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Review – Art. 145 (1) & (3) of Constitution – ORAL HEARING at Review of judgement or order – Constitution Bench held that We make it clear that the law laid down in this judgment, viz., the right of a limited oral hearing in review petitions where death sentence is given, shall be applicable only in pending review petitions and such petitions filed in future. It will also apply where a review petition is already dismissed but the death sentence is not executed so far. In such cases, the petitioners can apply for the reopening of their review petition within one month from the date of this judgment. However, in those cases where even a curative petition is dismissed, it would not be proper to reopen such matters. All the writ petitions are disposed of accordingly.=WRIT PETITION (CRIMINAL) NO.77 OF 2014 Mohd. Arif @ Ashfaq … Petitioner Versus The Registrar, Supreme Court of India & Others … Respondents = 2014 – Sept. Month – http://judis.nic.in/supremecourt/filename=41867

Reportable
IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO.77 OF 2014

Mohd. Arif @ Ashfaq … Petitioner

Versus

The Registrar,
Supreme Court of India & Others … Respondents
WITH

WRIT PETITION (CRIMINAL) NO.137 OF 2010

C. Muniappan & Others … Petitioners

Versus

The Registrar,
Supreme Court of India … Respondent
WITH

WRIT PETITION (CRIMINAL) NO.52 OF 2011

B.A. Umesh … Petitioner

Versus

Registrar,
Supreme Court of India … Respondent

WITH

WRIT PETITION (CRIMINAL) NO.39 OF 2013

Sundar @ Sundarrajan … Petitioner

Versus

State by Inspector of Police & Others … Respondents
WITH

WRIT PETITION (CRIMINAL) NO.108 OF 2014

Yakub Abdul Razak Memon … Petitioner

Versus

Registrar,
Supreme Court of India & Others … Respondents
AND

WRIT PETITION (CRIMINAL) NO.117 OF 2014

Sonu Sardar … Petitioner

Versus

Union of India & Others … Respondents
J U D G M E N T

Chelameswar, J.
1. I have had the privilege of reading the draft judgment prepared by my
esteemed brother Rohinton Fali Nariman, J. With utmost respect, I am
unable to agree with the view taken by him that a review petition filed by
a convict whose death penalty is affirmed by this Court is required to be
heard in open Court but cannot be decided by circulation. The background
facts and the submissions are elaborately mentioned by my learned brother.
I do not propose to repeat them.

2. Extinguishment of life of a subject by the State as a punishment for
an offence is still sanctioned by law in this country. Article 21 of the
Constitution itself recognizes the authority of the State to deprive a
person of his life. No doubt, such authority is circumscribed by many
constitutional limitations. Article 21 mandates that a person cannot be
deprived of his life except according to procedure established by law.
Whether Article 21 is the sole repository of the constitutional guarantee
against the deprivation of life and whether it is sufficient for the State
to merely prescribe a procedure for the deprivation of life by a law, or
whether such a law is required to comply with certain other constitutional
requirements are questions which have been the subject matter of debate by
this Court in various decisions starting from A.K. Gopalan v. State of
Madras, AIR 1950 SC 27. The history of such debate and the historical
background in which such constitutional protections are felt necessary have
been very elaborately discussed by my learned brother. Therefore, I do
not propose to deal with the said aspect of the matter.

3. Section 53[1] of the Indian Penal Code, 1860 (hereinafter referred to
as “IPC”) prescribes various punishments to which offenders are liable
under the provisions of the IPC. Death is one of the punishments so
prescribed. Provisions of the IPC prescribe death penalty for various
offences as one of the alternative punishments for these offences[2]. For
example, Section 302 prescribes death or imprisonment for life as
alternative punishments for a person who commits murder. Similarly,
Section 121 prescribes death penalty as one of the alternatives for an
offence of waging or attempting to wage or abetting to waging of war
against the Government of India.

4. Apart from the Penal Code, some other special enactments also create
offences for which death penalty is one of the punishments. Unless, a
special procedure is prescribed by such special law, all persons accused of
offences are tried in accordance with the procedure prescribed under the
Code of Criminal Procedure, 1973 (hereinafter referred to as “the CrPC”).
Under the scheme of the CrPC, only the High Court and the Court of Sessions
are the courts authorized to award punishment of death. The other
subordinate courts such as Chief Judicial Magistrates and Magistrates are
expressly debarred to award death penalty. Sections 28[3] and 29[4] of
the CrPC prescribe the punishment which the various courts in the hierarchy
of the criminal justice administration system can pass.

5. Some special enactments like the Terrorist and Disruptive Activities
(Prevention) Act, 1987, Narcotic Drugs and Psychotropic Substances Act,
1985, the Unlawful Activities Prevention Act, 1967 etc. also create
offences for which death penalty is one of the alternative punishments
prescribed. Though some of the offences are triable by special courts
constituted under these Acts, generally the CrPC is made applicable to the
proceedings before the special courts and such special courts are generally
manned by persons who are either Sessions Judges or Addl. Sessions Judges.

6. Legislature, as a matter of policy, entrusted the trial of serious
offences for which death penalty is one of the possible penalties, to
relatively more experienced members of the subordinate judiciary.

7. Even though Sessions Courts are authorized to award punishment of
death in an appropriate case, the authority of the Sessions Court is
further subjected to two limitations:-
Under sub-section (3) of Section 354 of the CrPC, the judgment by which the
punishment of death is awarded, is required to give special reasons for
such sentence .
354. Language and contents of judgment.— (1) Except as otherwise expressly
provided by this Code, every judgment referred to in section 353,—

********* ******* ******** **********

(3) When the conviction is for an offence punishable with death or, in the
alternative, with imprisonment for life or imprisonment for a term of
years, the judgment shall state the reasons for the sentence awarded, and,
in the case of sentence of death, the special reasons for such sentence.

*********** ********* ************ *************

The second limitation is contained in chapter XXVIII of the CrPC. Section
366(1) thereof mandates that a Court of Session passing a sentence of death
shall submit the proceedings to the High Court and the sentence so imposed
by the Sessions Court shall not be executed unless the High Court confirms
the punishment awarded.

8. Section 367 of the CrPC authorises the High Court to make a further
enquiry into the matter or take additional evidence. Under Section 368 of
the CrPC, the High Court is precluded from confirming the sentence until
the period allowed for preferring an appeal (by the accused) has expired or
if an appeal is already presented within the period of limitation
prescribed under law, until such appeal is disposed of. In other words,
before confirming the award of death sentence, the High Court is required
to examine the correctness of the finding of the guilt of the accused
recorded by the Sessions Court, if the accused chooses to challenge the
correctness of the finding of the guilt by the Sessions Court. In theory,
the role of the High Court in confirming or declining to confirm the
sentence of death awarded by the Sessions Court is limited to the
examination of the correctness or the appropriateness of the sentence. The
correctness and legality of the finding of guilt recorded by the Sessions
Court, is required to be examined in the appeal, if preferred against such
finding by the accused. Hence, the requirement under Section 368 is to
await the decision in the appeal preferred by the accused against the
finding of guilt.

9. However, in practice when a reference is made under Section 366, the
High Court invariably examines the correctness of the finding of the guilt
recorded by the Sessions Court. In fact such a duty is mandated in Subbaiah
Ambalam v. State of Tamil Nadu, AIR 1977 SC 2046–
”It is well settled that in a Reference under S.374 of the Code of Criminal
Procedure for confirming death sentence, the High Court has to consider the
evidence afresh and to arrive at its independent finding with regard to the
guilt of the accused.”
and in Surjit Singh & Others v. The State of Punjab, Criminal Appeal No.77
of 1968 decided by this Court on 15th October, 1968–
“It is clear from a perusal of these provisions that on a reference under
s.374, Criminal Procedure Code, the entire case is before the High Court.
In hearing such a reference the High Court has to satisfy itself as to
whether a case beyond a reasonable doubt has been made out against the
accused persons for the infliction of the penalty of death. In other
words, in hearing the reference, it is the duty of the High Court to
reappraise and to reassess the entire evidence and to come to an
independent conclusion as to the guilt or innocence of each of the accused
persons mentioned in the reference.”
10. Section 369 CrPC further stipulates that every case referred under
Section 366 to the High Court shall be heard and decided by at least two
judges of the High Court, if that High Court consists of two or more
judges.

