Holding

A limited oral hearing at the review stage is required in death‑sentence cases as part of the reasonable procedure mandated by Article 21.

Summary

The petitioners, convicted of murder and sentenced to death, challenged the constitutionality of Order XL Rule 3 of the Supreme Court Rules, 1966, which mandates that review petitions be disposed of by circulation without oral argument. The Supreme Court examined whether Article 21 of the Constitution, which guarantees the right to life and a fair procedure, requires a limited oral hearing in review petitions involving death sentences. By a majority, the Court held that a limited oral hearing (capped at 30 minutes) is a component of a "reasonable procedure" under Article 21 for death‑penalty cases, and directed that pending and future review petitions in such cases be heard orally. The minority dissent argued that Article 21 does not impose an obligation for oral hearings. The Court also clarified that the rule applies to pending review petitions and to those dismissed but not yet executed, allowing a one‑month window to seek reopening, while curative petitions once dismissed cannot be reopened. All writ petitions were disposed of accordingly.

Issues considered

The constitutionality of Order XL Rule 3 of the Supreme Court Rules, 1966 which provides for disposal of review petitions by circulation without oral hearing
Whether Article 21 of the Constitution mandates a limited oral hearing in review petitions where a death sentence has been awarded
Whether the rule of audi alteram partem extends to a right to oral submissions in all review proceedings

Legislation cited

Code of Criminal Procedure, 1973s. Sec. 354(3), s. Sec. 366(1), s. Sec. 367, s. Sec. 368, s. Sec. 369
Constitution of Indias. Art. 134, s. Art. 137, s. Art. 14, s. Art. 145, s. Art. 20(1), s. Art. 21
Indian Penal Code, 1860s. Sec. 53

Subjects

death penaltyreview petitionoral hearingArticle 21reasonable procedureSupreme Court Rulesconstitutional lawright to lifecriminal procedure

Judgment

• [2014] 11 $.C.R. 1009

MOHD. ARIF @ASHFAQ A
v.
THE REGISTRAR, SUPREME COURT OF INDIA & ORS.
(Writ Petition (Crl.) No. 77 of 2014 etc.)
SEPTEMBER 02, 2014
B
[R.M. LODHA, CJI, JAGDISH SINGH KHEHAR, J.
CHELAMESWAR, A.K. SIKRI AND R.F. NARIMAN, JJ.]

Supreme Court Rules, 1966 - Or. XL r.3 -
Constitutionality of - Challenged -:- Seeking open court oral C
hearing of Review Petitions in death sentence cases - Held:
Per majority: Limited oral hearing at review stage in death
sentence cases is mandated by Art. 21 of the Constitutio_n,
hence permissible - Per Minority: Not permissible - There
is no obligation u!Art. 21 to grant oral hearing - The rule of D
audi alteram partem does not take within its sweep right to
make oral submission - Constitution of India, 1950- Arts. 21
and 137.

Disposing of the writ petitions, the Court
E
HELD:

MAJORITY OPINION:

Per R.F. Nariman, J. (for himself and Lodha. Khehar and
F
Sikri. JJ.l :

1. .Crime and punishment are two sides of the same
coin. Punishment must fit the crime. The notion of 'Just
deserts' or a sentence proportionate to the offender's
culpability was the principle which, by passage of time, G
became applicable to criminal jurisprudence. There are
no statutory guidelines to regulate punishment.
Therefore, in practice, there is much variance in the matter
of sentencing. The Judges exercise wide discretion
1009 H
. 1010 SUPREME COURT REPORTS [2014) 11 S.C.R.
•
I
A within the statutory limits and the scope for deciding the
.amount of punishment is left to the judiciary to reach
decision after hearing the parties. [Para 30] [1031-C·G]
2.1. The fundamental right to life and the irreversibility
of a death sentence mandate that oral hearing be given
8
at the review stage in death sentence cases, as a just, fair
and reasonable procedure under Article 21 mandates
such hearing, and cannot give way to the severe stress
of the workload of the Supreme Court. When it comes to
death penalty cases, the power of the spoken word has
C to be given yet another opportunity even if the ultimate
success rate is minimal. [Paras 40, 35] [1034-B; 1036-C]

· 2.2 ..When on the same set'of .facts, one judicial mind
can come to the conclusion that the circumstances do
· D not warrant the death penalty, whereas another may feel
it to be a fit case fully justifying the death penalty, 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
E "reasonable procedure". "Reasonable procedure" would
encompass oral hearing of review. petitions arising out of
death penalties. [Paras 30, 31) [1032-D-F]

2.3. While awarding a death sentence, in most of the
cases, this Court would generally be affirming the
F decision on this aspect already arrived at by two Courts
below namely the trial court as well as the High Court.
After such an affirmation, the 'scope of review of such a
judgment may be very narrow: At the same time, when it
is a question of life and death ·of a person, even a remote
G chance of deviating from 'such a decision while
exercising the review jurisdiction, would justify oral
hearing in a review petition. [Para 33] [1033-C-E]
2.4. Review Petitions are inartistically drafted and oral
H
• . MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1011
COURT OF INDIA
submissions by a skilled advocate can bring home a A
point which may otherwise not be succinctly stated,
given the enlarged scope of review in criminal matters.
The fact that the courts overcrowded docket would be
able to manage such limited oral hearings in death
sentence cases only, being roughly 60 per annum, is not B
a factor to which great weight need be accorded as the
fundamental right to life is the only paramount factor in
these cases. The justice of the situation in this class of
cases demands a limited oral hearing. An outer limit of
30 minutes in all such cases may be provided. [Para 37, c
41, 40] [1034-E-G; 1035-H; 1036-E, A]
2.5. The right of a limited oral hearing in review
petitions where death sentence is given, shall be
applicable only in pending review petitions and such
petitions filed in future. It will also apply where a review D
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 E
would not be proper to reopen such matters. [Para 46]
[1038-D, E]
P.N. Eswara Iyer v. Registrar, Supreme Court (1980) 4
sec 680 - relied on.
F
Sher Singh v. State of Punjab 1983 ( 2 ) SCR 582:
(1983) 2 SCC 345; Shatrughan Chauhan v. Union of India
2014 (1) SCR 609 : (2014) 3 SCC 1; V. Sriharan v. Union
of India (2014) 4 SCC 242; Aloke Nath Dutta v. State of WB.
2006 (10) Suppl. SCR 662 : (2007) 12 sec 230; Swamy G
Shraddananda (2) · v. State of Karnataka 2008 (11 )
SCR.93:(2008) 13 SCC 767; Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra 2009 (9)
SCR 90: (2009) 6 sec 498; Sajjan Singh vs. State of
Rajasthan (1965) 1 SCR 933; Devender Pal Singh v. State,
H
1012 SUPREME COURT REPORTS [2014] 11 S.C.R. •
.A NCT of Delhi & Another 2002 (5) Suppl.SCR 332 : (2003) 2 ,,
SCC 501; Ram Deo Chauhan v. Bani Kanta Das (2010) 14
sec 209 - cited.
3. The plea that all death sentence cases be heard .
by at least three Hon'ble Judges have been remedied by_ ~.,
B Supreme Court Rules, 2013, Order VI Rule 3. All cases in,. 1 ,
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
C 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.[Paras 38, 39] [1034-G, H; 1035-
D-E]
4. Time taken in court proceedings cannot be taken,
D into account to say that there ·is a delay which would
convert a death sentence into one for life. [Para 43] [1037-
C]
Trlveniben v. State of Gujarat 1989 (1) SCR 509 :(1989) ·
E 1 sec 678 - relied on.
5. Spending 13% years in jail does not mean that the
petitioner has undergone a sentence for life. [Para 43] .,
[1037-D]
Swamy Shraddananda (2) v. State. of Kamataka 2008
F (11) SCR 93: (2008) .13 sec 767 - relied on.
MINORITY OPINION:
Per Chelameswar. J.: (Dissentingy
1. Extinguishmeht of life of a subject by the State as
G a punishment for an offence is still sanctioned by law.
Article 21 of the Constitution itself recognizes the
authority of the State to deprive a person of his life.,
Though such authority is cifcumscribed by many
constitutional limitations. Article 21 mandates that a
H person cannot be deprived of his life, except according :·· ·'
• MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1013
COURT OF INDIA
to procedure established by law. [Para 2J [1038-H; 1039- A
A, BJ
2. Death penalty results in deprivation of the most
fundamental liberty guaranteed by the Constitution
resulting in an irreversible situation. Therefore, such
deprivation should be only in accordance with the .law B
(both substantive and procedural) which is consistent
with the constitutional guarantee under Articles 14 and
21 etc. But such an obligation does not extend so far as
to compulsorily giving an oral hearing in every case
where review is sought by a condemned convict.[Paras C
21, 22J [1050-A-CJ
3. The rule of audi alteram partem does· not take
within its sweep the right to make oral submissions in
every case. It all depends upon the demands of justice
in a given case. [Para 25] [1051-CJ o·
4. In the absence of any obligation flowing from
Article 21 to grant an oral hearing, there is no need to
grant an oral hearing. Review petitions are normally heard
by the same Bench which heard the appeal. Therefore, E
the possibility of different judicial mirids reaching different
conclusions on the same set of facts does not arise. The
possibility of the "remote chance of deviation" from the
. conclusion already reached is - though emotionally very
appealing in the context of the extinguishment of life -
equally applicable to all cases of review.[Para 26] [1051- F
E, F; 1052-A, BJ . .
5. This Court, in exercise of its authority under Article
145 as a part of the Court management strategy, thought
it fit to eliminate the oral hearings at the review stage G
while preserving the discretion in the Bench considering
a review application to grant an oral hearing in an
appropriate. case.[Para 27J [1052-C, DJ
6. The question as to whether the "developments"
subsequent to Eswara /yer's case, either in law or in H
1014 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A practice of this Gourt, demand. a reconsideration of the
rule, should be left to the Court's jurisdiction under Article
145. [Para 28] [1052-F, G]
' .
P.N. Eswara Iyer & Others v. Registrar, Supreme Court
B of India, (1980) 4 SCC 680 -relied on.
.. .
A.K. Gopalan v. State of Madras 1950 SCR 88 : AIR
.

