Oral hearings are required in review petitions concerning death sentences, emphasizing fair procedures under Article 21 due to the irreversible nature of capital punishment.

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. Art.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. Art.21 mandates that a person cannot be deprived of his life except according to procedure established by law. Whether Art.21 is the sole repository of the constitutional guarantee against the deprivation of life and whether it is sufficient for the State to merely prescribea 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. S.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 . Death is one of the punishments so prescribed. Provisions of the prescribe death penalty for various offences as one of the alternative punishments for these offences2. For example, S.302 prescribes death or imprisonment for life as alternative punishments for a person who commits murder. Similarly, S.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 authorised to award punishment of death. The other subordinate Courts such as Chief Judicial Magistrates and Magistrates are expressly debarred to award death penalty. S.283 and S.294 of the CrPC prescribe the punishment which the various Courts in the hierarchy of the criminal justice administration system can pass.

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