11. In a case where the penalty of death is confirmed by the High Court
in accordance with the CrPC, the decision is final except for two
categories of cases. Under Article 134[5], a right of appeal to this
Court is created in criminal cases where the High Court on appeal reverses
an order of acquittal of an accused person recorded by the Sessions Court
and sentences him to death or where the High Court withdraws for trial
before itself any case pending before a court subordinate to it and
convicts the accused person and awards death sentence to such an accused
person. I may also state that apart from such a constitutional right of
appeal, as a matter of practice, this Court has been granting special leave
under Article 136 in almost, as a matter of course, every case where a
penalty of death is awarded.

12. In this Court, appeals, whether civil or criminal, have always been
heard by at least two judges.

13. The authority of the courts to examine and adjudicate the disputes
between the sovereign and its subjects and subjects inter se is conferred
by law, be it the superior Law of Constitution or the ordinary statutory
law. Such jurisdiction can be either original or appellate. A court’s
jurisdiction to review its own earlier judgment is normally conferred by
law. The jurisdiction of this Court to review its own judgments is
expressly conferred under Article 137 of the Constitution.
137. Review of judgments or orders by the Supreme Court:- Subject to the
provisions of any law made by Parliament or any rules made under Article
145, the Supreme Court shall have power to review any judgment pronounced
or order made by it.

14. The question on hand is as to the procedure to be followed in
exercising such jurisdiction. Article 145 of the Constitution authorizes
the making of rules by this Court regarding the practice and procedure of
the court, of course such authority of this Court is made subject to the
provisions of any law made by Parliament. Article 145(1)(e) expressly
authorizes this Court to make rules as to the conditions subject to which a
judgment or order made by this Court be reviewed and the procedure for such
review.
Article 145 : Rules of Court, etc.— (1) Subject to the provisions of any
law made by Parliament, the Supreme Court may from time to time, with the
approval of the President, make rules for regulating generally the practice
and procedure of the Court including;

***** ***** *****

(e) Rules as to the conditions subject to which any judgment pronounced
or order made by the Court may be reviewed and the procedure for such
review including the time within which applications to the Court for such
review are to be entered;

***** ***** *****

15. In exercise of such power, this Court made Rules from time to time.
The Rules in vogue are called the Supreme Court Rules, 1966[6]. Order XL
of the said Rules occurring in Part VIII deals with the subject of review.
Rule 1 thereof stipulates that no application for review in a criminal
proceeding be entertained by this Court except on the ground of an error
apparent on the face of the record.
Rule 1. The Court may review its judgment or order, but no application for
review will be entertained in a civil proceeding except on the ground
mentioned in Order XLVII, rule I of the Code, and in a criminal proceeding
except on the ground of an error apparent on the face of the record.
16. Rule 3 stipulates that an application for review shall be disposed of
by circulation without any oral arguments.
Rule 3. Unless otherwise ordered by the Court an application for review
shall be disposed of by circulation without any oral arguments, but the
petitioner may supplement his petition by additional written arguments.
The Court may either dismiss the petition or direct notice to the opposite
party. An application for review shall as far as practicable be
circulated to the same Judge or Bench of Judges that delivered the judgment
or order sought to be reviewed.

Rule 3 as it exists today was added on 9th August, 1978 with effect from
19th August, 1978.

17. The constitutionality of the said rule was promptly challenged and
repelled by a Constitution Bench of this Court in P.N. Eswara Iyer & Others
v. Registrar, Supreme Court of India, (1980) 4 SCC 680.

18. This Court took note of the fact that in a departure from the
existing system, the new rules eliminate oral hearing in a review
application and mandate that a review application shall be disposed of by
circulation. The Court also noticed that even the new Rules do not totally
eliminate the possibility of an oral hearing, the discretion is preserved
in the Court to grant an oral hearing in an appropriate case. The Court
negated the submission that “the scuttling of oral presentation and open
hearing is subversive of the basic creed that public justice shall be
rendered from the public seat, not in secret conclave …..”

19. Such a conclusion is reached by the Court on the ground that a review
is not the original proceeding in this Court. It is preceded by an
“antecedent judicial hearing”, therefore, such a second consideration need
not be “plenary”. This Court categorically recorded, rejecting the
challenge that the rule of audi alteram partem demands a hearing in open
court;
“19…..The right to be heard is of the essence but hearing does not mean
more than fair opportunity to present one’s point on a dispute, followed by
a fair consideration thereof by fair minded judges. Let us not
romanticize this process nor stretch it to snap it. Presentation can be
written or oral, depending on the justice of the situation…..”

It further held;

“20. …..Granting basic bona fides in the judges of the highest court it is
impossible to argue that partial foreclosure of oral arguments in court is
either unfair or unreasonable or so vicious an invasion of natural justice
as to be ostracized from our constitution jurisprudence.”
This Court held that the purpose behind amendment of the rule eliminating
oral hearing is that the demands of court management strategies require
this Court to examine from time to time the procedure to be followed in
various classes of cases brought before it and make suitable rules.
“25. …. The balancing of oral advocacy and written presentation is as much
a matter of principle as of pragmatism. The compulsions of realities,
without compromise on basics, offer the sound solution in a given
situation. There are no absolutes in a universe of relativity. The pressure
of the case-load on the Judges’ limited time, the serious responsibility to
bestow the best thought on the great issues of the country projected on the
court’s agenda, the deep study and large research which must lend wisdom to
the pronouncements of the Supreme Court which enjoy awesome finality and
the unconscionable backlog of chronic litigation which converts the
expensive end-product through sheer protraction into sour injustice – all
these emphasise the urgency of rationalising and streamlining court
management with a view to saving court time for the most number of cases
with the least sacrifice of quality and turnover. If, without much injury,
a certain class of cases can be disposed of without oral hearing, there is
no good reason for not making such an experiment. If, on a close perusal of
the paper-book, the Judges find that there is no merit or statable case,
there is no special virtue in sanctifying the dismissal by an oral ritual.
The problem really is to find out which class of cases may, without risk of
injustice, be disposed of without oral presentation. This is the final
court of provisional infallibility, the summit court, which not merely
disposes of cases beyond challenge, but is also the judicial institution
entrusted with the constitutional responsibility of authoritatively
declaring the law of the land. Therefore, if oral hearing will perfect the
process it should not be dispensed with. Even so, where issues of national
moment which the Supreme Court alone can adequately tackle are not
involved, and if a considerable oral hearing and considered order have
already been rendered, a review petition may not be so demanding upon the
Judge’s “Bench” attention, especially if, on the face of it, there is
nothing new, nothing grave at stake. Even here, if there is some case
calling for examination or suggestive of an earlier error, the court may
well post the case for an oral hearing. (Disposal by circulation is a
calculated risk where no problem or peril is visible.)”

The Bench also observed:
“37. …We do not claim that orality can be given a permanent holiday. Such
an attitude is an over-reaction to argumentum ad nauseum. But we must
importantly underscore that while lawyer’s advocacy cannot be made to
judicial measure especially if judges are impatient, there is a strong case
for processing argumentation by rationalisation, streamlining, abbreviation
and in, special situations, elimination. Review proceedings in the Supreme
Court belongs to the last category. There is no rigidity about forensic
strategies and the court must retain a flexible power in regard to limiting
the time of oral arguments or, in exceptional cases, eliminating orality
altogether, the paramount principle being fair justice…..”

