“When a convict who has suffered a sentence of death and files a review petition, the necessity of oral hearing in such a petition becomes an integral part of ‘reasonable procedure’.”
Recently, the Constitutional Bench of Supreme Court of India, in Mohd. Aarif v. Registrar, Supreme Court of India, held that review petitions of death penalty need to be heard by three-judge bench in open court, thus doing away with the practice of hearing of review petitions by two-judge bench in their chambers. The decision was a majority judgement of 4:1 ratio. The bench was headed by Chief Justice of India, R.M. Lodha. The majority judgement was authored by Justice Rohinton Nariman while the minority judgement was given by Justice Chalmeshwar.
The basis for the arguments of the counsels of the petitioners was that Art. 21 mandates distinct classification for death penalty review petitions and it is obligatory for the Supreme Court to treat the these review petitions differently and therefore, should be heard by at least three judges bench if not five judges, and the hearing should be done in open courts rather than hearing them in chambers. They put forth various examples by which death penalty review petitions are different and therefore, need the application of judicial mind of more than two judges and that too in open courts. They challenged the constitutional validity of Order XL Rule 3 of Supreme Court Rules, 1966 which denied death penalty row convicts an oral hearing in their review petitions.
The first argument made was that death penalty is irreversible. So, once a convict is executed and the court later finds out any error, the court can’t do anything because the life of the convict can’t be brought back. Art.21 provides right to existence so, if this right of convicts is not protected, the whole article gets meaningless. They also argued that the award of death sentence depends upon the inconsistencies of application of judicial mind while considering the rarest of rare cases and evaluating different aggravating and mitigating factors. There are no fixed contours or parameters for examining the rarest of the rare case or different aggravating/mitigating factors.
They also argued that many death row prisoners also include those convicts whose cases have been tried by TADA courts. Only one appeal lies from TADA courts in the Supreme Court , therefore, it is reasonable that they should be given one more chance of open hearing.
The respondent on the other side, argued that the constitutional validity of these rules have already been upheld by constitutional bench of Supreme Court in P.N. Eswara Iyer v. Registrar , Supreme Court. They also argued that Art. 21 of the Indian Constitution do not require any such reading which requires treating death penalty review petitions as different and therefore, should be heard in open. They argued that hearing through circulation( hearing in chambers) do not mean that they there will be no application of judicial mind but the only difference is that the hearing will not be done in open courts and it is reasonable seeing the already over-burdened judiciary.
The court had to decide that whether, despite the judgement of Constitutional bench in P.N. Eswara case, the death row prisoners ask for open hearing of their review petitions as a matter of right.
The majority felt that there is a need for such change and Art. 21 does require that the they should be given open hearing as a matter of right. The majority was impressed by the argument that the capital punishment once executed is irreversible. The court discussed the phrase “procedure established by law” in Art. 21 of Indian Constitution. In the Draft Constitution, the phrase used was “due process of law”. The Constituent Assembly was divided over the aspect of deciding the phrase out of these two .However, they later changed it to the “procedure established by law. The Supreme Court had to deal with the interpretation of this phrase in various cases. In cases like A.K. Gopalan etc, it held that the phrase means the law enacted by the Legislature in accordance with the procedure and the Article does not require the reading of any other elements like reasonableness etc. However, finally in Maneka Gandhi case, the Supreme Court held that procedure is not just the formal procedure,. The law had to be “reasonable”. The procedure must be just, fair and reasonable.
The court held that award of capital punishment is subject to the vagaries of the application of judicial mind. There are no fixed criterion/criteria. Moreover, once executed, it is irreversible. Therefore, the procedure of confirming death penalty to the convicts must be fair and reasonable. Order VI of Rule 3 of Supreme Court Rules, 2013 already mandates the hearing of review petition by three-judge bench, however, the change which is brought by this judgement is that they will be given an oral hearing.
The court also ruled that by giving this judgement they are not in contradiction to the P.N. Eswara Iyer case. The court in that case upheld the constitutionality of the rules but also ruled that different classes of cases can be made which require oral hearing and which do not. The court, however, did not create the classification. The Supreme Court in this case ruled that the previous case gives enough scope to hold death penalty review petitions as different class for the above said reasons.
The court awarded oral hearing to review petitions in all the death penalty cases including those emerging from TADA courts. However, the court created an exception to this rule. It ruled that this will be applicable to only those review petitions which are pending or yet to be filed. The court also allowed the reopening of decided review petitions before this case within one month of the judgement, however, those cases , in which curative petitions are already dismissed, can’t claim the benefit.
The Supreme Court has given a new ray of hope to these convicts. However, this benefit is limited. Also, the allowance of reopening the cases within one month in which curative petitions have not been dismissed also gives a very limited ray of hope to the thousands of convicts languishing in prisons. 30 days time period is very less and much depends upon the activeness and awareness of these convicts and their counsels to get their cases reopened. The Supreme Court has provided another chance but it is very limited and it can be utilized properly only if the counsels work really to bring justice to those convicts who actually need them and do not misuse them to bring relief only to the rich ones.
About the Author
Kanchan is a second year law student at National Law University, Delhi. Out of the subjects that she has studied till now, she takes interests in criminal Law. Her hobbies include painting, watching movies, listening to songs etc.
 1980 (4) SCC 680.