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SUPREME COURT OF INDIA
R.M. Lodha, CJI., Jagdish Singh Khehar, A.K. Sikri, Rohinton Fali Nariman, JJ.
Mohd. Arif @ Ashfaq – Petitioner
Versus
The Registrar, Supreme Court of India & Others – Respondents
WRIT PETITION (CRIMINAL) NO.77 OF 2014
WITH
C. Muniappan & Others – Petitioners
Versus
The Registrar, Supreme Court of India – Respondent
WRIT PETITION (CRIMINAL) NO.137 OF 2010
WITH
B.A. Umesh – Petitioner
Versus
Registrar, Supreme Court of India – Respondent
WRIT PETITION (CRIMINAL) NO.52 OF 2011
Sundar @ Sundarrajan – Petitioner
Versus
State by Inspector of Police & Others – Respondents
WRIT PETITION (CRIMINAL) NO.39 OF 2013
WITH
Yakub Abdul Razak Memon – Petitioner
Versus
Registrar, Supreme Court of India & Others – Respondents
WRIT PETITION (CRIMINAL) NO.108 OF 2014
Sonu Sardar – Petitioner
Versus
Union of India & Others – Respondents
WRIT PETITION (CRIMINAL) NO.117 OF 2014
Decided On : 02-09-2014
(a) Indian Penal Code, 1860 – Section 53 – Death punishment – Prescribed as one of the alternative punishments for offences u/s 121, 132, 194, 302, 305, 307(3), 364A and 376A, 376E and 396 – Similarly, Death penalty can also be awarded for some other offences under some special laws like Terrorist and Disruptive Activities (Prevention) Act, 1987, Narcotic Drugs and Psychotropic Substances Act, 1985, the Unlawful Activities Prevention Act, 1967 – Section 28 confers jurisdiction on Sessions court to award death penalty but it is subject to limitations under section 354 (giving special reasons), 367 CrPC (confirmation by High Court) – Confirmation by High Court is further subject to appeal to Supreme Court under Article 134 and review under Article 137 of the Constitution – Rules of procedure for exercising jurisdiction under Articles 134, 136 and 137 – Made under Article 145. (Para 3, 4, 5, 8, 11)
AIR 1950 SC 27; AIR 1977 SC 2046 – Relied upon
(b) Supreme Court Rules, 1966 – Order XL, Rule 3 – Application for review to be disposed of by circulation – Oral hearing may be granted – Audi alteram partem rule does not apply – Death penalty should be awarded only in accordance with the law (both substantive and procedural) consistent with constitutional guarantee under Articles 14 and 21 – But it does not compulsorily require oral hearing – Article 21 does not mandate oral hearing. (Para 16, 18, 19, 21, 22, 25)
(1980) 4 SCC 680 – Relied upon
Per R.F. Nariman, J. (Majority view)
(c) Constitution of India – Article 21 – “Procedure established by law” – Cannot be arbitrary but should be just, fair and reasonable – Articles 14 and 19 have now to be read into Article 21 – Therefore not only the procedure but also the law, establishing the procedure, itself has to be reasonable – Substantive due process is now to be applied to the fundamental right to life and liberty. (Para 23, 27, 28)
(1981) 1 SCR 206; 1950 SCR 88; (1978) 2 SCR 621; (1964) 1 SCR 332; (1970) 1 SCC 248; (1983) 2 SCC 277 – Relied upon
(d) Constitution of India – Article 134 and Article 21 – Death sentence – Automatic right of appeal to Supreme Court – Such cases are distinct category of cases – Award only in the rarest of rare cases – Because such penalty is irreversible in nature and, – Judicial minds can arrive at different conclusions on same facts – Therefore “reasonable procedure” in Article 21 would encompass oral hearing of review petitions arising out of death penalties – Oral hearing, in death sentence cases, becomes too precious to be parted with. (Para 29, 31, 34)
(1980) 2 SCC 684; (1980) 4 SCC 680 – Relied upon
(1983) 2 SCC 345; (2014) 3 SCC 1; (2014) 4 SCC 242; (2007) 12 SCC 230; (2008) 13 SCC 767; (2009) 6 SCC 498; (1965) 1 SCR 933; (2003) 2 SCC 501; (2010) 14 SCC 209 – Referred
(e) Supreme Court Rules, 1966 – Order XL, Rule 3 – Review cases – Poorly drafted – Require oral submissions by a skilled advocate – Limited oral hearing in death sentence cases only – Needed – Arguments of advocate limited to 30 minutes. (Para 37, 40)
(f) Supreme Court Rules, 2013 – Order VI Rule 3 – Death sentence cases to be heard only by a bench of three Judges – Plea for hearing by Bench of five Judges declined. (Para 39,
(g) Death sentence – Conversion into life sentence due to delay – Time taken in court proceedings cannot be a ground for converting a death sentence into one for life. (Para 43)
(1989) 1 SCC 678; (2008) 13 SCC 767 – Relied upon
Facts of the case:
In each petition of this group of petitions before the Constitution Bench 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.
Finding of the Court: (Majority view)
Review cases on death penalty should be given limited oral hearing.
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 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.
3. Section 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. (2) Simple;
Fifthly - Forfeiture of property;
Sixthly-Fine.] of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) prescribes various punishments to which offenders are liable under the provisions of the IPC. Death is one of the punishments so prescribed. Provisions of the IPC prescribe death penalty for various offences as one of the alternative punishments for these offences[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.]. 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 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[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] and 29[Sentences which Magistrates may pass
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