Wednesday, 10 September 2014

Death penalty: Hearing at review stage, permitted!

"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" - Krishna Iyer., J

Picture Source: Dominica Weekly

TheHon'ble Supreme Court of India upheld the right of a death penalty convict to a hearing at the review stage before the Supreme Court of India. The constitutionality of Order XXXVIII of the 1950 Supreme Court Rules read with Order XI Rule 1 was discussed. These rules state that all review cases should be heard by a bench of at least three learned Judges. This was reduced by the Supreme Court Rules 1966 to two Judges by Order VII Rule 1. Further, in 1978 a new sub-rule (3) was added to Order XL of the Supreme Court Rules providing that all review applications could now be disposed of and heard by circulation - that is without oral argument.

The petitioners urged that the impugned order of the Supreme Court Rules, 1996 be declared unconstitutional inasmuch as persons on death row are denied an oral hearing. It was further contended that the hearing of cases in which death sentence has been awarded should be by a bench of atleast 5 Supreme Court judges.

The respondents echoed the judgment of the Constitutional bench in Eshwara Iyer and stated that judges apply their mind while disposing review petitions in their chambers. It was further contended that the judiciary is overburdened and other jurisdictions also don't provide for hearings at the review stage.

The decision of the Court rests on the principles of Article 21 of the Constitution of India. It aims at upholding the right to life which is the spirit behind this provision of the Constitution. The Court by providing a dynamic interpretation of its decision in Eshwar Iyer held that death penalty convicts form a separate class of convicts. The Court went on to state that that death penalty is awarded in rarest of rare cases and two differently trained judicial minds may apply a different set of rules while determining the case which can seriously impact the convicts right to life under Article 21 of the Constitution of India. Therefore in cases of death penalty, limited oral hearing must be made a precondition at the review stage.

The Court further clarified that the right to limited hearing will be applicable in pending review petitions and future petitions. It will also apply where a review 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 would not be proper to reopen such matters.

On the point of the number of judges hearing the petition where death penalty is awarded the Court held that in all cases in 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 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. At present, the Court is not persuaded to have a minimum of 5 learned Judges to hear all death sentence cases.

However in the dissenting judgment Chelameswar., J stated that it has never been held, either in this country or elsewhere, that the rule of audi alteram partem takes within its sweep the right to make oral submissions in every case. It all depends upon the demands of justice in a given case. Eswara Iyer’s case clearly held that review applications in this Court form a class where an oral hearing could be eliminated without violating any constitutional provision. Therefore no separate oral hearing needs to be provided at the state of review.

This is an excellent example of how the judiciary has carved a niche exception to an already established rule. The majority very clearly extends this privilege to death penalty convicts only, whose right to life is protected under the Constitution of India. It is an established norm that this punishment is provided in rarest of rare cases and a rock solid reason must exist for this punishment to stand ground. Hence, in order to remove all possibilities of error this decision of the Supreme Court reinforces the convicts right to life and hearing.


Surinder Koli, the Nathiri killer, will be the first to enjoy the benefits of this judgment as he has filed for a review and his will be the first petition to heard in open court.

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