1994 Supp (2) SCC 67.
61
Moot Proposition, ¶ 3.
62
Moot Proposition, ¶ 4.
63
Moot Proposition, ¶ 5.
already established through facts and circumstances that Ms. Shanaya unknowingly and
without intention asked Mr. Padip to serve those dhoklas which has poison in it. This fact is
itself evident in proving the innocence of the accused.64 Also, Mr. Pradip has the last
opportunity to alter the dhoklas and mix poison in it. Hence, Mr. Pradip is guilty of
murdering the in-laws of Ms. Shanaya by giving poison because he had problems with Ms.
Sonal (Sister In-law of Ms. Shanaya).

VI. THE CAPITAL PUNISHMENT IS ITSELF CONSTITUTIONALLY INVALID.

It is humbly submitted before this Hon’ble Court that the death penalty serves a deterrent as
well as retributive purpose.65 A legal policy on life or death cannot be left for ad hoc mood or
individual predilection and so we have sought to objectify to the extent possible, abandoning
retributive ruthlessness, amending the deterrent creed and accenting the trend against the
extreme and irrevocable penalty of putting out life.66

India has since acceded to the International Covenant of Civil and Political Rights (ICCPR) 67
adopted by the General Assembly of the United Nations, which came into force on December
16, 1976. By virtue of this Covenant, India and other 47 countries who are a party to it, stand
committed to a policy for abolition of the “Death Penalty.”

A. It is against the Right to Equality enshrined under Art. 14 of the Constitution.

In the celebrated case of Anuj Garg v. Hotel Association of India 68, the Hon’ble Supreme
Court of Indica held that there is no ‘presumption of constitutionality of a colonial
legislation’. The judgement in John Vallamatom v. Union of India 69 further propagates the
idea that the constitutionality of a provision will have to be judged keeping in mind the
interpretative changes of the statute affected by the passage of time. The law, although may
be constitutional when enacted, but with passage of time the same may be held to be
unconstitutional in view of the changed situation.

Though Art. 14 allows permissible classification, it is imperative that two conditions must be
fulfilled in such a situation, namely: the classification must be founded on an intelligible

64
Moot Proposition, ¶¶ 5, 6.
65
Furman v. Georgia, 408 U.S. 238 (1972).
66
Ediga Anamma v. State of Andhra Pradesh , AIR 1973 S.C. 774.
67
International Covenant on Civil and Political Rights, United Nations, Treaty Series, vol. 999, p. 171.
68
Anuj Garg v. Hotel Association of India, AIR 2008 SC 663.
69
John Vallamatom v. Union of India, AIR 2003 SC 2902.
differentia and the differentia must have a rational nexus to the objective sought to be
achieved by the statute.70

THE CLASSIFICATION HAS NOT BEEN FOUNDED ON AN INTELLIGIBLE DIFFERENTIA

“Intelligible differentia” means difference that is capable of being understood. 71 The Supreme
Court has observed in K. Thimmappa v. Chairman, Central Board of Directors 72 that
mere differentiation does not per se amount to discrimination and to attract the operation of
the equal protection clause, it is necessary to show that the selection is unreasonable or
arbitrary.

Awarding any convict a death sentence is in the hands of the judge hence making this process
an arbitrary power. According to Positivism School of Jurisprudence the rationale behind the
judgment given by any judge differs from judge to judge. As according to many cases it is
quite unreasonable to decide whether a case lies within the parameter of the Doctrine of
Rarest of Rare case. Rarest of Rare Doctrine is judge made law and no fixed parameter has
been list down and can vary from the circumstances of the cases.

Hence, the Differentiation done by the Supreme Court while pronouncing the judgment and
awarding death penalty to the convict is arbitrary as it lacks Intelligibility.

THERE IS NO RATIONAL NEXUS BETWEEN CLASSIFICATION AND OBJECTIVE SOUGHT.

The deterrent object of capital punishment was its "most important object", saying it
constituted "its strongest justification".73 But the 262nd Law Commission Report mentions that
the data on death penalty indicates the existence of disparity in the imposition of the death
penalty, reflecting systemic and structural disadvantages, particularly of the socially and
economically marginalized.74 The commission in its report concluded that there is no
empirical evidence to suggest that the death penalty has a deterrent effect over and above its
alternative – life imprisonment.75

Hence, according to the report it is quite evident that the prime objective of this legislation is
70
K. Thimmappa v. Chairman, Central Board of Directors, AIR 2001 SC 467; Union of India v. M.V.
Valliappan, (1996) 6 SCC 259.
71
Oxford Dictionary.
72
K. Thimmappa v. Chairman, Central Board of Directors, (2001) 2 SCC 259.
73
Law Commission of India, 35th Report, 1967, ¶ 295, available at http://lawcommissionofindia.nic.in/1-
50/Report35Vol1and3.pdf (last viewed on 28.05.2020).
74
The 262nd report of the Law Commission of India on death penalty, August 2015, pp.44-45.
75
Supra Note 33.
not being fulfilled and it is creating disparity among the citizens on terms of socially and
economically marginalized and hence there is no nexus between the classification and the
object sought.