1950 SC 27; Subbaiah Ambalam,v. State of Tamil Nadu AIR
1977 SC 2046; Surjit Singh
. & Others
. v. The State of Punjab-
referred to..
c
Case Law Reference:

In the judgment of Nariman. J.:
· 1983 (2) SCR 582 cited Para 2
, I
D
. 2014 (1) SCR 609 cited Para 2
(2014) 4 sec 242 1 cited Para 2
2006 (10) Suppl.
. ..
SCR 662 ·.cited Para 2.
E
.
2008 (11 ) SCR 93
'
cited Para 2
2009 (9) SCR 90 cited Para 2
(1965) 1 SCR.,933 I' cited Para 10

F (1980) 4 sec 680 I relied on . Para 10
'
2002 '(5) Suppl. SCR 332 · cited Para ·10
(2010) 14 SCC.209 1 cited Para 10
J
1989 (1) SCR 509 I relie~ ' on Para 43
G
2008 (11) SCR 93 j relied on Para 43
. , I .. - •·
In the judgment of Chelameswar, J.: . -
j '

H
1950 SCR 88 ; .._1 ., Referred to
' '
Para 2
• MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1015
COURT OF INDIA
AIR 1977 SC 2046 Referred to Para 9 A
(1980) 4 sec 680 Referred to Para 17
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.}
No. 77 of 2014.
B
WITH

Writ Petition (Crl) No. 137 of 2011, 52 of 2011, 39 of 2013,
108 and 117 of 2014.

K.K. Venugopal, Jaspal Singh, Farook M. Razack, C
Tripurari Ray, B.S. Billowria, Anil Kaushik, Rajinder Singh, (for
Vishnu Sharma}, Gopal Sankaranarayanan, Suhasini,
Vikramaditya, Vikas Mehta, Yug Mohit Choudhary, Purushottam
Sharma Tripathi, Mukesh Kumar Singh, Ravi Chandra Prakash,
Filza Moonis, Narendra Kumar Goyal, Ankolekar Gurudatta, D
Renjith. B. Marar, Lakshmi N. Kaimal, Vishnu Pazhanganat,
Faisal Farook, Shubail Farook, Priya Puri, Siddhartha Sharma,
P.S. Sudheer, Rishi Maheshwari, Anne Mathew, Bharat Sood,
Rajkumar Kaushik for the Appellant.

Ranjit Kumar, S.G., Pinky Anand, ASG, Rajiv Dutta, E
Siddharth Luthra, K. Ramamurthi, Binu Tamta, Rajiv Nanda,
Deepali Dwivedi, Aayush Chandra (for B.V. Balramdas}. C.D.
Singh, Anshuman Shrivastava, Sakshi Kakar, M. Yogesh
Kanna, Hemantika Wahi for the Respondents.
F
The Judgments of the Court was delivered by

R.F. NARIMAN, J. 1. This group of petitions has come
before the Constitution Bench by a referral Order dated 28th
April, 2014. In each of them execution of the death sentence G
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 H
1016 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A 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.

2. Leading the arguments on behalf of the petitioners, Shri
8
K.K. Venugopal, Senior Advocate appearing in Writ Petition
{Crl.) No.137 of 2010 made a fervent plea that death sentence
cases are a distinct category of cases altogether. According
to the learned counsel, the award of the death penalty is a direct
C deprivation of the right to life under Article 21. The right to liberty
under Artic;le 21 is a facet of the core right to existence itself, ·
which, if deprived, renders all liberty meaningless. This right is
available as long as. life lasts. [See: Sher Singh v. State of
Punjab, (1983) 2 SCC ·345 at para 16; Shatrughan Chauhan
v. Union of India, (2014) 3 SCC 1 at para 35; V. Sriharan v. -
D Union of India, (2014) 4 SCC 242 at para 19-21. According to'
the learned counsel, Article 134 of the Constitution !lllows an
automatic right of appeal to the Supreme Court in all death
sentence cases. The death penalty is irreversible,. as observed
by Bhagwati, J. in his dissent in Bachan Singh vs. State of
.E Punjab. 1982 (:3) SCC 24 at para 26. Further, Section 354(3)
of the Cr.P.C. repognizes the fact that in death sentence cases
special reasons have to be recorded, and case law has further
embellished this to mean that it can be granted only in the .,
rarest of rare cases. Death sentence cases are given priority·
F of hearing over other matters by the Supreme Court. The
learned senior counsel further went on to add that the award of
death sentence at present depends upon the vagaries of the -
judicial mind as highlighted in several Articles and by Bhagwati,
J: in his dissent in Bachan Singh (at paras 70 and 71 ). Further,
G the Supreme Court has itself commented on these vagaries in , .•
various judgments. '[See: Aloke Nath Dutta v. State of W.B."
(2007) 12 SCC 230 at paras 153-178; Swamy Shraddananda
(2) v. State of Karnataka (2008) 13 SCC 767 at paras 48-52;
and Santosh Kumar Satishbhushan Bariyar v. State of : ,_,
H Maharashtra (2009) 6 SCC 498 at para 130]
• MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1017
COURT OF INDIA [R.F. NARIMAN, J.]
3. The 187th. Law Commission Report of 2003 has A
recommended that at least 5 Judges of the Supreme Court
hear all death cases. The Army, Air Force and Navy Acts all
require that court martials involving the death sentence should
be heard by at least 5 senior officers. An alternative submission
was made, that even if death sentence cases are to be heard B
by Benches of three Hon'ble Judges, two additional Judges
can be added at the review stage so that five learned Judges
dispose of all reviews in death sentence cases.

4. A reference was made to Order XXXVlll of the 1950
Supreme Court Rules read with Order Xi Rule 1 to show that C
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 D
disposed of and heard by circulation - that is without oral
. argument.

5. It was further submitted by learned counsel that
AMNESTY Annual Reports show that not more than 100 death E
sentences are awarded in any given year. It was further
submitted that ultimately the number of death sentences
awarded by the Supreme Court would be only 60 per annum
an.d that if limited oral arguments were allowed in these cases,
the Supreme Court's overcrowded docket could easily bear the F
load. Also, under the law as it currently stands, the success of
review in a capital case could potentially turn solely upon the
skill of counsel who drafts the review petition. Considering the
special gravity of the consequences that could follow from a
mistake by counsel, an oral hearing would be desirable to G
ensure that no injustice is inadvertently done.

6. Learned counsel appearing in Writ Petition (Crl.) No.77/
2014 argued before us that as in his case the petitioner had
undergone over 13 years in jail, in substance the petitioner had
already undergone the sentence of life imprisonment, and as H
1018 SUPREME COURT REPORTS [2014) 11 S.C.R. •
A in murder pases a sentence of life is alternative to a sentence
of death, the petitioner having already undergone a sentence
of life imprisonment could not be given the death penalty in
addition. He referred to Sections 415, 418, 426 to 428 and 433-
A of the Cr.P.C.; section 53 and 57 of the IPC and Article 20(1)
B of the Constitution to bolster this argument.

7. Shri Jaspal Singh, learned senior Advocate appearing
in Writ Petition (Crl.) No.108/2014 also supported Shri
Venugopal in demanding a review in open Court and added
one more reason for doing so. In all TADA cases, there is only
C one appeal before the Supreme 'court and since the judicial
mind is applied only twice, a review being the third bite at the
cherry should also be in open Court. · ·

. 8. In Writ Petition (Crl.) No.39/201 ;3, it was pointed out by
D learned counsel appearing for the petitioner that the Supreme
Court can limit time for oral arguments under Order XLVll Rule
7 of its Rules, and a judgment from South Africa was pointed
out which referred to the Indian law as well as the law on death
. penalties from various other nations. Similar arguments were
E advanced in Writ Petition (Crl.) No.108 of 2014 and Writ
Petition (Cl'I.) No. 52 of 2011.

