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,

1
Page 1
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

2
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 JUDGMENT

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

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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.

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3. Section 531 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.

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

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.

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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 294 of the CrPC

prescribe the punishment which the various courts in the

3
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

4
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
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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.

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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:-

(i) 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.

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

(ii) 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.

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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.

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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 15 th

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.”

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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

5
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.

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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

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 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

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Court Rules, 19666. 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 9 th August, 1978 with

effect from 19th August, 1978.

6
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. 19 th August 2014, the Supreme Court
Rules, 2013 have come into force.

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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

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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

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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…..”

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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.

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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

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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

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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.

7
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.

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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 –

1. 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.

2. 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

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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

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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.

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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

WRIT PETITION (CRIMINAL) NO.39 OF 2013

Page 25
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

JUDGMENT

R.F. Nariman, J.

1. This group of petitions has come before the

Constitution Bench by a referral Order dated 28 th April, 2014.

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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

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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

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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

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Page 29
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

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Page 30
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

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Page 31
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.

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Page 32
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

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Page 33
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

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Page 34
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

35
Page 35
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.

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Page 36
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

37
Page 37
 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:

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Page 38
“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

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Page 39
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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Page 40
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

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Page 41
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 44 th

Amendment).

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Page 42
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’.

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Page 43
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 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.

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Page 44
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 44 th 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

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Page 45
 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

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Page 46
 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

47
Page 47
 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)

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Page 48
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

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Page 49
 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)

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Page 50
 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

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Page 51
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

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Page 52
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,

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(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”.

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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

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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”

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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

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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.

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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

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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

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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.”

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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

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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

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 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.

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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)

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 ……………………………..J.
(Rohinton Fali Nariman)
New Delhi,
2nd September, 2014

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