Death Penalty Review Petitions must be heard in open court, “Power of spoken word” given another opportunity – Supreme Court

The Supreme Court today ruled that review petitions relating to death penalty would be heard in open court by a three judge Bench. Till now, all review petitions including those relating to death penalty were disposed of by circulation without any oral arguments..A Constitution Bench comprising Chief Justice RM Lodha and Justices Rohinton Nariman, AK Sikri, JS Khehar and Jasti Chelameswar delivered the judgment. Justice Chelameswar delivered a dissenting judgment. .Senior Advocates KK Venugopal and Jaspal Singh and Advocates Gopal Sankaranarayanan, Renjith B Marar, Yug Mohit Choudhary and Tripurari Ray appeared for various Petitioners. Solicitor General Ranjit Kumar represented the Centre while Senior Advocate Siddharth Luthra served as the amicus curiae..In the majority judgment, drafted by newly elevated Justice Rohinton Nariman, the Court has held that oral hearing in review petitions involving death penalty forms part of the “reasonable procedure” mandated under Article 21..“ [When] on the same set of facts, one judicial mind can come to the conclusion that the circumstances do not warrant the death penalty, whereas another may feel it to be a fit case fully justifying the death penalty, we feel that 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 “reasonable procedure”…[When] it comes to death penalty cases, we feel that the power of the spoken word has to be given yet another opportunity even if the ultimate success rate is minimal.”.The Court has, however, not declared Order XL Rule 3 of the Supreme Court Rules – which provides for oral hearing of review petitions as unconstitutional. It has also not departed from the earlier Constitution Bench decision in this regard – PN Eswara Iyer v. The Registrar, Supreme Court of India. Instead, it has chosen to carve out death penalty cases as a distinct category while holding that “this view of ours is not contrary to P.N. Eswara Iyer (supra), and in fact, there are ample observations in the said Constitution Bench judgment itself, giving enough space for justifying oral hearing in cases like the present.”.“The validity of no oral hearing rule in review petitions, generally, has been upheld in P.N. Eswara Iyer (supra) which is a binding precedent. Review petitions arising out of death sentence cases is carved out as a separate category as oral hearing in such review petitions is found to be mandated by Article 21. We are of the opinion that the importance of oral hearing which is recognised by the Constitution Bench in P.N. Eswara Iyer (supra) itself, would apply in such cases.”.The 62-page judgment would apply to all pending review petitions and also those review petitions, which have been dismissed in chambers but have not been executed provided the curative petition is not dismissed. However, such pending review petitions have to be re-agitated within a period of one month..Today’s judgment, will have an impact on a number of cases including that of Yakub Memon, a death row convict in the 1993 Mumbai serial blasts case, and Parliament terror attack death row convict Mohd Asfaq..Read the full judgment below.