F. It violates All the Fundamental Rights enshrined Under Art. 19 of the

Constitution.

It is humbly submitted that Art. 19 deals with 6 freedoms like freedom of speech and
expression, freedom to assemble peaceably and without arms etc., but not directly with the
freedom to live. It is, however, contended that freedom to live is basic to all the several
freedoms and since the enjoyment of those six freedoms is impossible without conceding
freedom to live, the latter cannot be denied by any land unless such law is reasonable and is
required in general public interest.

It was, therefore, contended that, unless it was shown that the sentence of death for murder
passed the test of reasonableness and general public interest, it would not be a valid law.

TESTS OF REASONABLE RESTRICTIONS

The phrase reasonable restrictions connotes that the limitation imposed upon a person in the
enjoyment of a right should not be arbitrary or of an excessive nature. 76 A restriction to be
valid must have a direct and proximate nexus with the object which the legislation seeks to
achieve and the restriction must not be in excess of that object i.e.; a balance between the
freedoms guaranteed under Art. 19(1) (a) to (g) and the social control permitted by clauses
(2) to (6) of Art. 19.77

There is no increase in the crime rate even when capital punishment is abolished and no
decrease when the court awards death sentence for a crime. 78 Hence, the object that “Capital
Punishment” seeks to achieve has not fulfilled in circumstances when a convict was awarded
the sentence of death penalty.

G. It violates right to life under Art. 21 of the constitution

It is contended that Capital punishment u/s 30279 of IPC violates Right to Life under Art. 21

76
Supra Note 25.
77
Pathumma and Others v. State Of Kerala And Others, 1978 SCR (2) 537.
78
Bachan Singh v. State of Punjab, AIR 1980 SC 898.
79
Sec. 302, Indian Penal Code, 1860.
of the Constitution as it is against the Right to Personal Liberty of an individual, it violates
Right to Die with dignity of an individual, and it violates one’s Right to Health.

The Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment
(‘the Torture Convention’) and the UN Committee against Torture have been sources of
jurisprudence for limitations on the death penalty as well as necessary safeguards. The
Torture Convention does not regard the imposition of death penalty per se as a form of torture
or cruel, inhuman or degrading treatment or punishment (‘CIDT’). 80

Art. 21 “embodies a constitutional value of supreme importance in a democratic society.”

Justice Iyer in one of his Judgment, has characterized Art. 21 as “the procedural magna carta
protective of life and liberty. This right has been held to be the heart of the Constitution, the
most organic and progressive provision in our living constitution, the foundation of our
laws.81 Hence, by simply awarding Death Penalty and not taking The Right of the Convict of
life and liberty into consideration is against the Idea of Protection of Fundamental Rights.

IT IS AGAINST THE RIGHT TO PERSONAL LIBERTY OF AN INDIVIDUAL

The Hon’ble Supreme Court has held that the expression “personal liberty” in Art. 21 is of
the widest amplitude and it covers a variety of rights. 82Any law interfering with personal
liberty of a person must satisfy a triple test:83

1) It must prescribe a procedure;

2) the procedure must withstand a test of one or more of the fundamental rights conferred u/a 19
which may be applicable in a given situation; and

3) It must also be liable to be tested with reference to Art. 14

The provision equally prohibits the mutilation of the body by amputation of an armored leg
or the pulling out of an eye, or the destruction of any other organ of the body through which
the soul communicates with the outer world.84

80
India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp.44-45.
81
Maneka Gandhi v. Union of India, 1978 AIR 597.
82
Maneka Gandhi v. Union of India, 1978 AIR 597; M.H. Hoskot v. State of Maharashtra,1978 AIR 1548;
Hussainara Khatoon and others v. Home Secretary State of Bihar, 1979 AIR 1369; Prem Shankar Shukla v.
Delhi Admn., 1980 AIR 1535.
83
Supra Note 81.
84
Kharak Singh v. State of U.P., 1964 SCR (1) 332.
While in Sec. 302 there is no procedure mentioned as to how, when and under what
circumstances a convict should be awarded a death penalty. The Rarest of the Rare doctrine is
a judge made law and cannot fulfill this criteria as it varies from the circumstances of the case
and the rationale of the judge. Hence, making it arbitrary.