20. The reasons given by my learned brother in support of his conclusion
that a limited oral hearing should be granted to the accused are:
(i) that there is a possibility of (given the same set of facts) two
judicial minds reaching different conclusions either to award or decline to
award death sentence.
(ii) that the death penalty once executed becomes irreversible and
therefore every opportunity must be given to the condemned convict to
establish that his life ought not to be extinguished. The obligation to
give such an opportunity takes within its sweep, that an oral hearing be
given in a review petition, as a part of a “reasonable procedure” flowing
from the mandate of Article 21.
(iii) that even a remote chance of deviating from the original
decision would justify an oral hearing in a review petition.

21. I agree with my learned brother that death penalty results in
deprivation of the most fundamental liberty guaranteed by the Constitution
resulting in an irreversible situation. Therefore, such deprivation should
be only in accordance with the law (both substantive and procedural) which
is consistent with the constitutional guarantee under Articles 14 and 21
etc.

22. But, I am not able to agree with the proposition that such an
obligation extends so far as to compulsorily giving an oral hearing in
every case where review is sought by a condemned convict.

23. I have already explained the various safeguards provided by the
Constitution and the law of this country against awarding death penalty.
Barring the contingency contemplated under Article 134, the makers of the
Constitution did not even think it fit to provide an appeal to this Court
even in cases of death penalty. In cases other than which are brought
before this Court as of right under Article 134, this Court’s jurisdiction
is discretionary. No doubt, such discretion is to be exercised on the
basis of certain established principles of law. It is a matter of record
that this Court in almost every case of death penalty undertakes the
examination of the correctness of such decision.

24. Article 137 does not confer any right to seek review of any judgment
of this Court in any person. On the other hand, it only recognizes the
authority of this Court to review its own judgments. It is a settled
position of law that the Courts of limited jurisdiction don’t have any
inherent power of review. Though this Court is the apex constitutional
court with plenary jurisdiction, the makers of the Constitution thought it
fit to expressly confer such a power on this Court as they were aware that
if an error creeps into the judgment of this Court, there is no way of
correcting it. Therefore, perhaps they did not want to leave scope for any
doubt regarding the jurisdiction of this Court to review its judgments in
appropriate cases. They also authorized this Court under Article
145(1)(e)[7] to make rules as to the conditions subject to which a judgment
of this Court could be reviewed and also make rules regarding the procedure
for such review. Both Articles 137 and 145 give this Court the authority
to review its judgments subject to any law made by the Parliament.

25. As observed by this Court in Eswara Iyer’s case, it has never been
held, either in this country or elsewhere, that the rule of audi alteram
partem takes within its sweep the right to make oral submissions in every
case. It all depends upon the demands of justice in a given case. Eswara
Iyer’s case clearly held that review applications in this Court form a
class where an oral hearing could be eliminated without violating any
constitutional provision. Therefore, I regret my inability to agree with
the conclusion recorded by my learned brother Justice Nariman that the need
for an oral hearing flows from the mandate of Article 21.

26. In my opinion, in the absence of any obligation flowing from Article
21 to grant an oral hearing, there is no need to grant an oral hearing on
any one of the grounds recorded by my learned brother for the following
reasons –
That review petitions are normally heard by the same Bench which heard the
appeal. Therefore, the possibility of different judicial minds reaching
different conclusions on the same set of facts does not arise.

The possibility of the “remote chance of deviation” from the conclusion
already reached in my view is – though emotionally very appealing in the
context of the extinguishment of life – equally applicable to all cases of
review.

27. Prior to the amendment of Order XL of the Supreme Court Rules in 1978
(which was the subject matter of challenge in Eswara Iyer’s case) this
Court granted oral hearings even at the stage of review. It was by the
amendment that the oral hearings were eliminated at the review stage. As
explained by Eswara Iyer’s case, such an amendment was necessitated as a
result of unwarranted “review baby” boom. This Court, in exercise of its
authority under Article 145 as a part of the Court management strategy,
thought it fit to eliminate the oral hearings at the review stage while
preserving the discretion in the Bench considering a review application to
grant an oral hearing in an appropriate case. The Constitution Bench
itself, while upholding the constitutionality of the amended rule of Order
XL, observed;
“All that we mean to indicate is that the mode of ‘hearing’, whether it
should be oral or written or both, whether it should be full-length or
rationed, must depend on myriad factors and future developments. ‘Judges
of the Supreme Court must be trusted in this regard and the Bar will
ordinarily be associated when decisions affecting processual justice are
taken’.” (para 37 page 696)

28. I do not see any reason to take a different view – whether the
“developments” subsequent to Eswara Iyer’s case, either in law or practice
of this Court, demand a reconsideration of the rule, in my opinion, should
be left to the Court’s jurisdiction under Article 145.
………………………………….J.
( J. CHELAMESWAR )
New Delhi;
September 02, 2014.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO.77 OF 2014

Mohd. Arif @ Ashfaq … Petitioner

Versus

The Registrar,
Supreme Court of India & Others … Respondents

WITH

WRIT PETITION (CRIMINAL) NO.137 OF 2010

C. Muniappan & Others … Petitioners

Versus

The Registrar,
Supreme Court of India … Respondent

WITH

WRIT PETITION (CRIMINAL) NO.52 OF 2011

B.A. Umesh … Petitioner

Versus

Registrar,
Supreme Court of India … Respondent

WITH
WRIT PETITION (CRIMINAL) NO.39 OF 2013

Sunder @ Sundarajan … Petitioner

Versus

State by Inspector of Police & Others … Respondents
WITH

WRIT PETITION (CRIMINAL) NO.108 OF 2014

Yakub Abdul Razak Memon … Petitioner

Versus

Registrar,
Supreme Court of India & Others … Respondents

AND

WRIT PETITION (CRIMINAL) NO.117 OF 2014

Sonu Sardar … Petitioner

Versus

Union of India & Others … Respondents
J U D G M E N T

R.F. Nariman, J.