9. Shri Luthra, learned Amicus Curiae made two
submissions before us. In answer to Mr. Venugopal's
alternative plea that even if three' learned Judges and not five
F learned Judges hear the originai" appeal, a review can go t6
three of the original Judges plus two -Judges newly added on,
he said that since a review by its very nature is a discovery by
· the same bench of an error committed by them, these (newly ·
added Judges) not being part of the original bench had no
G occasion to commit any error, and therefore, should not .be
added on. The second submission made before us is that_ very
often review petitions are inartistically drafted consisting of
n:iany grounds. One good ground which is sufficient is drowned
in many other grounds, and may miss the review court in
-· H circulation; hence the need for oral argument. :__
• MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1019
COURT OF INDIA [R.F. NARIMAN, J.]
10. Shri Ranjit Kumar, learned Solicitor General began his A
argument by referring to Section 362 of the Cr.P .C. and saying
that ordinarily in all criminal matters no review is provided.
When it was pointed out to him that the "court" in Section 362
could not possibly refer to the Supreme Court, and that the
review power in criminal cases at the Supreme Court level is B
to be found in Art.137 of the Constitution and Order XL of the
Supreme Court Rules, the learned Solicitor General did not
seriously press this contention. He relied on Sajjan Singh vs.
State of Rajasthan, (1965) 1 SCR 933 and various other
judgments to bolster a submission made by an exhaustive C
reading of Krishna Iyer, J. judgment in P.N. Eswara Iyer v.
Registrar, Supreme Court, (1980) 4 SCC 680, where the
amendment in Order XL, Rule 3 of the Supreme Court Rules,
1966 disposing of review petitions by circulation was upheld
by a bench of five Hon'ble Judges. Para 11 of the said judgment
was read out together with para 14 to show that Judges do 0
collectively apply their minds in Chambers to dispose .of review
petitions. In para 16 of the said judgment it was pointed out that
the power of oral hearing is granted earlier when the main
appeal is heard and is therefore a good answer to oral hearing
being denied at a review stage. The important point made here E
is that the Supreme Court is presently under severe stress
because of its workload and cannot have review petitions which
become re-hearings of the same /is to further damage an
already severely strained judicial system. Para 18 was pointed
out to us showing that in the U.S. and in the U.K. written F
arguments are often substituted for oral arguments. In para 22,
it was also pointed out that the working of the court would be
disrupted if the two Judges who heard the appeal were to sit
together again after their bench broke to hear a review petition.
Interestingly, the learned Judge refers in para 19 to the justice G
of the situation including or excluding oral hearing and in para
25 to which class of cases should be excluded from oral
hearing. It was also pointed out to us that in paras 34 and 35, ·
the learned Judge enlarged the criminal review jurisdiction to
error committed which is apparent from the record - and that H
1020 SUPREME COURT REPORTS (2014] 11 S.C.R.
•
A the word "record" should include within it all cases where some
new mat.erial which was not adverted to earlier now be taken ·
into account. The learned Solicitor General also took us through
various other judgments in which ihis statement of the law has
since been followed. [See: Devender Pal Singh v. State. NCT
B of Delhi & Another, (2003) 2 S~C .501 at page 508, 509 and
Ram Deo Chauhan v. Bani Kanta Das; (2010) 14 SCC 209 at
para 35].

11. In rejoinder, Mr. KK.Venugopal exhorted us to go into
the facts of his case and told us that the Review Petition iii his
C case has been pending since the year 2010. He, therefore,
argued that the entire matter should be heard afresh by a bench
of three Judges, as both the learned Judges who heard the
original appeal have since retired.

D DISCUSSION:
12. In a case like this, we ·think it apposite to start our
discussion with reference to the judgment of this Court in P.N.
Eswara Iyer (supra), inasmuch as that judgment upheld the
amendment in Order· XL Rule 3 of the Supreme Court Rules,
E which amendment did away with oral hearing of review petitions
in open Court. That is also a judgment of the Constitution Bench
and, therefore, being· a judgment of a co-ordinate Bench, is _
binding. on this Bench. The petitioners in that case had raised
two arguments to invalidate the amendment. The first argument
F was that oral presentation and open hearing was an aspect of
the basic creed that public justice is to be rendered from Courts
which are open to the public and not in Star Chambers
reminiscent of the Stuart dynasty that ruled England. While
answering this argument, though the Constitution Bench
G accepted the importance of oral hearing, generally it took the
view that the Court, when it comes to deciding a review .
application, decides something very miniscule, and· the
amended rule sufficiently meets the requirement of the principle
of audi alteram partem. The Court clarified that deciding a
H review petition by 'circulation' would only mean that there would
• MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1021
COURT OF INDIA [R.F. NARIMAN, J.]
not be hearing in Court but still there would be discussion.at A
judici~I conference and the Judges would meet, deliberate and
reach a collective conclusion. Thus, rejecting the argument of
oral public hearing, the Court made inter alia. the following
observation:
B
"15. The key question is different. Does it mean that by
receiving written arguments as provided in the new rule,
and reading and discussing at the conference table, as
distinguished from the 'robed' appearance on the Bench
•
and hearing oral submissions, what is perpetrated is so C
arbitrary, unfair and unreasonable a 'Pantomimi' as to
crescendo into unconstitutionality? This phantasmagoric
distortion must be dismissed as too morbid to be regarded ·
seriously - in the matter of review petitions at the Supreme
Court level.
D
)()( )()( )()(

19. This Court, as Sri Garg rightly emphasised, has
assigned special value to public hearing, and courts are
not caves nor cloisters but shrines of justice accessible for E
public prayer to all the'people. Rulings need not be cited
for this basic proposition. But every judicial exercise need
not be televised on the nation's network. The right to be
heard is of the essence but hearing does not mean more
than fair opportunity to present one's point on a dispute,
followed by a fair consideration thereof by fair minded
F
judges. Let us not romanticise this process nor stretch it
to snap it. Presentation can be written or oral, depending
on the justice of the situation. Where oral persuasiveness
is necessary it is unfair to exclude it and, therefore,
arbitrary too. But where oral presentation is not that G
essential, its exclusion is not obnoxious. What is crucial
is the guarantee of the application of an instructed,
intelligent,·impartial and open mind to the points
presented. A blank judge wearied by oral aggression is
. prone to slumber while an alert mind pr9bing the 'papered' H
1022 SUPREME COURT REPORTS (2014] 11 S.C.R.
•
A argument may land on vital aspects. To swear by orality
or to swear at manuscript advocacy is as wrong as judicial
·allergy to arguments in court. Often-times, it is the judge
who will ask for oral argument as it aids him much. To be
left helpless among ponderous paper books without the
B oral highlights of counsel; is counter-productive. Extremism
fails in law and ·life."
1

13. The Court, in the process, also noted that in many other
jurisdictions, there was ei<clusion of public hearing 1n such
C cases. Further, the Court found justification in enacting such a
rule having regard to mounting dockets and the mindless
manner of filing review petitions in most of the cases. ·

14. The argument was also raised, predicated on Article
14 of the Constitution, that Order XL Rule 1 provides a wider
D_ set of grounds of review of orders in civil proceedings than in
criminal proceedings. The Court dealt with this argument in
paras 34 to 36, and since some of the observations made in
those paras are very significant arid relevant for our purposes,
we reproduce verbatim those par~s herein:
E
"34. The rule (Order XL, Rule 1), on its face, affords a Wider
set of grounds for review for orders in civil proceedings, ··
but limits the ground vis-a-vis criminal proceedings to
'errors apparent on the face of the record'. If at all, the
concern of the law to avoid judicial error should be
F heightened when life or liberty is iil peril since civil penalties
are often less traumatic. So, it is reasonable to assume
that the framers of the rules could not have intended a
restrictive review over the cri!"1irial orders or judgments. It
is likely to be the other way about. Supposing an accused
G is sentenced to death by the Supreme Court and the
'deceased' shows up in court and the court discovers the
tragic treachery of the recorded testimony. Is the court
helpless to review and set aside the sentence of hanging?
We think not. The power to review is in Article 137 and it
H is equally wide in all proceedings. The rule merely
• MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1023
COURT OF INDIA [R.F. NARIMAN, J.]
canalises the flow from the reservoir of power. The stream A·
cannot stifle the source. Moreover, the dynamics of
interpretation depend on the demand of the context and
the lexical limits of the test. Here 'record' means any
material which is already on record or may, with the
permission of the court, be brought on record. If justice B
summons the judges to allow a vital material in, it becomes
part of the record; and if apparent error is there, correction
becomes necessitous.

