Oral hearing of Review Petition allowed in Bombay Blast case

Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India & Ors.


In the writ petitions, the execution of the death sentence awarded to the petitioners had been stayed. The contention of the petitioners was that (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 were denied an oral hearing.

The Supreme Court observed that the Court had earlier in P.N. Eswara Iyer & Others v. Registrar, Supreme Court of India, (1980) 4 SCC 680, 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. On the question that in a situation, when the rule of deciding review petitions by ‘circulation’, and without giving an oral hearing in the open Court, had already been upheld, could the petitioners still claim that when it came to deciding the review petitions where the death sentence was pronounced, oral hearing should be given as a matter of right, the Supreme Court answered in affirmative. It held that in review petitions arising out of those cases where death penalty was awarded, it would be necessary to accord oral hearing in the open Court.  The Court held that it was not contrary to P.N. Eswara Iyer, and in fact, there were ample observations in the said Constitution Bench judgment justifying oral hearing in cases like the present.

On the issue of application of Art.21 to the present Writ Petitions the Court agreed with the contentions of the petitioner that death penalty was irreversible and also that different judicially trained minds could arrive at conclusions which, on the same facts, could be diametrically opposed to each other.  The Court observed that the basic principle behind returning the verdict of death sentence was that it had to be awarded in the rarest of rare cases. There might be aggravating as well as mitigating circumstances which were to be examined by the Court. It was not possible to lay down the principles to determine as to which case would fall in that category. It was 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 such attempts by Judges remained illustrative only. On the same set of facts, one judicial mind could come to the conclusion that the circumstances do not warrant the death penalty, whereas another might feel it to be a fit case fully justifying the death penalty. The Court opined that “reasonable procedure” as enshrined in Article 21 would encompass oral hearing of review petitions arising out of death penalties. Hence a limited oral hearing even at the review stage was mandated by Art.21 in all death sentence cases.

Thus review petitions arising out of death sentence cases was carved out as a separate category as oral hearing in such review petitions was found to be mandated by Article 21. The Court opined that the importance of oral hearing which was recognised by the Constitution Bench in P.N. Eswara itself, would apply in such cases. Referring to Justice Krishna Iyer in P.N.Eswara case:

“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”, the Supreme Court observed that oral hearing, in death sentence cases, becomes too precious to be parted with.

With reference to the plea that all death sentence cases be heard by at least three Judges, the Court observed that the same had been remedied by Supreme Court Rules, 2013, Order VI Rule 3. The Court held that henceforth, in all cases in which death sentence had 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.

The Court agreed with the contention that a review was ordinarily to be heard only by the same bench which originally heard the criminal appeal as errors apparent on the record had to be found. It was axiomatic that the same Judges alleged to have committed the error be called upon now to rectify such error. Hence the court turned down the plea that two additional Judges be added at the review stage in death sentence cases. The Court held that a limited oral review be granted in all death sentence cases including TADA cases and provided for an outer limit of 30 minutes in all such cases.

The Court thus held 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 mandated such hearing.