1. This group of petitions has come before the Constitution Bench by a
referral Order dated 28th April, 2014. In each of them execution of the
death sentence awarded to the petitioners has been stayed. Two basic
issues are raised by counsel appearing for the petitioners, (1) the hearing
of cases in which death sentence has been awarded should be by a Bench of
at least three if not five Supreme Court Judges and (2) the hearing of
Review Petitions in death sentence cases should not be by circulation but
should only be in open Court, and accordingly Order XL Rule 3 of the
Supreme Court Rules, 1966 should be declared to be unconstitutional
inasmuch as persons on death row are denied an oral hearing.
2. Leading the arguments on behalf of the petitioners, Shri K.K.
Venugopal, Senior Advocate appearing in Writ Petition (Crl.) No.137 of 2010
made a fervent plea that death sentence cases are a distinct category of
cases altogether. According to the learned counsel, the award of the death
penalty is a direct deprivation of the right to life under Article 21. The
right to liberty under Article 21 is a facet of the core right to existence
itself, which, if deprived, renders all liberty meaningless. This right is
available as long as life lasts. [See: Sher Singh v. State of Punjab,
(1983) 2 SCC 345 at para 16; Shatrughan Chauhan v. Union of India, (2014) 3
SCC 1 at para 35; V. Sriharan v. Union of India, (2014) 4 SCC 242 at para
19-21. According to the learned counsel, Article 134 of the Constitution
allows an automatic right of appeal to the Supreme Court in all death
sentence cases. The death penalty is irreversible, as observed by
Bhagwati, J. in his dissent in Bachan Singh vs. State of Punjab, 1982 (3)
SCC 24 at para 26. Further, Section 354(3) of the Cr.P.C. recognizes the
fact that in death sentence cases special reasons have to be recorded, and
case law has further embellished this to mean that it can be granted only
in the rarest of rare cases. Death sentence cases are given priority of
hearing over other matters by the Supreme Court. The learned senior
counsel further went on to add that the award of death sentence at present
depends upon the vagaries of the judicial mind as highlighted in several
Articles and by Bhagwati, J. in his dissent in Bachan Singh (at paras 70
and 71). Further, the Supreme Court has itself commented on these vagaries
in various judgments. [See: Aloke Nath Dutta v. State of W.B. (2007) 12 SCC
230 at paras 153-178; Swamy Shraddananda (2) v. State of Karnataka (2008)
13 SCC 767 at paras 48-52; and Santosh Kumar Satishbhushan Bariyar v. State
of Maharashtra (2009) 6 SCC 498 at para 130]
3. The 187th Law Commission Report of 2003 has recommended that at least
5 Judges of the Supreme Court hear all death cases. The Army, Air Force
and Navy Acts all require that court martials involving the death sentence
should be heard by at least 5 senior officers. An alternative submission
was made, that even if death sentence cases are to be heard by Benches of
three Hon’ble Judges, two additional Judges can be added at the review
stage so that five learned Judges dispose of all reviews in death sentence
cases.
4. A reference was made to Order XXXVIII of the 1950 Supreme Court Rules
read with Order XI Rule 1 to show that all review cases should be heard by
a bench of at least three learned Judges. This was reduced by the Supreme
Court Rules 1966 to two Judges by Order VII Rule 1. Further, in 1978 a new
sub-rule (3) was added to Order XL of the Supreme Court Rules providing
that all review applications could now be disposed of and heard by
circulation – that is without oral argument.
5. It was further submitted by learned counsel that AMNESTY Annual
Reports show that not more than 100 death sentences are awarded in any
given year. It was further submitted that ultimately the number of death
sentences awarded by the Supreme Court would be only 60 per annum and that
if limited oral arguments were allowed in these cases, the Supreme Court’s
overcrowded docket could easily bear the load. Also, under the law as it
currently stands, the success of review in a capital case could potentially
turn solely upon the skill of counsel who drafts the review petition.
Considering the special gravity of the consequences that could follow from
a mistake by counsel, an oral hearing would be desirable to ensure that no
injustice is inadvertently done.
6. Learned counsel appearing in Writ Petition (Crl.) No.77/2014 argued
before us that as in his case the petitioner had undergone over 13 years in
jail, in substance the petitioner had already undergone the sentence of
life imprisonment, and as in murder cases a sentence of life is alternative
to a sentence of death, the petitioner having already undergone a sentence
of life imprisonment could not be given the death penalty in addition. He
referred to Sections 415, 418, 426 to 428 and 433-A of the Cr.P.C.; section
53 and 57 of the IPC and Article 20(1) of the Constitution to bolster this
argument.
7. Shri Jaspal Singh, learned senior Advocate appearing in Writ Petition
(Crl.) No.108/2014 also supported Shri Venugopal in demanding a review in
open Court and added one more reason for doing so. In all TADA cases,
there is only one appeal before the Supreme Court and since the judicial
mind is applied only twice, a review being the third bite at the cherry
should also be in open Court.
8. In Writ Petition (Crl.) No.39/2013, it was pointed out by learned
counsel appearing for the petitioner that the Supreme Court can limit time
for oral arguments under Order XLVII Rule 7 of its Rules, and a judgment
from South Africa was pointed out which referred to the Indian law as well
as the law on death penalties from various other nations. Similar
arguments were advanced in Writ Petition (Crl.) No.108 of 2014 and Writ
Petition (Crl.) No. 52 of 2011.
9. Shri Luthra, learned Amicus Curiae made two submissions before us. In
answer to Mr. Venugopal’s alternative plea that even if three learned
Judges and not five learned Judges hear the original appeal, a review can
go to three of the original Judges plus two Judges newly added on, he said
that since a review by its very nature is a discovery by the same bench of
an error committed by them, these (newly added Judges) not being part of
the original bench had no occasion to commit any error, and therefore,
should not be added on. The second submission made before us is that very
often review petitions are inartistically drafted consisting of many
grounds. One good ground which is sufficient is drowned in many other
grounds, and may miss the review court in circulation, hence the need for
oral argument.
10. Shri Ranjit Kumar, learned Solicitor General began his argument by
referring to Section 362 of the Cr.P.C. and saying that ordinarily in all
criminal matters no review is provided. When it was pointed out to him that
the “court” in Section 362 could not possibly refer to the Supreme Court,
and that the review power in criminal cases at the Supreme Court level is
to be found in Art.137 of the Constitution and Order XL of the Supreme
Court Rules, the learned Solicitor General did not seriously press this
contention. He relied on Sajjan Singh vs. State of Rajasthan, (1965) 1 SCR
933 and various other judgments to bolster a submission made by an
exhaustive reading of Krishna Iyer, J. judgment in P.N. Eswara Iyer v.
Registrar, Supreme Court, (1980) 4 SCC 680, where the amendment in Order
XL, Rule 3 of the Supreme Court Rules, 1966 disposing of review petitions
by circulation was upheld by a bench of five Hon’ble Judges. Para 11 of
the said judgment was read out together with para 14 to show that Judges do
collectively apply their minds in Chambers to dispose of review petitions.
In para 16 of the said judgment it was pointed out that the power of oral
hearing is granted earlier when the main appeal is heard and is therefore a
good answer to oral hearing being denied at a review stage. The important
point made here is that the Supreme Court is presently under severe stress
because of its workload and cannot have review petitions which become re-
hearings of the same lis to further damage an already severely strained
judicial system. Para 18 was pointed out to us showing that in the U.S. and
in the U.K. written arguments are often substituted for oral arguments. In
para 22, it was also pointed out that the working of the court would be
disrupted if the two Judges who heard the appeal were to sit together again
after their bench broke to hear a review petition. Interestingly, the
learned Judge refers in para 19 to the justice of the situation including
or excluding oral hearing and in para 25 to which class of cases should be
excluded from oral hearing. It was also pointed out to us that in paras 34
and 35, the learned Judge enlarged the criminal review jurisdiction to
error committed which is apparent from the record – and that the word
“record” should include within it all cases where some new material which
was not adverted to earlier now be taken into account. The learned
Solicitor General also took us through various other judgments in which
this statement of the law has since been followed. [See: Devender Pal Singh
v. State, NCT of Delhi & Another, (2003) 2 SCC 501 at page 508, 509 and Ram
Deo Chauhan v. Bani Kanta Das, (2010) 14 SCC 209 at para 35].
11. In rejoinder, Mr. K.K.Venugopal exhorted us to go into the facts of
his case and told us that the Review Petition in his case has been pending
since the year 2010. He, therefore, argued that the entire matter should
be heard afresh by a bench of three Judges, as both the learned Judges who
heard the original appeal have since retired.
DISCUSSION:
12. In a case like this, we think it apposite to start our discussion
with reference to the judgment of this Court in P.N. Eswara Iyer (supra),
inasmuch as that judgment upheld the amendment in Order XL Rule 3 of the
Supreme Court Rules, which amendment did away with oral hearing of review
petitions in open Court. That is also a judgment of the Constitution Bench
and, therefore, being a judgment of a co-ordinate Bench, is binding on this
Bench. The petitioners in that case had raised two arguments to invalidate
the amendment. The first argument was that oral presentation and open
hearing was an aspect of the basic creed that public justice is to be
rendered from Courts which are open to the public and not in Star Chambers
reminiscent of the Stuart dynasty that ruled England. While answering this
argument, though the Constitution Bench accepted the importance of oral
hearing, generally it took the view that the Court, when it comes to
deciding a review application, decides something very miniscule, and the
amended rule sufficiently meets the requirement of the principle of audi
alteram partem. The Court clarified that deciding a review petition by
‘circulation’ would only mean that there would not be hearing in Court but
still there would be discussion at judicial conference and the Judges would
meet, deliberate and reach a collective conclusion. Thus, rejecting the
argument of oral public hearing, the Court made inter alia the following
observation:
“15. The key question is different. Does it mean that by receiving
written arguments as provided in the new rule, and reading and discussing
at the conference table, as distinguished from the ‘robed’ appearance on
the Bench and hearing oral submissions, what is perpetrated is so
arbitrary, unfair and unreasonable a ‘Pantomimi’ as to crescendo into
unconstitutionality? This phantasmagoric distortion must be dismissed as
too morbid to be regarded seriously – in the matter of review petitions at
the Supreme Court level.
xx xx xx
19. This Court, as Sri Garg rightly emphasised, has assigned special value
to public hearing, and courts are not caves nor cloisters but shrines of
justice accessible for public prayer to all the people. Rulings need not
be cited for this basic proposition. But every judicial exercise need not
be televised on the nation’s network. The right to be heard is of the
essence but hearing does not mean more than fair opportunity to present
one’s point on a dispute, followed by a fair consideration thereof by fair
minded judges. Let us not romanticise this process nor stretch it to snap
it. Presentation can be written or oral, depending on the justice of the
situation. Where oral persuasiveness is necessary it is unfair to exclude
it and, therefore, arbitrary too. But where oral presentation is not that
essential, its exclusion is not obnoxious. What is crucial is the
guarantee of the application of an instructed, intelligent, impartial and
open mind to the points presented. A blank judge wearied by oral
aggression is prone to slumber while an alert mind probing the ‘papered’
argument may land on vital aspects. To swear by orality or to swear at
manuscript advocacy is as wrong as judicial allergy to arguments in court.
Often-times, it is the judge who will ask for oral argument as it aids him
much. To be left helpless among ponderous paper books without the oral
highlights of counsel, is counter-productive. Extremism fails in law and
life.”