35. The purpose is plain, the language is elastic and
interpretation of a necessary power must naturally be c
expansive. The substantive power is derived from Article
137 and is as wide for criminal as for civil proceedings.
Even the difference in phraseology in the rule (Order 40,
Rule 2) must, therefore, be read to encompass the same
area and not to engraft an artificial divergence productive D
of anomaly. If the expression 'record' is read to mean; in
its semantic sweep, any material even later brought on
record, with the leave of the court, it will embrace
subsequent events, new light and other grounds which we
find in Order 47, Rule 1, CPC. We see no insuperable E
difficulty in equating the area in civil and criminal
proceedings when review power is invoked from the same
source.

36. True, the review power vis-a-vis criminal matters was
F
raised only ih the course of the debate at the Bar. But when
the whole case is before us we must surely deal
comprehensively with every aspect argued and not piece-
meal with truncated parts. That will be avoidance of our
obligation. We have, therefore, cleared the ground as the G
question is of moment, of frequent occurrence ·and was
mooted in the course of the hearing. This pronouncement
on review jurisdiction in criminal proceedings set at rest a
possible controversy and is as much binding on this Court
itself (unless overruled) as on litigants. That is the discipline
of the law of precedents and the import of Article 141." H
1024 ·SUPREME COURT REPORTS [2014) 11 S.C.R.
•
A 15. It is, thus, clear from the reading of the aforesaid
judgment that the very rule of deciding review petitions by
'circulation', and without giving an oral hearing in the open ·
Court, has already been upheld. ln such a situation; can the
petitioners still claim that when it comes to deciding the review
B petitions where the death sentence is pronounced, oral hearing
should be given as a matter of right?

16. We may like to state at this stage itself that we are
going to answer the above question in the affirmative as our
verdict is that in review petitions a(ising out of those cases
C where the death penalty is awarded, it would be necessary to
accord oral hearing in the open Court. We will demonstrate, at
the appropriate stage, 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,
D giving enough space for justifying oral hearing in cases like the .
present.
I
17. As the determination of this case has to do with the
fundamental right to life, which, among all fundamental rights,
E is the most precious to all human beings, we need to delve into
Article 21 which reads as follows:

"21. Protection of life and personal liberty.-N.o person
shall be deprived of his life or personal liberty except
according to procedure established by law."
F
18. This Article has its origin in nothing less than the
Magna Carta, (the 39th Article) of 1215 vintage which King
John of England was forced to sign by his Barons. It is a little
known fact that this original charter of liberty was faulted at the
G very start and did not get off the ground because of a Papal
Bull issued by Pope Innocent the third declaring this charter to ·
be void. Strangely, like Magna Carta, Art. 21 did not get off the
ground for 28 years after which, unshackled, it has become the
single most important fundamental right under the Constitution
H of India, being described as one of a holy trinity consisting of
• MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1025
COURT OF INDIA [RF. NARIMAN, J.]
a 'golden triangle' (see Minerva Mills v. Union of India 1981 {1) A
SCR 206 at 263), and being one of two articles which cannot
be eclipsed during an emergency (Article 359 as amended by
the Constitution 44th Amendment).

19. It is to be noted that Article 21 as it originally stood in 8
the Draft Constitution was as follows (Cl.15):-

"No person shall be deprived of his life or liberty without
due process of law."

20. The Drafting Committee introduced two changes in the c
Clause - (i) They qualified the word 'liberty' by the word
'personal' in order to preclude a wide interpretation of the word
so as not to include the freedoms which had already been dealt
with in Art.13 (corresponding to Art. 19 of the Constitution). (ii)
They also substituted the words "due process of law" by the D·
words "procedure established by law", following the Japanese
Constitution (Art. XXXI), because they were more 'specific'.

21. Over the question whether the expression 'due process
of law' should be restored in place of the words 'procedure ·
established by law', there was a sharp difference of opinion in E
the Constituent Assembly, even amongst the members of the
Drafting Committee. On the one side, was the view of Sri
Munshi, in favour of 'due process'.

22. On the other side, was Sri Alladi Krishnaswami Iyer, F
who favoured the taking of life and liberty by legislation.

Dr. Ambedkar merely summed up the two views and left
it to the House "to decide in any way it likes".

The House adopted the Clause as drafted by the Drafting G
Committee, rejecting "due process". The result, as stated by
Dr. Ambedkar, at a subsequ_ent stage, was that Art.21 gave "a
carte blanche to make and provide for the arrest of any person
under any circumstances as Parliament may think fit."
H
i
i..
1026 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A 23. As was stated by the Supreme Court in A.K. Gopalan
v. The State of Madras, 1950 SCR 88, Article 21 seems to
have been borrowed from Article 31 of the then recently enacted
Japanese Constitution. This was in keeping with B.N. Rau's
view who, in his initial draft of the Fundamental Rights Chapter,
B followed the advice of-U.S. Supreme Court Justice Frankfurter
not to incorporate "due process" from the 5th amendment to
the U.S. Constitution. The result was that so far as property was
concerned, a full blown 'due process' was introduced in Articles
19(1)(f) and 31 of the Constitution. The 5th amendment of the
c l,J.S. Constitution was thus bifurcated - a full blown substantive
due process qua property, and procedure established by law
qua life and personal liberty. It took 28 years for India to remedy
this situation. By the Constitution 44th. amendment Act, even
the truncated right to property was completely .deleted, and in
. the same year in Maneka Gandhi v. Union of India, (1978) 2
0
SCR 621, the Supreme Court held that the procedure
established by law cannot be arbitrary but should be just, fair
and reasonable.

24. A six Judge Bench of the Supreme Court in A.K.
E Gopalan's case construed Art.21 linguistically and tiaxtually.
Kania, J. held: ·
'
"Four marked points of distinction between the clause in
the American Constitution and Article 21 of the
F Constitution of India may be noticed at this stage. The first
is that in USA's Constitution the word "liberty" is used
simpliciter while in India it is restricted to personal liberty.
(2) in USA's Constitution the same protection is given to
property, while in India the fundamental right in respect of
property is contained in Article 31. (3) The word "due" is
G
omitted altogether and the expression "due process of law"
is not used deliberately, (4) The word "established" is used
and is limited to "Procedure" in our Article 21." lat page
109) .

H
• MOHD. ARIF @ASH FAQ v. REGISTRAR, SUPREME 1027
COURT OF INDIA [R.F. NARIMAN, J.]
In the picturesque language of Das, J. it was stated: A

"It is said that if this strictly technical interpretation is put
upon Ariicle 21 then it will not constitute a fundamental right
at all and need not have been placed in the chapter on
Fundamental Rights, for every person's life and personal 8
liberty will be at the mercy of the Legislature which, by
providing some sort of a procedure and complying with the
few requirements of Article 22, may, at any time, deprive
a person of his life and liberty _at its pleasure and whim ....
Subject to the limitations, .I have mentioned which are
certainly justiciable, our Constitution has accepted the C
supremacy of the legislative authority and, that being so,
we must be prepared to face occasional vagaries of that
body and to put up with enactments of the nature of the
atrocious English statute to which learned counsel for the
petitioner has repeatedly referred, namely, that the Bishop D
of Rochester's cook be boiled to death. If Parliament may
take away life by providing for hanging by the neck,
logically there can be no objection if it provides a sentence
of death by shooting by a firing squad or by guillotine or in
the electric chair or even by boiling in oil. A procedure laid E
down by the legislature may offenc against the Court's
sense of justice and fair play and a sentence provided by
the legislature may outrage the Court's notions of
penology, but that is a wholly irrelevant consideration. The
Court may construe and interpret the Constitution and F
ascertain its true meaning but once that is done the Court
_cannot question its wisdom or policy. The Constitution is
supreme. The Court must take the Constitution as it finds
it, even if it does not accord with its preconceived notions
of what an ideal Constitution should be. Our protection G
against legislative tyranny, if any, lies in the ultimate
analysis in a free and intelligent public opinion which must
· eventually assert itself." (at page 319-321)

25. In Kharak Singh v. State of U.P., (1964) 1 SCR 332,
H
1028 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A Gopalan's reading of fundamental rights in watertight
compartments was reiterated by the majority. However, they
went one step further to say that "personal.liberty" in.Art.21 takes
in and comprises the residue after all the rights granted by
Art.19.
B
Justices Subba Rao and Shah disagreed. They held:

"The fundamental right of life and personal liberty. have
many attributes and some of them are found in Art. 19. If
a person's fundamentai right under Art. 21 is infringed, the
c State can rely upon a law to sustain the action; but that
cannot be a complete answer. unless the said law satisfies
the test laid down in Art. 19(2) so far as the attributes
covered by Art. 19(1) are concerned. In other .words, the
State must satisfy that both the fundamental rights are not
D infringed by showing that th~re is a law and that it does
amount to a reasonable restriction within the meaning of
Art. 19(2) of the Constitution. But in this case no such
defence is available, as admittedly there is no such law.
So the petitioner can legitimately plead. that his
E· fundamental rights both under Art. 19(1)(d) and Art. 21 are
infringed by the State." (at page 356-357).

