right to oral hearing in review for cases involving death penalty:
The impact of Mohd. Arif
2. In Mohd. Arif, this Court took note of the irreversible nature of the death penalty and of the possibility of two judicial minds reaching differing conclusions on the question of a case being appropriate for the award of the death penalty. The judgment of the majority allowed the right to oral hearing in review for cases involving death penalty:
29. [...] death sentence cases are a distinct category of cases altogether. Quite apart from Article 134 of the Constitution granting an automatic right of appeal to the Supreme Court in all death sentence cases, and apart from death sentence being granted only in the rarest of rare cases, two factors have impressed us. The first is the irreversibility of a death penalty. And the second is the fact that different judicially trained minds can arrive at conclusions which, on the same facts, can be diametrically opposed to each other. Adverting first to the second factor mentioned above, it is well known that the basic principle behind returning the verdict of death sentence is that it has to be awarded in the rarest of rare cases. There may be aggravating as well as mitigating circumstances which are to be examined by the Court. At the same time, it is not possible to lay down the principles to determine as to which case would fall in the category of rarest of rare cases, justifying the death sentence. It is not even easy to mention precisely the parameters or aggravating/ mitigating circumstances which should be kept in mind while arriving at such a question. Though attempts are made by Judges in various cases to state such circumstances, they remain illustrative only.
30. [...] A sentence is a compound of many factors, including the nature of the offence as well as the circumstances extenuating or aggravating the offence. A large number of aggravating circumstances and mitigating circumstances have been pointed out in Bachan Singh v. State of Punjab, SCC at pp. 749-50, paras 202 & 206, that a Judge should take into account when awarding the death sentence. Again, as pointed out above, apart from the fact that these lists are only illustrative, as clarified in Bachan Singh itself, different judicially trained minds can apply different aggravating and mitigating circumstances to ultimately arrive at a conclusion, on considering all relevant factors that the death penalty may or may not be awarded in any given case. Experience based on judicial decisions touching upon this aspect amply demonstrate such a divergent approach being taken. Though, it is not necessary to dwell upon this aspect elaborately, at the same time, it needs to be emphasised that 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". (emphasis supplied)
3. A recent study by Project 39A examined all the judgments involving a sentence of death delivered by the Supreme Court between 2007 and 2021 as part of which it analysed the exercise of the review jurisdiction in capital cases.[1] It noted that, during the period covered by the study, before the decision in Mohd. Arif, 14 review petitions were dismissed by circulation and the capital punishment was confirmed in all of them. Out of these, 13 were reopened in view of the judgment which resulted in only 4 re-confirmations of the death penalty. On the other hand, 7 judgments resulted in commutation of death sentences, 1 in acquittal and 1 case being abated due to the death of the prisoner. In view of the above data, the impact of the oral hearing of review petitions, due to the judgment in Mohd. Arif leading to a change in the outcome of a death penalty confirmation is evident.
[1] Exercise of Review Jurisdiction in Capital Cases in DEATH PENALTY AND THE INDIAN SUPREME COURT (2007-2021), Project 39A, National Law University Delhi (2022).
4. The Court in Mohd. Arif, however, was not persuaded by the argument of involving two additional judges beyond the judges who had heard the original appeal during the hearing of the review petition. It also held that a review must be ordinarily heard by the same bench which originally heard the criminal appeal. It had noted that:
39. Henceforth, 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, we are not persuaded to have a minimum of 5 learned Judges hear all death sentence cases. Further, [...] a review is ordinarily to be heard only by the same bench which originally heard the criminal appeal. This is obviously for the reason that in order that a review succeeds, errors apparent on the record have to be found. It is axiomatic that the same learned Judges alleged to have committed the error be called upon now to rectify such error. We, therefore, turn down [the...] plea that two additional Judges be added at the review stage in death sentence cases. (emphasis supplied)
5. The data analysed by Project 39A indicates that it is not merely the oral hearing of review petitions that has changed the outcomes. There may also be a correlation between the ultimate outcome changing and different judges being involved as part of the review process instead of the same judges who had originally decided the appeal. Post Mohd. Arif, this happens when the judges who were members of the original bench have demitted office by the time the open court review comes for hearing. The data involves the 13 review cases re-opened and re-decided post Mohd. Arif after an oral hearing as well as 10 fresh review cases which were decided post Mohd. Arif. Out of 13 post Mohd. Arif cases which were re-opened, we have already noted that only 4 led to re-confirmation of the award of the death penalty, while in 7 cases the sentence was commuted to life imprisonment, 1 resulted in an acquittal and 1 stood abated. Out of the 10 fresh review cases, in 7 the death sentence was confirmed while in 3 the sentence was commuted.
6. In the cases where the sentence of death was commuted to life imprisonment, i.e. 7 cases from the first lot of 13 re-opened review cases and 3 cases from the second lot of 10 fresh review cases, all of the benches in review were of a different composition from the bench that decided the appeal. The 1 case which resulted in acquittal also had a different bench in review from the one in appeal. On the other hand, in the 11 cases which re-confirmed the death sentence, 7 benches had a composition of one or all the judges being the same as the bench that decided the appeal. The report notes that:
The stage of review is rendered almost superfluous for the purpose envisaged by the majority, i.e., a further reconsideration of a death sentence, when the same bench (as in criminal appeal) is called upon to decide the review petition. This is in fact demonstrated by the data. As predicted by Justice Chelameswar, when heard by the same bench as the appeal, review petitions resulted in the death sentence being maintained. 4 out of 11 confirmation judgments rendered at the stage of review had the same bench. While the remaining 7 confirmation judgments in review were rendered by benches of different composition, it is relevant to note that in 1 of these judgments one judge was common to both the benches that decided the review and the appeal, and in yet another, two judges were common to both benches. On the other hand, all of the 10 judgments that resulted in commutation at the review stage, were rendered by benches having a different composition from the bench that decided the appeal. Therefore, the data suggests that a review petition filed within 30 days of the judgment rendered in appeal, decided by the same bench, will not demonstrate considerable differences in approaches or outcome, unlike those decided by a different bench. (emphasis supplied)
7. While the above data is not conclusive and the correlation may not necessarily equate to causation, we find it appropriate to mention as the present case is also one of those being re-opened and re-heard as a result of the decision in Mohd. Arif. We clarify by way of abundant caution that being both a smaller bench and having not been called upon to consider the impact of different judges sitting in the review of an appeal confirming the death sentence, we are not deciding on the merits of the proposition.
B. Background
8. In view of the judgment in Mohd. Arif, the order dated 20 March 2013 in the present case dismissing the review petition through circulation was recalled and this review petition was heard in open court.