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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
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3. The 187
th
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 Honble 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
6
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
12
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
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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.
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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
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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 39
th
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 44
th
Amendment).
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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. Raus 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 5
th
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 5
th
amendment of the U.S. Constitution was thus
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25. In Kharak Singh v. State of U.P., (1964) 1 SCR 332, Gopalans
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
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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
legislatures mood chooses. (at page 723)
28. Close on the heels of Maneka Gandhis 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
25
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
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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 Honble 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.
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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 Iyers 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 Venugopals 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
Honble Judges, we feel that the review petition that is pending
36
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.
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