26. The minority judgment of Subba Rao and Shah, JJ.
eventually became law in R.C. Cooper (Bank Nationalisation)
vs. Union of India. (1970) 1 SCC 248,. where the 11-Judge
· F Bench finally discarded Gopalan's view and held that various
fundamental rights contained in different articles are not mutually
exclusive: '

"We are therefore unable to hold that the challenge to the
G validity.of the provision for acquisition is liable to be tested
only on the ground of non-compliance with Article 31(2).
Article 31 (2) requires that property must be acquired for a
public purpose and that it must be acquired under a law
with characteristics set out in that Article. Formal
H compliance with the conditions under Article 31 (2) is not
• MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1029
COURT OF INDIA [R.F. NARIMAN, J.]
sufficient to negative the protection of the guarantee of the A
right to prop"erty. Acquisition must be under the authority
of a law and the expression "law" means a law which is
within the competence of the Legislature, and does not
impair the guarantee of the rights in .Part Ill. We are unable,
therefore, to agree that Articles 19(1)(f) and 31(2) are B
mutually exclusive." (para 53)

27. The 'stage was now set for the judgment in Maneka
Gandhi. Several judgments were delivered, and the upshot of
all of them was that Article 21 was to be read aiong with other C
fundamental rights, and so read not only has the procedure
established by law to be just, fair and reasonable, but also the
law itself has to be reasonable as Articles 14 and 19 have now
to be read into Article 21. [See: at page 646-648 per Beg, CJ.,
at page 669, 671-674, 687 per Bhagwati, J. and at page 720-
. 723 per Krishna Iyer, J.]. Krishna Iyer, J. set out the new doctrine D
with remarkable clarity thus:

"To sum up, 'procedure' in Article 21 means fair, not formal
procedure. 'Law' is reasonable law, not any enacted piece.
As Article 22 specifically spells out the procedural E
safeguards for preventive and punitive detention, a law
providing for such detentions should conform to Article 22.
It has been rightly pointed out that for other rights forming
part of personal liberty, the procedural safeguards ·
enshrined in Article 21 are available. Otheiwise, as the F
procedural safeguards contained in Article 22 will be
available only in. cases of preventive and punitive
detention, the right to life, more fundamental than any other
forming part of personal liberty and paramount to the
happiness, dignity and worth of the individual, will not be G
entitled to any procedural safeguard save such as a
legislature's mood chooses." (at page 723)

28. Close on the heels of Maneka Gandhi's case came
Mithu vs. State of Punjab, (1983) 2 SCC 277, in which case
the Court noted as follows: H
1030 SUPREME COURT REPORTS [2014) 11 S.C.R. •
A "In Sunil Batra vs. Delhi Administration. (1978) 4 SCC 494
while dealing with the question as to whether a person
awaiting death sentence can be· kept in solitary
confinement, Krishna Iyer J. said that though our
Constitution did not have a "due process" clause as in the .
B American Constitution; the same consequence ensued
after the decisions in the Bank Nationalisation's case
(1970) 1 sec 248 and Maneka Gandhi's case (1978) 1
sec 248 ....
In Bachan Singh which upheld the constitutional validity ol ·
c the death penalty, Sarkaria J., speaking for the majority,
said that if Article 21 is understood in accordance with the
interpretation put upon it in Maneka Gandhi, it will read to
say that: ' -
1
D No person shall be deprived of his life or personal·
liberty except according t_o fair, just and reasonable
procedure established by valid law." (at para 6)

The wheel has turned full circle. Substantive due process ·
E is now to be applied to the fundamental right to life and liberty.

Application of Art.21 to these Writ Petitions:

29. We agree with Shri K.K.Venugopal that death
sentence cases are a distinct category of cases altogether.
F Quite apart fro in Art.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
G 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
H awarded in the rarest of rare cases. There may be aggravating
• MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1031
COURT OF INDIA [R.F. NARIMAN, J.]

as well as mitigating circumstances which are to be examined A
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 B
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. Deflecting a little fror:n the death penalty cases, we C
deem it necessary to make certain general comments on
sentencing, as they are relevant to the context. Crime and
punishment are two sides of the same coin. Punishment must
fit the crime. The notion of 'Just deserts' or a sentence
proportionate to the offender's culpability was the principle· D
which, by passage of time, became applicable to criminal
jurisprudence. It is not out of place to mention that in all of
recorded history, there has never been a time when crime and
punishment have not been the subject of debate and difference
of opinion. There are no statutory guidelines to regulate
punishment. Therefore, in practice, there is much variance in E
the matter of sentencing. In many countries, there are laws
prescribing sentencing guidelines, but there is no statutory
sentencing policy in India. The IPC, prescribes only the
niaximum punishments for offences and _in some cases
minimum punishment is also prescribed. The Judges exercise F
wide discretion within the statutory limits and the scope for
deciding the amount of punishment is left to the judiciary to
reach decision after hearing the parties. However, what factors
which should be considered while sentencing is not specified
under law in any great detail. Emanuel Kant, the German G
philosopher, sounds pessimistic when he says "judicial
punishment can never serve merely as a means to further
another good, whether for the offender himself or for the society,
but must always be inflicted on him for the sole reason that he
has committed a crime". A sentence is a compound of many H
1032 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A 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, (1980) 2 SCC 684 at pages 749-750, that a Judge
B 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
c considering all relevant factors \hat 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
0
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 ·
E oral hearing in such a review petition becomes an integral part
of "reasonable procedure".

31. We are of the opinion that "reasonable procedure"
would encompass oral hearing of review petitions arising out
F of death penalties. The statement of Justice Holmes, that the
life of law is not logic; it is experience, aptly applies here.

32. The first factor mentioned above, in support of our
conclusion, is more fundamental than the second one. Death
penalty is irreversible in nature. Once a death sentence is
G executed, that results in taking away the life of the convict. If it
is found thereafter that such a sentence was not warranted, that
would be of no use as the life of that person cannot be brought
back. This being so, we feel that if the fundamental right to life
is involved, any procedure to be just, fair and reasonable should
H
• MOHD. ARIF @ASH FAQ v. REGISTRAR, SUPREME 1033
COURT OF INDIA [R.F. NARIMAN, J.]
take into account the two factors mentioned above. That being A
so, we feel that a limited oral hearing even at the review stage
is mandated by Art.21 in all death sentence cases.

33. The validity of no oral hearing rule in review petitions,
generally, has been upheld in P.N. Eswara Iyer {supra) which B
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. C
Eswara Iyer {supra) itself, would apply in such cases. We are
conscious of the fact that while awarding a death sentence, in
most of the cases, this Court would generally be affirming the
decision on this aspect already arrived at by two Courts below
namely the trial court as well as the High Court. After such an
affirmation, the scope of review of such a judgment may be Very D
narrow. At the same time, when it is a·question of life and death
of a person, even a remote chance of deviating from such a
decision while exercising the review jurisdiction, would justify
oral hearing in a review petition. To borrow the words of Justice
Krishna Iyer in P.N. Eswara Iyer (supra): E

"23. 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"
F
34. We feel that this oral hearing, in death sentence cases,
becomes too precious to be parted with. We also quote the
following observations from that judgment :

"29A. The possible impression that we are debunking the
value of oral advocacy in open court must be erased. G
Experie.nce has shown that, at all levels, the bar, through
the spoken word and tno written brief, has aided the
process of judicial justice. Justicing is an art even as
advocacy is an art. Happy interaction between the two
· ma~es for the functional fulfillment of the court system. No H
1034 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A judicial 'emergency' can jettison the vital breath of spoken
advocacy in an open forum. Indeed, there is no judicial cry
for extinguishmentof oral argument altogether."

35. No doubt, the Court thereafter reminded us that the time
has come for proper evaluation of oral argument at the review
8
stage. However, 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.

I
C 36. If a pyramidical structure is to be imagined, with life
on top, personal liberty (and all the 'rights it.encompasses under
the new doctrine) immediately below it and other fundamental
rights below personal liberty it is obvious that this judgment will
apply only to death sentence cases. In most other cases, the
D factors mentioned by Krishna Iyer, J. in particular the Supreme
Court's overcrowded docket, and the fact that a full oral hearing
has preceded judgment of a criminal appeal on merits, may tilt
the balance the other way.

E 37. It is also important to advert to Shri Luthra, learned
Amicus Curiae's submission. Review Petitions are inartistically
drafted. And oral submissions by a skilled advocate can bring
home a point which may otherwise not be succinctly stated,
given the enlarged scope of review in criminal matters, as
stated in P.N. Eswara lyer's case. The fact that the courts
F overcrowded docket would be able to manage such limited oral
hearings in death sentence cases only, being roughly 60 per
annum, is not a factor to which great weight need be accorded
as the fundamental right to life is the only paramount factor in
these cases. ·
G
38. With reference to the plea that all death sentence cases
be heard by at leastthree Hon'ble Uudges, that appears to have
been remedied by Supreme Court Rules, 2013, Order VI Rule
3, which has beeri recently notified, reads thus:
H '
• MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1035
COURT OF INDIA [R.F. NARIMAN, J.)
ORDER VI A

CONSTITUTION OF DIVISION COURTS AND POWE~S OF
A SINGLE JUDGE

3. Every cause, appeal or other proceedings arising
out of a case in which death sentence has been confirmed B
or awarded by the High Court shall be heard by a Bench
consisting of not less than three Judges.