Also, this Sec. 302 lacks all the aspect of creating a reasonable classification among the
culprits and has no nexus between the classification and objective sought to be achieved.

It is also contended that this provision cannot be termed as a reasonable restriction on the
fundamental right as prescribed under the cl. 2 of Art. 19 as under the head of reasonable
restriction it is nowhere mentioned that restricting the life and liberty or ending it can be done
in the name of public welfare. However, the imprisonment can be justified on the terms of
reasonable restriction but taking someone’s life and calling it a reasonable restriction is
against the moral and ethical ideals that our constitution has laid down under Art. 21.

IT VIOLATES RIGHT TO DIE WITH DIGNITY

The Supreme Court in its judgment in Gian Kaur v. State of Punjab85 held that Art. 21 of
the Constitution is also available to a death convict. It had ruled that "the right to die by a
dignified procedure of death is a fundamental right."

Right to die with dignity is a fundamental right86 as enshrined under Art. 21 of the
Constitution. Every person be it a convict or an innocent person have this right to die in a
dignified manner and State has no right to take or abridge this right instead state has the duty
to protect this right and to respect the moral values attached to it.

IT VIOLATES RIGHT TO LIVE WITH HUMAN DIGNITY

It is humbly submitted before this Hon’ble Court that right to live is not merely a physical
right but includes within its ambit the right to live with human dignity 87 and no State neither
the Central Government nor any State Government-has the right to take any action which will
deprive a person of the enjoyment of basic essentials.88
85
Gian Kaur v. State of Punjab, 1996 SCC (2) 648.
86
Common Cause (A Regd. Society) v. Union of India, (2018) 5 SCC 1.
87
Maneka Gandhi v. Union of India, 1978 AIR 597; Francis Coralie v. Union Territory of Delhi, 1981 SCR (2)
516.
88
Bandhua Mukti Morcha v. Union of India, (1997) 10 SCC 549.
It is humbly submitted that freedom to live is basic to all the several freedoms and since
the enjoyment of basic essentials is impossible without conceding freedom to live, the
latter cannot be denied by any land unless such law is reasonable and is required in
general public interest. Hence, the law abridging one’s right to live and deprive him/her
the enjoyment of basic essentials should be called unconstitutional.

IT IS IN VIOLATION OF ONE’S RIGHT TO HEALTH

The Hon’ble Supreme Court, while interpreting Art. 21 of the Constitution in light of Art. 12
of the International Covenant on Economic, Social and Cultural Rights, held that the Right to
Health was an integral component of one’s Right to life.’ 89 The right to health contains both
freedom and entitlements. The freedoms include the right to control one’s health and body,
including sexual reproductive freedom.90

The “right to life” included the right to lead a healthy life so as to enjoy all facilities of the
human body in their prime conditions.91 It is humbly submitted before this Hon’ble Court that
awarding death penalty is against one’s right to live a healthy life as it restricts that person
from enjoying one’s health and body.

Hence, according to the arguments advanced it is evident that this provision of Capital
Punishment is against the idea of Justice, equality and good conscience as it violates the
fundamental rights of the convict which he is entitled to under the pursuance of Part-III of the
Constitution.

89
Paschim Banga Khet Mazdoor Samity v. State of West Bengal, AIR 1996 SC 2426.
90
General Comment No. 14 (2000) [E/C.12/2000/4; 11 August 2000].
91
Sunil Batra v. Delhi Administration, 1980 SCR (2) 557.
 PRAYER

In light of the issues presented, arguments advanced and authorities cited, this Hon’ble Court
may be pleased to:

I. ADJUDGE AND DECLARE that the petitions filed under Article 136 and under Article 32 are

maintainable.

II. ADJUDGE AND DECLARE that Ms. Shanaya is not guilty of Murder of her in-laws and Mr.

Pradip and is also not guilty of attempt to murder or her Husband.

III. ADJUDGE AND DECLARE that the Capital Punishment awarded to Ms. Shanaya is not in line

with the Principle of Rarest of Rare Doctrine.

IV. ADJUDGE AND DECLARE that Capital Punishment violates the Fundamental Rights and hence is

Unconstitutional.

[¶1] All of which is respectfully submitted and for such act of kindness the Respondent shall
be duty bound as ever pray.

RESPECTFULLY SUBMITTED,

______________________

COUNSELS FOR THE PETITIONER.