Mohd. Arif and Ors. Vs. Registrar, Supreme Court of India and Ors.

Judges: R.M. Lodha, C.J.I., J.S. Khehar, A.K. Sikri, Rohinton Fali Nariman and Jasti Chelameswar, JJ.

Facts:

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.

Issue:

(i) Whether 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?

(ii) Whether 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?

(iii) Whether 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?

Law:

Supreme Court Rules, 2013 - Order VI Rule 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.

Supreme Court Rules, 2013 - Order VI Rule 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.

Contentions:

Petitioners

(i) Death sentence cases are a distinct category of cases altogether. 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.

(ii) Article 134 of the Constitution allows an automatic right of appeal to the Supreme Court in all death sentence cases. Further, Section 354(3) of the Code of Criminal Procedure 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.

(iii) 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.

(iv) 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.

(v) 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.

(vi) Writ Petition (Crl.) No. 77/2014: 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.

Amicus Curiae

(i) 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.

(ii) 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 oralargument.

Analysis:

Oral hearing of review petition and constitutionality of Order XL Rule 3 of the Supreme Court Rules

(i) In P.N. Eswara Iyer (supra), the amendment in Order XL Rule 3 of the Supreme Court Rules, which did away with oral hearing of review petitions in open Court has been upheld. That is also a judgment of the Constitution Bench and, therefore, being a judgment of a co-ordinate Bench, is binding on this Bench.

(ii) 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, 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. Thus, a limited oral hearing even at the review stage is mandated by Article 21 in all death sentence cases.

(iii) The validity of no oral hearing rule in review petitions has been upheld in P.N. Eswara Iyer, 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. Thus, the importance of oral hearing which is recognised by the Constitution Bench in P.N. Eswara Iyer (supra) itself, would apply in such cases.

Hearing by Three Judge Bench

(i) As per the provisions of Supreme Court Rules, 2013, 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.

Conclusion:

(i) 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.

(ii) All the writ petitions are disposed of accordingly.