13. The Court, in the process, also noted that in many other
jurisdictions, there was exclusion of public hearing in such cases.
Further, the Court found justification in enacting such a rule having
regard to mounting dockets and the mindless manner of filing review
petitions in most of the cases.
14. The argument was also raised, predicated on Article 14 of the
Constitution, that Order XL Rule 1 provides a wider set of grounds of
review of orders in civil proceedings than in criminal proceedings. The
Court dealt with this argument in paras 34 to 36, and since some of the
observations made in those paras are very significant and relevant for our
purposes, we reproduce verbatim those paras herein:
“34. The rule (Order XL, Rule 1), on its face, affords a wider set of
grounds for review for orders in civil proceedings, but limits the ground
vis-a-vis criminal proceedings to ‘errors apparent on the face of the
record’. If at all, the concern of the law to avoid judicial error should
be heightened when life or liberty is in peril since civil penalties are
often less traumatic. So, it is reasonable to assume that the framers of
the rules could not have intended a restrictive review over the criminal
orders or judgments. It is likely to be the other way about. Supposing an
accused is sentenced to death by the Supreme Court and the ‘deceased’ shows
up in court and the court discovers the tragic treachery of the recorded
testimony. Is the court helpless to review and set aside the sentence of
hanging? We think not. The power to review is in Article 137 and it is
equally wide in all proceedings. The rule merely canalises the flow from
the reservoir of power. The stream cannot stifle the source. Moreover,
the dynamics of interpretation depend on the demand of the context and the
lexical limits of the test. Here ‘record’ means any material which is
already on record or may, with the permission of the court, be brought on
record. If justice summons the judges to allow a vital material in, it
becomes part of the record; and if apparent error is there, correction
becomes necessitous.
35. The purpose is plain, the language is elastic and interpretation of a
necessary power must naturally be expansive. The substantive power is
derived from Article 137 and is as wide for criminal as for civil
proceedings. Even the difference in phraseology in the rule (Order 40,
Rule 2) must, therefore, be read to encompass the same area and not to
engraft an artificial divergence productive of anomaly. If the expression
‘record’ is read to mean, in its semantic sweep, any material even later
brought on record, with the leave of the court, it will embrace subsequent
events, new light and other grounds which we find in Order 47, Rule 1, CPC.
We see no insuperable difficulty in equating the area in civil and
criminal proceedings when review power is invoked from the same source.
36. True, the review power vis-a-vis criminal matters was raised only
in the course of the debate at the Bar. But when the whole case is before
us we must surely deal comprehensively with every aspect argued and not
piece-meal with truncated parts. That will be avoidance of our obligation.
We have, therefore, cleared the ground as the question is of moment, of
frequent occurrence and was mooted in the course of the hearing. This
pronouncement on review jurisdiction in criminal proceedings set at rest a
possible controversy and is as much binding on this Court itself (unless
overruled) as on litigants. That is the discipline of the law of
precedents and the import of Article 141.”

15. It is, thus, clear from the reading of the aforesaid judgment that
the very rule of deciding review petitions by ‘circulation’, and without
giving an oral hearing in the open Court, has already been upheld. In such
a situation, can the petitioners still claim that when it comes to deciding
the review petitions where the death sentence is pronounced, oral hearing
should be given as a matter of right?
16. We may like to state at this stage itself that we are going to answer
the above question in the affirmative as our verdict is that in review
petitions arising out of those cases where the death penalty is awarded, it
would be necessary to accord oral hearing in the open Court. We will
demonstrate, at the appropriate stage, that this view of ours is not
contrary to P.N. Eswara Iyer (supra), and in fact, there are ample
observations in the said Constitution Bench judgment itself, giving enough
space for justifying oral hearing in cases like the present.
17. As the determination of this case has to do with the fundamental
right to life, which, among all fundamental rights, is the most precious to
all human beings, we need to delve into Article 21 which reads as follows:
“21. Protection of life and personal liberty.—No person shall be deprived
of his life or personal liberty except according to procedure established
by law.”

18. This Article has its origin in nothing less than the Magna Carta,
(the 39th Article) of 1215 vintage which King John of England was forced to
sign by his Barons. It is a little known fact that this original charter
of liberty was faulted at the very start and did not get off the ground
because of a Papal Bull issued by Pope Innocent the third declaring this
charter to be void. Strangely, like Magna Carta, Art. 21 did not get off
the ground for 28 years after which, unshackled, it has become the single
most important fundamental right under the Constitution of India, being
described as one of a holy trinity consisting of a ‘golden triangle’ (see
Minerva Mills v. Union of India 1981 (1) SCR 206 at 263), and being one of
two articles which cannot be eclipsed during an emergency (Article 359 as
amended by the Constitution 44th Amendment).
19. It is to be noted that Article 21 as it originally stood in the Draft
Constitution was as follows (Cl.15):—
“No person shall be deprived of his life or liberty without due process of
law.”

20. The Drafting Committee introduced two changes in the Clause – (i)
They qualified the word ‘liberty’ by the word ‘personal’ in order to
preclude a wide interpretation of the word so as not to include the
freedoms which had already been dealt with in Art.13 (corresponding to Art.
19 of the Constitution). (ii) They also substituted the words “due process
of law” by the words “procedure established by law”, following the Japanese
Constitution (Art. XXXI), because they were more ‘specific’.
21. Over the question whether the expression ‘due process of law’ should
be restored in place of the words ‘procedure established by law’, there was
a sharp difference of opinion in the Constituent Assembly, even amongst the
members of the Drafting Committee. On the one side, was the view of Sri
Munshi, in favour of ‘due process’.
22. On the other side, was Sri Alladi Krishnaswami Iyer, who favoured the
taking of life and liberty by legislation.
Dr. Ambedkar merely summed up the two views and left it to the House “to
decide in any way it likes”.
The House adopted the Clause as drafted by the Drafting Committee,
rejecting “due process”. The result, as stated by Dr. Ambedkar, at a
subsequent stage, was that Art.21 gave “a carte blanche to make and provide
for the arrest of any person under any circumstances as Parliament may
think fit.”
23. As was stated by the Supreme Court in A.K. Gopalan v. The State of
Madras, 1950 SCR 88, Article 21 seems to have been borrowed from Article 31
of the then recently enacted Japanese Constitution. This was in keeping
with B.N. Rau’s view who, in his initial draft of the Fundamental Rights
Chapter, followed the advice of U.S. Supreme Court Justice Frankfurter not
to incorporate “due process” from the 5th amendment to the U.S.
Constitution. The result was that so far as property was concerned, a full
blown ‘due process’ was introduced in Articles 19(1)(f) and 31 of the
Constitution. The 5th amendment of the U.S. Constitution was thus
bifurcated – a full blown substantive due process qua property, and
procedure established by law qua life and personal liberty. It took 28
years for India to remedy this situation. By the Constitution 44th
amendment Act, even the truncated right to property was completely deleted,
and in the same year in Maneka Gandhi v. Union of India, (1978) 2 SCR 621,
the Supreme Court held that the procedure established by law cannot be
arbitrary but should be just, fair and reasonable.
24. A six Judge Bench of the Supreme Court in A.K. Gopalan’s case
construed Art.21 linguistically and textually. Kania, J. held:
“Four marked points of distinction between the clause in the American
Constitution and Article 21 of the Constitution of India may be noticed at
this stage. The first is that in USA’s Constitution the word “liberty” is
used simpliciter while in India it is restricted to personal liberty. (2)
in USA’s Constitution the same protection is given to property, while in
India the fundamental right in respect of property is contained in Article
31. (3) The word “due” is omitted altogether and the expression “due
process of law” is not used deliberately, (4) The word “established” is
used and is limited to “Procedure” in our Article 21.” (at page 109)

