Review Petitions in Death Sentence Cases not to be by Circulation; only in Open Court & by Bench of atleast Three Judges

  

"When it comes to death penalty cases, we feel that the power of spoken word has to be given yet another opportunity even if the ultimate success rate is minimal."

A five-judge bench of the Hon’ble Supreme Court of India, headed by Chief Justice R.M. Lodha, by 4-1 majority, in the case of Mohd. Arif @ Ashfaq vs. The Registrar Supreme Court of India & Ors. threw to the wind its approx. 60-year-old rule  and held that hearing of Review Petitions of convicts on death row should not be by circulation but should only be in open Court. The Hon’ble Court further held that hearing of matters in which a death sentence has been passed should be by a Bench of at least three Supreme Court Judges. The majority Judgement was drafted by Hon’ble Justice R.F.Nariman while the dissenting opinion was passed by Justice Chelameshar.

Full text of Judgement can be found here.

Basic Issues:

1)    Whether 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.

2)    Whether hearing of Review Petitions in death sentence cases should not be by circulation but instead 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.

It is pertinent to note that the Hon’ble Apex Court had earlier in its judgment in P.N. Eswara Iyer v. Registrar, Supreme Court, (1980) 4 SCC 680, upheld the the amendment in Order XL, Rule 3 of the Supreme Court Rules, 1966 which provided for disposing of review petitions by circulation.

Ratio Decidendi:

The Court stated that in reaching the conclusion they were impressed by two factors:

1)     The irreversibility of a death penalty.

“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.”

2)    The fact that different judicially trained minds can arrive at conclusions which, on the same facts, can be diametrically opposed to each other.

The Hon’ble Court also appreciated the point raised by the  amicus curiae Mr. Luthra that review petitions are inartistically drafted. And oral submissions by a skilled lawyer can bring home a point which may otherwise not be succinctly stated, given the enlarged scope of review in criminal matters."

Since death sentence cases are roughly 60 per year, over burdening of the Court was not a relevant factor.

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 Keywords: death penalty, death sentence, capital punishment, india, Supreme Court of India, Constitution of India, Article 21, right to life, Mohd. Arif @ Ashfaq vs. The Registrar Supreme Court of India & Ors. ,