4. If a Bench of less than three Judges, hearing a
cause, appeal or matter, is of the opinion that the accused c
should be sentenced to death it shall refer the matter to
the Chief Justice who shall thereupon constitute a Bench
of not less than three Judges for hearing it.

39. Henceforth, in all cases in which death sentence has
been awarded by the High Court in appeals pending before the D
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 E
persuaded to have a minimum of 5 learned Judges hear all
death sentence cases. Further, we agree with the submission
of Shri Luthra. that a review is ordinarily to be heard only by the
same bench which originally heard the criminal appeal. This is
obviously fdr the reason that in order that a review succeeds, F
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 Shri Venugopal's plea that two additional Judges be
added at the review stage in death sentence cases. G

40. We do not think it necessary to advert to Shri Jaspal
Singh's arguments since we are accepting that a limited oral
review be granted in all death sentence cases including TADA
cases. We accept what is pointed out by the learned counsel H
for the petitioner in Writ Petition No.39/2013 and provide for
1036 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A an outer limit of 30 minutes in all such cases. When we come
to P. N. Eswara lyer's case which was heavily.relied upon by
the learned Solicitor General, we find that the reason for
upholding the newly introduced Order XL Rule 3 in the Supreme
Court Rules is basically because of severe stress of the
B Supreme Court workload. We may add that that stress has
been multiplied several fold since the year 1980. Despite that,
as we have held above, we feel that the fundamental right to
life and the irreversibility of a death sentence mandate that oral
hearing be_given at the review stage in death sentence cases,
c as a just, fair and reasonable procedure undet Article 21 •
mandates such hearing, and cannot give way to the severe ·
stress of the workload of the Supreme Court. Interestingly, in
P.N. Eswara lyer's case itself, two interesting observations are
to be. found. In para 19, Krishna Iyer, J. says that
• ... presentation can be written or oral, depending upon the
0
justice of the situation." And again in para 25, the learned Judge
said that "... the problem really is to find out which class of cases
may, without risk of injustice, be disposed of without. oral
presentation."

E 41. We are of the view that the justice of the situation in ·
this class of cases demands a limited oral hearing for the
reasons given above.

42 .. Insofar as Shri Venugopal's plea in .his writ petition,
F that since his review petition is pending since the year 2010
and since the two learned Judges who heard the appeal on
merits have since retired,· the entire matter should be heard
afresh by a bench of three Hon'ble Judges, we feel that the
review petition that is pending since the year 2010 should be
disposed of as soon as possible by a bench of three Hon'ble.
G Judges after giving counsel a maximum of 30 minutes for oral
argument. This matter, therefore, be placed before a bench of
three Hon'ble Judges by the Registry as soon as possible.
.. I . .
43. Turning now to the facts of W.P.No.77/2014, we find
H that the petitioner was· arrested on 25.12.2000 and convicted
• MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1037
COURT OF INDIA [R.F. NARIMAN, J'.J
by the learned Sessions Judge on 31-10-2005. The High Co1:1rt A .
dismissed his appeal on 13.9.2007 and the Supreme Court
dismissed the appeal from the High Court's judgment on
10.8.2011. The Review Petition of the petitioner was, thereafter,
dismissed on 28.8.2012. We are informed at the bar that a
curative petition was thereafter filed sometime in 2013 which B
was dismissed on 23.1.2014. All along, the petitioner has been
in jail for about 13% years. Since the curative petition also
stands dismissed after the dismissal of review petition, we
wouid not like to reopen all these proceedings at this stage:
Also, time taken in court proceedings cannot be taken into c
account to say that there is a delay which would convert a death
sentence into one for life. [See: Triveniben v. State of Gujarat.
{1989) 1 SCC 678, at paras 16, 23, 72]. Equally, spending 13%
years in jail does not mean that the petitioner has undergone
a sentence for life, It is settled by Swamy Shraddananda (2) v.
0
State of Karnataka, (2008) 13 SCC 767 that awarding a
sentence of life imprisonment means life and not a mere 14
. years in jail. In this case, it was held as follows:

"75. It is now conclusively settled by a catena of decisions
that the punishment of imprisonment for life handed down E
by the Court means a sentence of imprisonment for .the
convict for the rest of his life. [See the decisions of this
Court in Gopal Vinayak Godse v. State of Maharashtra
(Constitution Bench), Dalbir Singh v. State of Punjab, Maru
Ram v. Union of India (Constitution Bench), Naib Singh v. F
State of Punjab, Ashok Kumar v. Union of India, Laxman
Naskar v. State of W.B., Zahid Hussein v. State ofW.B.,
Kamalanantha v. State of T.N., Mohd. Munna v. Union of
v.
India and C.A. Pious State of Kerala.]
G
76. It is equally well settled that Section 57 of the Penal
Code does not in any way limit the punishment of
imprisonment for life to a term of twenty years. Section 57
is only for calculating fractions of terms of punishment and
provides that imprisonment for life shall be reckoned as H.
equivalent to imprisonment for twenty years. (See: Gopal
'
1038 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A Vinayak Godse and Ashok Kumar). The object and
purpose of Section 57 will be clear by simply referring to
Sections 65, 116, 119, 129 and 511 of the Penal Code."

44. Regard being had to this, .it is not necessary to refer
to the various sections of the Cr.P.C. and the Penal Code
8
argued before us. Equally, Article 20(1) has no manner of
application as the writ petitioner is not being subjected to a
penalty greater than that which might have been inflicted under
the
. law in force at the time of commission
I of the
. offence.

C 45. This petition is therefore dismissed.
I
46. We make it clear that the law laid down in this judgment,.
viz., the right of a limited oral hearing in review petitions where
death sentence is given, shall be applicable only in pending
0 review petitions and such. petitions filed in future. 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
E where even a curative petition is dismissed, it would not be
proper to reopen such matters.

47. All the writ petitions are disposed of accordingly.

CHELAMESWAR, J. 1. I have had the privilege of reading
. F 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
G 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 s~ill sanctioned by law in this
H
• MOHD. ARIF @ASHFAQ v. REGISTRAR, su,eREME 1039
COURT OF INDIA [J.CHELAMESWAR, J.)
country. Article 21 of the Constitution itself recognizes the A
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 B
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 c
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 .D
not propose to deal with the said aspect of the matter.

3. Section 531 of the Indian Penal Code, 1860 (hereinafter
referred to as "!PC") 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 E
prescribe death penalty for various offences as one of the
alternative punishments for these offences 2 . For example,
1. 53. Punishments- The punishments in which offenders are liable under
the provisions of this Code are-
First - Death;
F
Secondly - Imprisonment for life;
. Thirdly- [Omitted by Act 17of1949, sec. 2 (wefS.4.1949)]
Fourthly - lmprisonment, which is of two descriptions, namely -
(1) Rigorous, that is, with hard labour;
G
(2) Simple;
Fifthly - Forfeiture of property;
Sixthly- Fine.
2. The offences for which death is one of the alternative punishments under
IPC are under Seciions 121, 132, 194, 302, 305, 307(3), 364A and 376A,
376E and 396.. H
1040 SUPREME COURT REPORTS
t
(2014) 11 S.C.R.
•
A 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.
B
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, au persons accused of offences are tried
in accordance with the procedure prescribed under the Code
C 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
D debarred to award death penalty. Sections 28 3 and 29 4 of the

3. 28. Sentences which High Courts and Sessions Judges may pass:
(1) A High Court may pass any sentence authorised by law
E (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
F 4. 29. Sentences which Magistrates may pass
(1) The Court of a Chief Judicial Magistrate may pass any sentence
authorised by law except a sentence of death or of imprisonment for life
or ..of imprisonment for a term exceeding seven years · ·
(2) The Court of a Magistrate of the first class may pass ·a sentence of
imprisonment for a term not exceeding three years, or of fine not exceeding
G five thousand rupees, or both
(3) The Court of a Magistrate of the second class may pass a sentence of
imprisonment for a term not exceeding one year, or of fine not exceeding
one thousand rupees, or of both •·
. (4) The Court of a Chief Metropolitan Magistrate shall have the powers of
the Court of a Chief Judicial Magistrate arid that of a Metropolitan
H Magistrate, the powers of the Court of a Magistrate of the first class
• MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1041
COURT OF INDIA [J.CHELAMESWAR, J.]
CrPC prescribe the punishment which the various courts in the A
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 8
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
applicable.to the proceedings before the special courts and C
such special courts are generally manned by persons who are
either Sessions Judges or Addi. Sessions Judges.