In the picturesque language of Das, J. it was stated:

“It is said that if this strictly technical interpretation is put upon
Article 21 then it will not constitute a fundamental right at all and need
not have been placed in the chapter on Fundamental Rights, for every
person’s life and personal liberty will be at the mercy of the Legislature
which, by providing some sort of a procedure and complying with the few
requirements of Article 22, may, at any time, deprive a person of his life
and liberty at its pleasure and whim. … Subject to the limitations, I
have mentioned which are certainly justiciable, our Constitution has
accepted the supremacy of the legislative authority and, that being so, we
must be prepared to face occasional vagaries of that body and to put up
with enactments of the nature of the atrocious English statute to which
learned counsel for the petitioner has repeatedly referred, namely, that
the Bishop of Rochester’s cook be boiled to death. If Parliament may take
away life by providing for hanging by the neck, logically there can be no
objection if it provides a sentence of death by shooting by a firing squad
or by guillotine or in the electric chair or even by boiling in oil. A
procedure laid down by the legislature may offend against the Court’s sense
of justice and fair play and a sentence provided by the legislature may
outrage the Court’s notions of penology, but that is a wholly irrelevant
consideration. The Court may construe and interpret the Constitution and
ascertain its true meaning but once that is done the Court cannot question
its wisdom or policy. The Constitution is supreme. The Court must take the
Constitution as it finds it, even if it does not accord with its
preconceived notions of what an ideal Constitution should be. Our
protection against legislative tyranny, if any, lies in the ultimate
analysis in a free and intelligent public opinion which must eventually
assert itself.” (at page 319-321)

25. In Kharak Singh v. State of U.P., (1964) 1 SCR 332, Gopalan’s reading
of fundamental rights in watertight compartments was reiterated by the
majority. However, they went one step further to say that “personal
liberty” in Art.21 takes in and comprises the residue after all the rights
granted by Art.19.
Justices Subba Rao and Shah disagreed. They held:
“The fundamental right of life and personal liberty have many attributes
and some of them are found in Art. 19. If a person’s fundamental right
under Art. 21 is infringed, the State can rely upon a law to sustain the
action; but that cannot be a complete answer unless the said law satisfies
the test laid down in Art. 19(2) so far as the attributes covered by
Art. 19(1) are concerned. In other words, the State must satisfy that both
the fundamental rights are not infringed by showing that there is a law and
that it does amount to a reasonable restriction within the meaning of
Art. 19(2) of the Constitution. But in this case no such defence is
available, as admittedly there is no such law. So the petitioner can
legitimately plead that his fundamental rights both under Art. 19(1)(d) and
Art. 21 are infringed by the State.” (at page 356-357)

26. The minority judgment of Subba Rao and Shah, JJ. eventually became
law in R.C. Cooper (Bank Nationalisation) vs. Union of India, (1970) 1 SCC
248, where the 11-Judge Bench finally discarded Gopalan’s view and held
that various fundamental rights contained in different articles are not
mutually exclusive:

“We are therefore unable to hold that the challenge to the validity of the
provision for acquisition is liable to be tested only on the ground of non-
compliance with Article 31(2). Article 31(2) requires that property must be
acquired for a public purpose and that it must be acquired under a law with
characteristics set out in that Article. Formal compliance with the
conditions under Article 31(2) is not sufficient to negative the protection
of the guarantee of the right to property. Acquisition must be under the
authority of a law and the expression “law” means a law which is within the
competence of the Legislature, and does not impair the guarantee of the
rights in Part III. We are unable, therefore, to agree that
Articles 19(1)(f) and 31(2) are mutually exclusive.” (para 53)

27. The stage was now set for the judgment in Maneka Gandhi. Several
judgments were delivered, and the upshot of all of them was that Article 21
was to be read along with other fundamental rights, and so read not only
has the procedure established by law to be just, fair and reasonable, but
also the law itself has to be reasonable as Articles 14 and 19 have now to
be read into Article 21. [See: at page 646-648 per Beg, CJ., at page 669,
671-674, 687 per Bhagwati, J. and at page 720-723 per Krishna Iyer, J.].
Krishna Iyer, J. set out the new doctrine with remarkable clarity thus:
“To sum up, ‘procedure’ in Article 21 means fair, not formal procedure.
‘Law’ is reasonable law, not any enacted piece. As Article 22 specifically
spells out the procedural safeguards for preventive and punitive detention,
a law providing for such detentions should conform to Article 22. It has
been rightly pointed out that for other rights forming part of personal
liberty, the procedural safeguards enshrined in Article 21 are available.
Otherwise, as the procedural safeguards contained in Article 22 will be
available only in cases of preventive and punitive detention, the right to
life, more fundamental than any other forming part of personal liberty and
paramount to the happiness, dignity and worth of the individual, will not
be entitled to any procedural safeguard save such as a legislature’s mood
chooses.”  (at page 723)

28. Close on the heels of Maneka Gandhi’s case came Mithu vs. State of
Punjab, (1983) 2 SCC 277, in which case the Court noted as follows:
“In Sunil Batra vs. Delhi Administration, (1978) 4 SCC 494 while dealing
with the question as to whether a person awaiting death sentence can be
kept in solitary confinement, Krishna Iyer J. said that though our
Constitution did not have a “due process” clause as in the American
Constitution; the same consequence ensued after the decisions in the Bank
Nationalisation’s case (1970) 1 SCC 248 and Maneka Gandhi’s case (1978) 1
SCC 248. …
In Bachan Singh which upheld the constitutional validity of the death
penalty, Sarkaria J., speaking for the majority, said that if Article 21 is
understood in accordance with the interpretation put upon it in Maneka
Gandhi, it will read to say that:

No person shall be deprived of his life or personal liberty except
according to fair, just and reasonable procedure established by valid law.”
(at para 6)

The wheel has turned full circle. Substantive due process is now to
be applied to the fundamental right to life and liberty.

