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

Signature Not Verified

Digitally signed by
NEETU KHAJURIA
Versus
Date: 2014.09.02
17:22:04 IST
Reason:

Registrar,
Supreme Court of India … Respondent

1
 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
 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 cannot be

deprived of his life except according to procedure established

3
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.

4
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 offences2. 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.

4. Apart from the Penal Code, some other special

enactments also create offences for which death penalty is one

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.

5
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 hierarchy of the criminal justice administration system

can pass.

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
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.

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:-

7
(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.

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

8
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. Hence, the requirement under

Section 368 is to await the decision in the appeal preferred by

the accused against the finding of guilt.

9
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.”

10. Section 369 CrPC further stipulates that every case

referred under Section 366 to the High Court shall be heard

10
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 withdraws for trial

before itself any case pending before a court subordinate to it

and convicts the accused person and awards death sentence

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.

11
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
Parliament or any rules made under Article 145, the
Supreme Court shall have power to review any judgment
pronounced or order made by it.

12
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 Court

Rules, 19666. Order XL of the said Rules occurring in Part

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.

13
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.

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.

14
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 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…..”

15
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 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

16
 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…..”

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

17
 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.

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)

18
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 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.

19
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 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

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.

20
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.

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.

21
 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

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

22
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 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.

23
 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

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. In each of

25
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 lasts. [See: Sher Singh v. State

of Punjab, (1983) 2 SCC 345 at para 16; Shatrughan Chauhan

26
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 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

27
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

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.

28
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 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

29
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 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.

30
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.

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

31
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

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

32
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 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].

33
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

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

34
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. 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

35
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 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.”

36
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:

“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

37
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
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.

38
 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.”

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

39
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 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

40
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 44th Amendment).

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’.

41
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’.

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

42
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

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 44th 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

43
 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 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

44
 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 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

45
 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 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

46
 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)

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

47
 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 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:

48
 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)

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

49
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 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.

50
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 number of aggravating circumstances and

51
mitigating circumstances have been pointed out in Bachan

Singh v. State of Punjab, (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

52
oral hearing in such a review petition becomes an integral part

of “reasonable procedure”.

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

53
is a binding precedent. Review petitions arising out of death

sentence cases is carved out as a separate category as oral

hearing in such review petitions is found to be mandated by

Article 21. 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

55
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.

38. With reference to the plea that all death sentence cases

be heard by at least three Hon’ble Judges, that appears to

56
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 stage of

the journey of a convict on death row, given the vagaries of the

sentencing procedure outlined above. At present, we are not

57
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 relied upon by

the learned Solicitor General, we find that the reason for

upholding the newly introduced Order XL Rule 3 in the

58
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.”

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.

59
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 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

60
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 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.]

61
 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.

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

62
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)

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

63
ITEM NO.1B COURT NO.1 SECTION X
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

WRIT PETITION (CRIMINAL) NO.77 OF 2014

Mohd. Arif @ Ashfaq … Petitioner(s)

Versus

The Registrar,
Supreme Court of India & Others … Respondent(s)

WITH

WRIT PETITION (CRIMINAL) NO.137 OF 2010

WRIT PETITION (CRIMINAL) NO.52 OF 2011

WRIT PETITION (CRIMINAL) NO.39 OF 2013

WRIT PETITION (CRIMINAL) NO.108 OF 2014

WRIT PETITION (CRIMINAL) NO.117 OF 2014

Date : 02/09/2014 These petitions were called on for

pronouncement of judgment today.

For Petitioner(s) Mr. Tripurari Ray, Adv.

Mr. B.S. Billowaria, Adv.
Mr. Anil Kaushik, Adv.
Mr. Rajinder Singh, Adv.
Mr. Vishnu Sharma,Adv.

Mr. Gopal Sankaranarayanan, Adv.

Ms. Suhasini Sen, Adv.
Mr. Vikramditya, Adv.
Mr. Vikas Mehta,Adv.

Mr. Rishabh Sancheti, Adv.

Mr. Prabhu, Adv.
 Mr. Paarivardhan, Adv.
For Mr. P.S. Sudheer, Adv.

Mr. Ankolekar Gurudatta,Adv.

Mr. Renjith. B,Adv.

Mrs. Priya Puri,Adv.

For Respondent(s) Mr. B. V. Balaram Das,Adv.

Mr. M. Yogesh Kanna, Adv.

Mr. A. Santha Kumaran, Adv.
Ms. Vanita C. Giri, Adv.

Mr. C. D. Singh, Adv.

Hon'ble Mr. Justice Rohinton Fali Nariman

pronounced the majority judgment in the above writ
petitions comprising Hon'ble the Chief Justice,
Hon'ble Mr. Justice Jagdish Singh Khehar, Hon'ble
Mr. Justice A.K. Sikri and His Lordship.
Writ petitions are disposed of in terms of the
signed reportable Judgment.
Hon'ble Mr. Justice J. Chelameswar also
pronounced a separate but dissenting judgment.

(Neetu Khajuria) (Renu Diwan)

Sr.P.A. Court Master

(Two signed reportable judgments are placed on the file.)

65