6, Legislature, as a matter of policy, entrusted the trial of
serious offences for which death penalty is one of the possible
penalties, to relatively more experienced members of the D
subordinate judiciary.

7. Even though Sessions Courts are authorized to award
punishment of death in an appropriate case, the authority of the
Sessions Court is further subjected to two limitations:-
E
(i} Under sub-section (3) of Section 354 of the CrPC,
the judgment by which the punishment of death is
awarded, is required to give special reasons for
such sentence .
F
354. Language and contents of judgment.- (1)
Except as otherwise expressly provided by this
Code, every judgment referred to in section 353,-

********* ******* ******** **********
G
(3) When the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state
the reasons for the sentence awarded, and, in the case of
H
1042 SUPREME COURT REPORTS.
'
[2014] 11 S.C.R.
•
'
A sentence of death, the special reasons for such sentence.
*********** ********* ************ *************

(ii) The second limitation is'contained in chapter XXVlll
of the CrPC. Section 366( 1) thereof mandates that
8 · a Court of Session passing a sentence of death
shall submit the proceedings to the High Court and
the sentence so imposed by the Sessions Court
shall not be executed unless the High Court
confirms the punishment awarded.
c
8. Section 367 of the CrPC authorises the High Court to
make a further enquiry into the matter or take additional
evidence. Under Section 368 of the CrPC, the High Court is
precluded from confirming the sentence until the period allowed
0 for preferring an appeal (by the accused) has expired or if an
appeal is already presented within the period of limitation
prescribed under law, until such appeal is disposed of. In other
words, before confirming the award of death sentence, the High
Court is required to examine the ~orrectness of the finding of
E the guilt of the accused recorded by the Sessions Court, if the
accused chooses to challenge the correctness of the finding
of the guilt by the Sessions Court., In theory, the role of the High
Court in confirming or declining to confirm the sentence of death
awarded by the Sessions Court is limited to the examination
of the correctness or the appropriateness of the sentence. ThEt
F correctness and legality of the finding of guilt recorded by the
Sessions Court, is required to be examined in the appeal, if
preferred against such finding by the accused. Hence, the
requirement under Section 368 is to await the dE;!Cision in the
appeal preferred by the accused against the finding of guilt.
G
9. However, in practice .when a reference is made under
Section 366, the High Court invariably examines the
correctness of the finding of the guilt recorded by the Sessions
Court. In fact such a duty is mandated in Subbaiah Ambalam
H v. State of Tamil Nadu, AIR 1977 SC 2046-
•
•

MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1043
COURT OF INDIA [J.CHELAMESWAR, J.]
"It is well settled that in a Reference under S.374 of the A
Code of Criminal Procedure for confirming death
sentence, the High Court has to consider the evidence
afresh and to arrive at its independent finding with regard
to the guilt of the accused.".
B
and in Surjit Singh & Others v. The State of Punjab,
Criminal Appeal No.77 of 1968 decided by this Court on 15th
October, 1968-

"It is clear from a perusal of these provisions that on a
reference under s.374, Criminal Procedure Code, the C
entire case is before the High Court. In hearing such a
reference the High Court has to satisfy itself as to whether
a case beyond a reasonable doubt has been made out
against the accused persons for the infliction of the penalty
.of death. In other words, in hearing the reference, it is the D
duty of the High Court to reappraise and to reassess the
entire evidence and to come to an independent conclusion
as to the guilt or innocence of each of the accused persons
mentioned in the reference."
E
10. Section 369. CrPC further stipulates that every case
referred under Section 366 to the High Court shall be heard
and decided by at least two judges of the High Court, if that
High Court consists of two or more judges.·

11. In a case where the penalty of death is confirmed by F
the High Court in accordance with the CrPC, the decision is
final except for two categories of cases. Under Article 1345 , a

. 5. 134. Appellate jurisdiction of Supreme Court in regard to criminal
matters.·
G
(1) An appeal shall lie to the Supreme Court from any judgment, final order
or sentence in a criminal proceeding of a High Court in the territory of India
if the High Court-
(a) has on appeal reversed an order of acquittal of an accused person· ·
and sentenced him to death; or
(b) has withdrawn for trial before itself any case from any court subordinate H
•
•

1044 SUPREME COURT REPORTS [2014) 11 S.C.R.

A right of appeal to this Court is created in criminal cases where
the High Court on appeal reverses an order of acquittal of an
accused person recorded by the Sessions Court and
sentences him to death or where the High Court withdraws for
trial before itself any case pending before a court subordinate
B to it and convicts the accused person and awards death
sentence to such an accused person, I may also state that apart
from such a constitutional right of appeal, as a matter of
practice, this Court has been granting special leave under
Article 136 in almost, as a matter of course, every case where
c a penalty of death is awarded.
12. In this Court, appeals, whether civil or criminal, have
always been heard by at least two judges.

13. The authority of the courts to examine and adjudicate
D the disputes between the sovereign and its subjects and
subjects inter se is conferred by law, be it the superior Law of
Constitution or the ordinary statutorY law. Such jurisdiction can ·
be either original or appellate. A court's jurisdiction to review
its own earlier judgment is normally conferred by law. The
E jurisdiction of this Court to review its own judgments is
expressly conferred under Article 137 of the Constitution.

137. Review of judgments or orders by the Supreme
Court:- Subject to the provisions of any law made by
F
to its authority and has in such trial convicted the accused person and
sentenced him to death; or
(c) certifies under article 134A that the case is a fit one for appeal to the
Supreme Court:
G Provided that an appeal under sub-clause (c) shall lie subject to such
provisions as may be made in that behalf under clause (1) of article 145
and to such conditions as the High Court may establish or require.
(2) Parliament may by law confer on the Supreme Court any further powers
to entertain and hear appeals from any judgment, final order or sentence
in a criminal proceeding of a High Court in the territory of India subject to
H such conditions and limitations as may be specified in such law.
• MOHD. ARIF @ASHFAQ v. .REGISTRAR, SUPREME 1045
COURT OF INDIA [J.CHELAMESWAR, J.]
Parliament or any rules made under Arti.cle 145, the A
Supreme Court shall have power to review any judgment
pronounced or order made by it.

14. The question on hand is as to the procedure to be
followed in exercising such jurisdiction. Article 145 of the
Constitution authorizes ttie making of rules by this Court
B
regarding the practice and procedure of the court, of course
such authority of this Court is made subject to the provisions
of any law made by Parliament. Article 145(1)(e) expressly
authorizes this Court to make rules as to the conditions subject C
to which a judgment or order made by this Court be reviewed
and the procedure for such review.

Article 145: Rules of Court, etc.- (1) Subject to the
provisions of any law made by Parliament, the Supreme
Court may from time to time, With the approval of the D
President, make rules for regulating generally the practice
and procedure of the Court including;

***** *****

(e) Rules as to the conditions subject to which any E
judgment pronounced or order made by the Court may be
reviewed and the procedure for such review including the
time within which applications to the Court for such review
are to be entered;
F
***** ***** *****
15. In exercise of such power, this Court made Rules from
time to time. The Rules in vogue are called the Supreme Court
Rules, 19666 . Order XL of the said Rules occurring in Part VIII G
deals with the subject of review. Rule 1 thereof stipulates that

6. For the sake of clarity, it needs to be mentioned that the Supreme Court
Rules, 1966 have been dealt .with as it existed during the course of hearing
of these matters. W.e.f. 19th August 2014, the Supreme Court Rules, 2013
have come into force. H
1046 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A no application for review in a criminal proceeding be
entertained by this Court except on the ground of an error
apparent on the face of the record.

Rule 1. The· Court may review. its judgment or order, but
B no application for review will be entertaineq in a civil
proceeding except on the ground mentioned in Order
XLVll, rule I of the Code, and in a criminal proceeding
except on the ground of an error apparent on the face of
the record. I

c 16. Rule 3 stipulates that an application for review shall be
disposed of by circulation without any oral arguments.

Rule 3. Unless otherwise ordered by the Court an
application for review shall be disposed of by circulation
D without any oral arguments~ but the petitioner may
supplement his petition by· additional written arguments.
· The Court may either dismiss the petition or direct notice
to the opposite party. An application for review shall as far
as practicable be circulated to 'the same Judge or Bench
E of Judges that delivered the judgment or order sought to
be reviewed. '

Rule 3 as it exists today was added on 9th August, 1978 with
effect from 19th August, 1978.

·· F 17. The constitutionality of the said rule was promptly
challenged and repelled by a Constitution Bench of this Court
- in P.N. Eswara Iyer & Others v. Registrar, Supreme Court
of India, (1980) 4 SCC 680.
18. This Court took note of the fact that in a departure from -
G the existing system, the new rules eliminate oralhearing in a
review application and mandate that a reyiew application shall
be disposed of by circulation. The Court also noticed that even
the new Rules do hot totally eliminate the possibility of an oral
hearing, the discretion is preserved in the Court to grant an oral
H
•MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1047
COURT OF INDIA [J.CHELAMESWAR, J.]
hearing in an appropriate case. The Court negated the A
submission that 'the scuttling of oral presentation and open
hearing is subversive of the basic creed that public justice shall
be rendered from the public seat, not in secret conclave .... ."