Application of Art.21 to these Writ Petitions:
29. We agree with Shri K.K.Venugopal that death sentence cases are a
distinct category of cases altogether. Quite apart from Art.134 of the
Constitution granting an automatic right of appeal to the Supreme Court in
all death sentence cases, 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. Adverting first to
the second factor mentioned above, it is well known that the basic
principle behind returning the verdict of death sentence is that it has to
be awarded in the rarest of rare cases. There may be aggravating as well
as mitigating circumstances which are to be examined by the Court. At the
same time, it is not possible to lay down the principles to determine as to
which case would fall in the category of rarest of rare cases, justifying
the death sentence. It is not even easy to mention precisely the
parameters or aggravating/mitigating circumstances which should be kept in
mind while arriving at such a question. Though attempts are made by Judges
in various cases to state such circumstances, they remain illustrative
only.
30. Deflecting a little from the death penalty cases, we deem it
necessary to make certain general comments on sentencing, as they are
relevant to the context. Crime and punishment are two sides of the same
coin. Punishment must fit the crime. The notion of ‘Just deserts’ or a
sentence proportionate to the offender’s culpability was the principle
which, by passage of time, became applicable to criminal jurisprudence. It
is not out of place to mention that in all of recorded history, there has
never been a time when crime and punishment have not been the subject of
debate and difference of opinion. There are no statutory guidelines to
regulate punishment. Therefore, in practice, there is much variance in the
matter of sentencing. In many countries, there are laws prescribing
sentencing guidelines, but there is no statutory sentencing policy in
India. The IPC, prescribes only the maximum punishments for offences and
in some cases minimum punishment is also prescribed. The Judges exercise
wide discretion within the statutory limits and the scope for deciding the
amount of punishment is left to the judiciary to reach decision after
hearing the parties. However, what factors which should be considered
while sentencing is not specified under law in any great detail. Emanuel
Kant, the German philosopher, sounds pessimistic when he says “judicial
punishment can never serve merely as a means to further another good,
whether for the offender himself or for the society, but must always be
inflicted on him for the sole reason that he has committed a crime”. A
sentence is a compound of many factors, including the nature of the offence
as well as the circumstances extenuating or aggravating the offence. A
large number of aggravating circumstances and mitigating circumstances have
been pointed out in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 at
pages 749-750, that a Judge should take into account when awarding the
death sentence. Again, as pointed out above, apart from the fact that
these lists are only illustrative, as clarified in Bachan Singh itself,
different judicially trained minds can apply different aggravating and
mitigating circumstances to ultimately arrive at a conclusion, on
considering all relevant factors that the death penalty may or may not be
awarded in any given case. Experience based on judicial decisions touching
upon this aspect amply demonstrate such a divergent approach being taken.
Though, it is not necessary to dwell upon this aspect elaborately, at the
same time, it needs to be emphasised that when on the same set of facts,
one judicial mind can come to the conclusion that the circumstances do not
warrant the death penalty, whereas another may feel it to be a fit case
fully justifying the death penalty, we feel that when a convict who has
suffered the sentence of death and files a review petition, the necessity
of oral hearing in such a review petition becomes an integral part of
“reasonable procedure”.
31. We are of the opinion that “reasonable procedure” would encompass
oral hearing of review petitions arising out of death penalties. The
statement of Justice Holmes, that the life of law is not logic; it is
experience, aptly applies here.
32. The first factor mentioned above, in support of our conclusion, is
more fundamental than the second one. Death penalty is irreversible in
nature. Once a death sentence is executed, that results in taking away the
life of the convict. If it is found thereafter that such a sentence was not
warranted, that would be of no use as the life of that person cannot be
brought back. This being so, we feel that if the fundamental right to life
is involved, any procedure to be just, fair and reasonable should take into
account the two factors mentioned above. That being so, we feel that a
limited oral hearing even at the review stage is mandated by Art.21 in all
death sentence cases.
33. The validity of no oral hearing rule in review petitions, generally,
has been upheld in P.N. Eswara Iyer (supra) which is a binding precedent.
Review petitions arising out of death sentence cases is carved out as a
separate category as oral hearing in such review petitions is found to be
mandated by Article 21. We are of the opinion that the importance of oral
hearing which is recognised by the Constitution Bench in P.N. Eswara Iyer
(supra) itself, would apply in such cases. We are conscious of the fact
that while awarding a death sentence, in most of the cases, this Court
would generally be affirming the decision on this aspect already arrived at
by two Courts below namely the trial court as well as the High Court.
After such an affirmation, the scope of review of such a judgment may be
very narrow. At the same time, when it is a question of life and death of
a person, even a remote chance of deviating from such a decision while
exercising the review jurisdiction, would justify oral hearing in a review
petition. To borrow the words of Justice Krishna Iyer in P.N. Eswara Iyer
(supra):
“23. The magic of the spoken word, the power of the Socratic process and
the instant clarity of the bar-Bench dialogue are too precious to be parted
with”

34. We feel that this oral hearing, in death sentence cases, becomes too
precious to be parted with. We also quote the following observations from
that judgment :

“29A. The possible impression that we are debunking the value of oral
advocacy in open court must be erased. Experience has shown that, at all
levels, the bar, through the spoken word and the written brief, has aided
the process of judicial justice. Justicing is an art even as advocacy is
an art. Happy interaction between the two makes for the functional
fulfillment of the court system. No judicial ’emergency’ can jettison the
vital breath of spoken advocacy in an open forum. Indeed, there is no
judicial cry for extinguishment of oral argument altogether.”

35. No doubt, the Court thereafter reminded us that the time has come for
proper evaluation of oral argument at the review stage. However, when it
comes to death penalty cases, we feel that the power of the spoken word has
to be given yet another opportunity even if the ultimate success rate is
minimal.
36. If a pyramidical structure is to be imagined, with life on top,
personal liberty (and all the rights it encompasses under the new doctrine)
immediately below it and other fundamental rights below personal liberty it
is obvious that this judgment will apply only to death sentence cases. In
most other cases, the factors mentioned by Krishna Iyer, J. in particular
the Supreme Court’s overcrowded docket, and the fact that a full oral
hearing has preceded judgment of a criminal appeal on merits, may tilt the
balance the other way.
37. It is also important to advert to Shri Luthra, learned Amicus
Curiae’s submission. Review Petitions are inartistically drafted. And oral
submissions by a skilled advocate can bring home a point which may
otherwise not be succinctly stated, given the enlarged scope of review in
criminal matters, as stated in P.N. Eswara Iyer’s case. The fact that the
courts overcrowded docket would be able to manage such limited oral
hearings in death sentence cases only, being roughly 60 per annum, is not a
factor to which great weight need be accorded as the fundamental right to
life is the only paramount factor in these cases.
38. With reference to the plea that all death sentence cases be heard by
at least three Hon’ble Judges, that appears to have been remedied by
Supreme Court Rules, 2013, Order VI Rule 3, which has been recently
notified, reads thus:

ORDER VI
CONSTITUTION OF DIVISION COURTS AND POWERS OF A SINGLE JUDGE
3. Every cause, appeal or other proceedings arising out of a case in
which death sentence has been confirmed or awarded by the High Court shall
be heard by a Bench consisting of not less than three Judges.
4. If a Bench of less than three Judges, hearing a cause, appeal or
matter, is of the opinion that the accused should be sentenced to death it
shall refer the matter to the Chief Justice who shall thereupon constitute
a Bench of not less than three Judges for hearing it.

