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Death-row review in open court

New Delhi, Sept. 2: A Supreme Court constitution bench today held that death-row convicts’ review petitions should be heard not in judges’ chambers but in open court, where the appellants and their lawyers can have their say.

The 4-1 verdict by a five-judge bench also laid down that three-judge apex court benches, and not two-judge ones, would henceforth hear appeals against high courts’ affirmation of death sentences.

By implication, it suggests that death-row review petitions — filed if and when the original appeal is dismissed — would also be heard by three-judge benches.

However, the court limited the open-court hearings of review petitions to a maximum 30 minutes.

Currently, a two-judge bench hears the original appeal against the high court judgment. When a review petition is filed, it’s heard “in chambers” by the same two judges, who discuss the matter between themselves. Neither the appellant nor his counsel has access to the hearing.

One longstanding criticism of this decades-old practice has been that it allows judges to deal with review petitions in a casual manner in the absence of a transparent hearing.

Five death-row convicts had challenged the practice as a violation of the Constitution’s Article 21 (right to life and personal liberty). Some of them had also demanded that three-judge benches hear all appeals against death sentences.

Chief Justice R.M. Lodha headed the bench that passed the judgment. The other members were Justices J.S. Khehar, J. Chelameshwar, A.K. Sikri and R.F. Nariman.

Justice Chelameshwar’s dissenting judgment said there was no need for open-court hearings of death-row review petitions as the matter would already have been dealt with meticulously by both the high court and the Supreme Court.

Justice Nariman, who wrote the majority judgment, explained its rationale in terms of the irreversibility of an execution and the possibility of trained judicial minds differing on whether a convict deserved the death penalty in the absence of clear-cut criteria.

“Death penalty is irreversible in nature. Once a death sentence is executed… 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,” Justice Nariman wrote.

“This being so, we feel that… a limited oral hearing even at the review stage is mandated by Art. 21 in all death sentence cases.”

The court agreed with senior counsel K.K. Venugopal, who appeared for one of the death-row convicts, that death-sentence cases fell in a distinct category as “different judicially trained minds can arrive at conclusions which, on the same facts, can be diametrically opposed to each other”.

It also noted that it was not possible to lay down clear principles to determine whether a case fell in the rarest of the rare category, justifying the death sentence.

“It is not even easy to mention precisely the parameters or aggravating/mitigating circumstances…. Though attempts are made by judges in various cases to state such circumstances, they remain illustrative only,” the court said.

“We feel that this oral hearing, in death sentence cases, becomes too precious to be parted with.”

The court also decided 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”.

It, however, clarified that today’s judgment would apply only to pending review petitions, future review petitions, and review petitions that have been dismissed without the convict having yet been executed.

In the last of these circumstances, the petitioners can apply for reopening of their review petition within a month from today.

However, in those cases where the court has dismissed the curative petition — the last resort after a review petition has been dismissed — it would not be proper to reopen the matter, the court clarified.

It, therefore, dismissed the plea of Mohd Arif alias Ashfaq, a Lashkar-e-Toiba terrorist sentenced to hang for the 2000 Red Fort attack. Arif’s curative petition has already been dismissed.

Curative petitions too are heard inside chambers. Today’s order does not concern curative petitions.

The bench also rejected Venugopal’s plea to have all death-row cases heard by a constitution bench of at least five judges.