MOHD. ARIF @ASHFAQ v. THE REGISTRAR, SUPREME COURT OF INDIA & Ors.

Judgment

• [2014] 11 $.C.R. 1009 MOHD. ARIF @ASHFAQ v. THE REGISTRAR, SUPREME COURT OF INDIA & ORS. (Writ Petition (Crl.) No. 77 of 2014 etc.) SEPTEMBER 02, 2014 [R.M. LODHA, CJI, JAGDISH SINGH KHEHAR, J. CHELAMESWAR, A.K. SIKRI AND R.F. NARIMAN, JJ.] A B Supreme Court Rules, 1966 - Or. XL r.3 - Constitutionality of - Challenged -:- Seeking open court oral C hearing of Review Petitions in death sentence cases - Held: Per majority: Limited oral hearing at review stage in death sentence cases is mandated by Art. 21 of the Constitutio_n, hence permissible - Per Minority: Not permissible - There is no obligation u!Art. 21 to grant oral hearing - The rule of D audi alteram partem does not take within its sweep right to make oral submission - Constitution of India, 1950- Arts. 21 and 137. Disposing of the writ petitions, the Court E HELD: MAJORITY OPINION: Per R.F. Nariman, J. (for himself and Lodha. Khehar and Sikri. JJ.l : F 1 . .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, G became applicable to criminal jurisprudence. There are no statutory guidelines to regulate punishment. Therefore, in practice, there is much variance in the matter of sentencing. The Judges exercise wide discretion 1009 H • . 1010 SUPREME COURT REPORTS [2014) 11 S.C.R. A 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. [Para 30] [1031-C·G] I 8

2.1. 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. When it comes to death penalty cases, the power of the spoken word has C to be given yet another opportunity even if the ultimate success rate is minimal. [Paras 40, 35] [1034-B; 1036-C] · 2.2 .. When on the same set'of .facts, one judicial mind can come to the conclusion that the circumstances do · D not warrant the death penalty, whereas another may feel it to be a fit case fully justifying the death penalty, 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 E "reasonable procedure". "Reasonable procedure" would encompass oral hearing of review. petitions arising out of death penalties. [Paras 30, 31) [1032-D-F]

2.3. While awarding a death sentence, in most of the cases, this Court would generally be affirming the F 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 G chance of deviating from 'such a decision while exercising the review jurisdiction, would justify oral hearing in a review petition. [Para 33] [1033-C-E]

2.4. Review Petitions are inartistically drafted and oral H • . MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1011 COURT OF INDIA submissions by a skilled advocate can bring home a A point which may otherwise not be succinctly stated, given the enlarged scope of review in criminal matters. 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 B a factor to which great weight need be accorded as the fundamental right to life is the only paramount factor in these cases. The justice of the situation in this class of cases demands a limited oral hearing. An outer limit of 30 minutes in all such cases may be provided. [Para 37, c 41, 40] [1034-E-G; 1035-H; 1036-E, A]

2.5. 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 D 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 E would not be proper to reopen such matters. [Para 46] [1038-D, E] P.N. Eswara Iyer v. Registrar, Supreme Court (1980) 4 sec 680 - relied on. Sher Singh v. State of Punjab 1983 ( 2 ) SCR 582: (1983) 2 SCC 345; Shatrughan Chauhan v. Union of India 2014 (1) SCR 609 : (2014) 3 SCC 1; V. Sriharan v. Union of India (2014) 4 SCC 242; Aloke Nath Dutta v. State of WB. 2006 (10) Suppl. SCR 662 : (2007) 12 sec 230; Swamy G Shraddananda (2) · v. State of Karnataka 2008 (11 ) SCR.93:(2008) 13 SCC 767; Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra 2009 (9) SCR 90: (2009) 6 sec 498; Sajjan Singh vs. State of Rajasthan (1965) 1 SCR 933; Devender Pal Singh v. State, F H 1012 SUPREME COURT REPORTS [2014] 11 S.C.R. • .A NCT of Delhi & Another 2002 (5) Suppl.SCR 332 : (2003) 2 ,, SCC 501; Ram Deo Chauhan v. Bani Kanta Das (2010) 14 sec 209 - cited.

#3. The plea that all death sentence cases be heard . by at least three Hon'ble Judges have been remedied by_ ~., B Supreme Court Rules, 2013, Order VI Rule 3. All cases in,. 1, 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 C 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.[Paras 38, 39] [1034-G, H; 1035- D-E] D

#4. 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. [Para 43] [1037- C] Trlveniben v. State of Gujarat 1989 (1) SCR 509 :(1989) · E 1 sec 678 - relied on.

#5. Spending 13% years in jail does not mean that the petitioner has undergone a sentence for life. [Para 43] [1037-D] ., Swamy Shraddananda (2) v. State. of Kamataka 2008 (11) SCR 93: (2008) .13 sec 767 - relied on. F MINORITY OPINION: Per Chelameswar. J.: (Dissentingy

#1. Extinguishmeht of life of a subject by the State as G a punishment for an offence is still sanctioned by law. Article 21 of the Constitution itself recognizes the authority of the State to deprive a person of his life., Though such authority is cifcumscribed by many constitutional limitations. Article 21 mandates that a H person cannot be deprived of his life, except according :·· ·' • MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1013 COURT OF INDIA to procedure established by law. [Para 2J [1038-H; 1039- A A, BJ

#2. 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 B (both substantive and procedural) which is consistent with the constitutional guarantee under Articles 14 and 21 etc. But such an obligation does not extend so far as to compulsorily giving an oral hearing in every case where review is sought by a condemned convict.[Paras C 21, 22J [1050-A-CJ

#3. The rule of audi alteram partem does· not take within its sweep the right to make oral submissions in every case. It all depends upon the demands of justice o· in a given case. [Para 25] [1051-CJ

#4. In the absence of any obligation flowing from Article 21 to grant an oral hearing, there is no need to grant an oral hearing. Review petitions are normally heard by the same Bench which heard the appeal. Therefore, E the possibility of different judicial mirids reaching different conclusions on the same set of facts does not arise. The possibility of the "remote chance of deviation" from the . conclusion already reached is - though emotionally very appealing in the context of the extinguishment of life - equally applicable to all cases of review.[Para 26] [1051- F E, F; 1052-A, BJ . .

#5. 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 G while preserving the discretion in the Bench considering a review application to grant an oral hearing in an appropriate. case.[Para 27J [1052-C, DJ

#6. The question as to whether the "developments" subsequent to Eswara /yer's case, either in law or in H • 1014 SUPREME COURT REPORTS [2014] 11 S.C.R. A practice of this Gourt, demand. a reconsideration of the rule, should be left to the Court's jurisdiction under Article 145. [Para 28] [1052-F, G] ' P.N. Eswara Iyer & Others v. Registrar, Supreme Court . B of India, (1980) 4 SCC 680 -relied on. . . . .