39. Henceforth, in all cases in which death sentence has been awarded by
the High Court in appeals pending before the Supreme Court, only a bench of
three Hon’ble Judges will hear the same. This is for the reason that at
least three judicially trained minds need to apply their minds at the final
stage of the journey of a convict on death row, given the vagaries of the
sentencing procedure outlined above. At present, we are not persuaded to
have a minimum of 5 learned Judges hear all death sentence cases. Further,
we agree with the submission of Shri Luthra that a review is ordinarily to
be heard only by the same bench which originally heard the criminal appeal.
This is obviously for the reason that in order that a review succeeds,
errors apparent on the record have to be found. It is axiomatic that the
same learned Judges alleged to have committed the error be called upon now
to rectify such error. We, therefore, turn down Shri Venugopal’s plea that
two additional Judges be added at the review stage in death sentence cases.
40. We do not think it necessary to advert to Shri Jaspal Singh’s
arguments since we are accepting that a limited oral review be granted in
all death sentence cases including TADA cases. We accept what is pointed
out by the learned counsel for the petitioner in Writ Petition No.39/2013
and provide for an outer limit of 30 minutes in all such cases. When we
come to P. N. Eswara Iyer’s case which was heavily relied upon by the
learned Solicitor General, we find that the reason for upholding the newly
introduced Order XL Rule 3 in the Supreme Court Rules is basically because
of severe stress of the Supreme Court workload. We may add that that stress
has been multiplied several fold since the year 1980. Despite that, as we
have held above, we feel that the fundamental right to life and the
irreversibility of a death sentence mandate that oral hearing be given at
the review stage in death sentence cases, as a just, fair and reasonable
procedure under Article 21 mandates such hearing, and cannot give way to
the severe stress of the workload of the Supreme Court. Interestingly, in
P.N. Eswara Iyer’s case itself, two interesting observations are to be
found. In para 19, Krishna Iyer, J. says that “…presentation can be written
or oral, depending upon the justice of the situation.” And again in para
25, the learned Judge said that “…the problem really is to find out which
class of cases may, without risk of injustice, be disposed of without oral
presentation.”
41. We are of the view that the justice of the situation in this class of
cases demands a limited oral hearing for the reasons given above.
42. Insofar as Shri Venugopal’s plea in his writ petition, that since his
review petition is pending since the year 2010 and since the two learned
Judges who heard the appeal on merits have since retired, the entire matter
should be heard afresh by a bench of three Hon’ble Judges, we feel that the
review petition that is pending since the year 2010 should be disposed of
as soon as possible by a bench of three Hon’ble Judges after giving counsel
a maximum of 30 minutes for oral argument. This matter, therefore, be
placed before a bench of three Hon’ble Judges by the Registry as soon as
possible.
43. Turning now to the facts of W.P.No.77/2014, we find that the
petitioner was arrested on 25.12.2000 and convicted by the learned Sessions
Judge on 31-10-2005. The High Court dismissed his appeal on 13.9.2007 and
the Supreme Court dismissed the appeal from the High Court’s judgment on
10.8.2011. The Review Petition of the petitioner was, thereafter, dismissed
on 28.8.2012. We are informed at the bar that a curative petition was
thereafter filed sometime in 2013 which was dismissed on 23.1.2014. All
along, the petitioner has been in jail for about 13½ years. Since the
curative petition also stands dismissed after the dismissal of review
petition, we would not like to reopen all these proceedings at this stage.
Also, time taken in court proceedings cannot be taken into account to say
that there is a delay which would convert a death sentence into one for
life. [See: Triveniben v. State of Gujarat, (1989) 1 SCC 678, at paras 16,
23, 72]. Equally, spending 13½ years in jail does not mean that the
petitioner has undergone a sentence for life. It is settled by Swamy
Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 that awarding a
sentence of life imprisonment means life and not a mere 14 years in jail.
In this case, it was held as follows:
“75. It is now conclusively settled by a catena of decisions that the
punishment of imprisonment for life handed down by the Court means a
sentence of imprisonment for the convict for the rest of his life. [See the
decisions of this Court in Gopal Vinayak Godse v. State of Maharashtra
(Constitution Bench), Dalbir Singh v. State of Punjab, Maru Ram v. Union of
India (Constitution Bench), Naib Singh v. State of Punjab, Ashok Kumar v.
Union of India, Laxman Naskar v. State of W.B., Zahid Hussein v. State of
W.B., Kamalanantha v. State of T.N., Mohd. Munna v. Union of India and C.A.
Pious v. State of Kerala.]
76. It is equally well settled that Section 57 of the Penal Code does not
in any way limit the punishment of imprisonment for life to a term of
twenty years. Section 57 is only for calculating fractions of terms of
punishment and provides that imprisonment for life shall be reckoned as
equivalent to imprisonment for twenty years. (See: Gopal Vinayak Godse and
Ashok Kumar). The object and purpose of Section 57 will be clear by simply
referring to Sections 65, 116, 119, 129 and 511 of the Penal Code.”

44. Regard being had to this, it is not necessary to refer to the various
sections of the Cr.P.C. and the Penal Code argued before us. Equally,
Article 20(1) has no manner of application as the writ petitioner is not
being subjected to a penalty greater than that which might have been
inflicted under the law in force at the time of commission of the offence.
45. This petition is therefore dismissed.
46. We make it clear that the law laid down in this judgment, viz., the
right of a limited oral hearing in review petitions where death sentence is
given, shall be applicable only in pending review petitions and such
petitions filed in future. It will also apply where a review petition is
already dismissed but the death sentence is not executed so far. In such
cases, the petitioners can apply for the reopening of their review petition
within one month from the date of this judgment. However, in those cases
where even a curative petition is dismissed, it would not be proper to
reopen such matters.
47. All the writ petitions are disposed of accordingly.
……………………………CJI
(R.M. Lodha)
……………………………..J.
(Jagdish Singh Khehar)

……………………………..J.
(A.K. Sikri)
……………………………..J.
(Rohinton Fali Nariman)
New Delhi,
2nd September, 2014
———————–
[1]

53. Punishments- The punishments in which offenders are liable
under the provisions of this Code are-
First – Death;
Secondly – Imprisonment for life;
Thirdly – [Omitted by Act 17 of 1949, sec. 2 (wef 6.4.1949)]
Fourthly – Imprisonment, which is of two descriptions, namely –
(1) Rigorous, that is, with hard labour;
(2) Simple;
Fifthly – Forfeiture of property;
Sixthly- Fine.
[2]
[3] The offences for which death is one of the alternative
punishments under IPC are under Sections 121, 132, 194, 302, 305, 307(3),
364A and 376A, 376E and 396.
[4] 28. Sentences which High Courts and Sessions Judges may pass:
(1) A High Court may pass any sentence authorised by law
(2) A Sessions Judge or Additional Sessions Judge may pass any
sentence authorised by law; but any sentence of death passed by any such
Judge shall be subject to confirmation by the High Court
(3) An Assistant Sessions Judge may pass any sentence authorised by
law except a sentence of death or of imprisonment for life or of
imprisonment for a term exceeding ten years

[5] 29. Sentences which Magistrates may pass
(1) The Court of a Chief Judicial Magistrate may pass any sentence
authorised by law except a sentence of death or of imprisonment for life or
of imprisonment for a term exceeding seven years
(2) The Court of a Magistrate of the first class may pass a sentence
of imprisonment for a term not exceeding three years, or of fine not
exceeding five thousand rupees, or both
(3) The Court of a Magistrate of the second class may pass a sentence
of imprisonment for a term not exceeding one year, or of fine not exceeding
one thousand rupees, or of both
(4) The Court of a Chief Metropolitan Magistrate shall have the
powers of the Court of a Chief Judicial Magistrate and that of a
Metropolitan Magistrate, the powers of the Court of a Magistrate of the
first class

[6] 134. Appellate jurisdiction of Supreme Court in regard to criminal
matters.-
(1) An appeal shall lie to the Supreme Court from any judgment, final
order or sentence in a criminal proceeding of a High Court in the territory
of India if the High Court-
(a) has on appeal reversed an order of acquittal of an accused person
and sentenced him to death; or
(b) has withdrawn for trial before itself any case from any court
subordinate to its authority and has in such trial convicted the accused
person and sentenced him to death; or
(c) certifies under article 134A that the case is a fit one for
appeal to the Supreme Court:
Provided that an appeal under sub-clause (c) shall lie subject to
such provisions as may be made in that behalf under clause (1) of article
145 and to such conditions as the High Court may establish or require.
(2) Parliament may by law confer on the Supreme Court any further
powers to entertain and hear appeals from any judgment, final order or
sentence in a criminal proceeding of a High Court in the territory of India
subject to such conditions and limitations as may be specified in such law.
[7] For the sake of clarity, it needs to be mentioned that the Supreme
Court Rules, 1966 have been dealt with as it existed during the course of
hearing of these matters. W.e.f. 19th August 2014, the Supreme Court
Rules, 2013 have come into force.
[8] Article 145. Rules of Court, etc.— (1) Subject to the provisions of
any law made by Parliament, the Supreme Court may from time to time, with
the approval of the President, make rules for regulating generally the
practice and procedure of the Court including;

(e) rules as to the conditions subject to which any judgment
pronounced or order made by the Court may be reviewed and the procedure for
such review including the time within which applications to the Court for
such review are to be entered.

———————–
23
10

63

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