19. Such a conclusion is reached by the Court on the B
ground that a review is not the original proceedi.ng in this Court.
It is preceded by an "antecedent judicial hearing", therefore,
such a second consideration need not be."plenary". This Court
categorically recorded, rejecting the challenge that the rule of
audi alteram partem demands a hearing in open.court; ·
c ...
"19 .....The right to be heard is of the essence but hearing
does not mean more than fair opportunity to present one's
point on a dispute, followed by a fair consideration thereof
by fair minded judges. Let us not romanticize this process
nor stretch it to snap it. Presentation can be written or oral, D
depending on the justice of the situation •.... "

It further held;

"20 ...... Granting basic bona tides in the judges of the
highest court it is impossible to argue that partial E
foreclosure of oral arguments in court is either unfair or
unreasonable or so vicious an invasion of natural justice
as to be ostracized from our constitution jurisprudence."

This Court held that the purpose behind amendment of the rule F
eliminating oral hearing is that the demands cf court
management strategies require this Court to examine from time
to time the procedure to be followed in various classes of
cases brought before it and make suitable rules.

"25. . ... The balancing of oral advocacy and written G
presentation is as much a matter of principle as of
pragmatism. The compulsions of realities, without
compromise on basics, offer the sound solution in a given
>ituation. There are no absolutes in a universe of relativity.
H
1048 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A The pressure.ofthe case-load. on the Judges' limited time,.
the serious responsibility to bestow the best thought on the
great issues of the country projected on the court's
agenda, the deep study and large research which must
lend wisdom to the pronouncements of the Supreme Court
8 which enjoy awesome finality and the unconscionable
backlog of chronic litigation which converts the expensive
end-product through sheer protraction into sour injustice -
. all these emphasise the urgency of rationalising and
streamlining court management with a view to saving court
c time for the most number of cases with the least sacrifice
of quality and turnover. If, without much injury, a certain
class of cases can be disposed of without oral hearing,
there is no good reason for not making such an experiment.
If, on a close perusal of the paper-book, the Judges find
that there is no merit or statable case, there is no special
D
virtue in sanctifying the dismissal by an oral ritual. The ,_J
·~-

problem really is to find out which class of cases may, ,
without risk of injustice, be disposed of without oral·
presentation. This is the final court of provisional infallibility,
the summit court, which not merely disposes of cases
E beyond challenge, but is also the judicial institution
entrusted with the constitutional responsibility of
authoritatively declaring the law of the land. Therefore, if
oral hearing will perfect the process it should not be
dispensed with. Even so, where issues of national moment
F which the Supreme Court alone can adequately tackle are
not involved, and if a considerable oral hearing and
considered order have already been rendered, a review
petition may not be so demanding upon the Judge's
"Bench" attention, especially if, on the face of it, there is
G nothing new, nothing grave at stake. Even here, if there is
some case calling for examination or suggestive of an
earlier error, the court may well post the case for an oral
hearing. {Disposal by circulation is a calculated risk where
no problem or peril is visible'.)"
H
• MOHD. ARIF @ASH FAQ v. REGISTRAR, SUPREME 1049
COURT OF INDIA [J.CHELAMESWAR, J.]
The Bench also observed: A
"37 .... We do not claim that orality can be given a
permanent holiday. Such an attitude is an over-reaction to
argumentum ad nauseum. But we must importantly
underscore that while lawyer's advocacy cannot be m.ade B
to judicial measure especially if judges are impatient, there
is a strong case for processing argumentation by
rationalisation, streamlining, abbreviation and in, special
situations, elimination. Review proceedings in the
Supreme Court belongs to the last category. There is no
rigidity about forensic strategies and the court must retain C
a flexible power in regard to limiting the time of oral
arguments or, in exceptional cases, eliminating orality
altogether, the paramount principle being fair justice .....•

20. The reasons given by my learned brother in support D
of his conclusion that a limited oral hearing should be granted
to the accused are:

(i) that there is a possibility of (given the same set of
facts) two judicial minds reac.hing different E
conclusions either to award or decline to award
death sentence.

(ii) that the death penalty once executed becomes
irreversible and therefore every opportunity must be
given to the condemned convict to establish that his F
life ought not to be extinguished. The obligation to
give such an opportunity takes within its sweep, that
an oral hearing be given in a review petition, as a
part of a "reasonable procedure" flowing from the
mandate of Article 21. G

(iii) that even a remote chance of deviating from the
original decision would justify an oral hearing in a ·
review petition.
H
1050 SUPREME COURT REPORTS [2014] 11 S.C.R.
•
A 21. I agree with my learned· brother that death penalty
results in deprivation of the most fundamental liberty
guaranteed by the Constitution resulting in an irreversible
situation. Therefore, such deprivation should be only in
accordance with the law (both s'ubstantive and procedural)
B which is consistent with the constitutional guarantee under
Articles 14 and 21 etc.
I
· 22. But, I am not able to agree with the proposition that
such an obligation extends so far as to compulsorily giving an
C oral hearing in every case where review is sought by a
condemned convict.
' the various safegu~rds
23. I have already explained
provided by the Constitution and the law of this country against
awarding death penalty. Barring the contingency contemplated
D under Article 134, the makers of th~ Constitution did not even
think it fit to provide an appeal to this Court even in 1;ases.of
death penalty. In cases other than which are brought before this
Court as of right under Article 134, this Court's jurisdiction is
discretionary. No doubt, such discretion is to be exercised on
E the basis of certain established principles of law. It is a matter
of record that this Court in almost every case of death penalty
undertakes the examination of the correctness of such decision.

24. Article 137 does not confer any right to seek review
of any judgment of this Court in any person. On the other hand,
F it only recognizes the authority of this Court to review its own
judgments. It is a settled position cif law that the Courts of limited
jurisdidion don't have any inherent power of review. Though this
Court is the apex constitutional court with plenary jurisdiction,
the makers of the Constitution thought it fit to expressly confer
G such a power on this Court as they were aware that if an error
creeps into the jlidgment of this Court, there is no way of
correcting it. Therefore, perhaps they did not want to leave
scope for any doubt regarding the jurisdiction of this Court to
review its judgments in appropriate cases. They also authorized
H
• MOHD. ARIF @ASHFAQ v, REGISTRAR, SUPREME 1051
COURT OF INDIA [J.CHELAMESWAR, J.]
this Court under Article 145(1 )(e)7 to make rules as tci the A
conditions subject to which a judgment of this Court could be
reviewed and also make rules regarding the procedure for such
·review. Both Articles 137 and 145 give this. Court the authority
to review its judgments subject to any law made by the
Parliament. B

25. As observed by this Court in Eswara /yer's case, 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 C
the demands of justice in a given case. Eswara /yer's case
clearly held that review applications in this Court form a class
where an or~I hearing could be eliminated without violating any
constitutional provision. Therefore, I regret my inability to agree
with the conclusion recorded by my learned brother Justice
Nariman that the need for an oral hearing flows from the D
mandate of Article 21.

26. In my opinion, in the absence of any obligation flowing
from Article 21 to grant an oral hearing, there is no need to
grant an oral hearing on any one of the grounds recorded by E
my learned brother for the following reasons :....

1. That review petitions are normally heard by the
same Bench which heard the appeal. Therefore, the
possibility of different judicial minds reaching
different conclusions on the same set of facts does
F
·not arise.

7. Article.145. Rules of Court, etc.- (1) Subject to the provisions of any law
made by Parliament, the Supreme Court may from time to time, with the G
approval of the President, make rules for regulaling generally the practice
and procedure of the Court including;
(e) rules as to the conditions subject to which any judgment pronounced or
order made by the Court may be reviewed and the procedure for such review
including the time within which applicalions to the Court for such review
are to be entered. H
1052 SUPREME COURT REPORTS (2014] 11 $.C.R.
•
A 2. The possibility of the ~remote chance of deviation" .
from the conclusion already reached i!J my view is
- though emotionally very appealing in the context
of the extinguishment of life - equally applicable to·
all cases of review..
B
27. Prior to the amendment of Order XL of the Supreme
Court Rules in 1978 (which was t~e subject matter.of challenge
in Eswara lyer's case) this Court granted oral hearings even
at the stage of review. It was by the amendment that the oral
C hearings were eliminated at the review stage. As explained by
Eswara lyer's case, such an amendment was necessitated
as a result of unwarranted "review baby" boom. This Court, in
exercise of its authority under Article 145 as a pa~ of the Court
management strategy, thought it fit to eliminate the oral hearings
at the review stage while preserving the discretion in the Bench
D considering a review application to grant an oral hearing in an
appropriate case. The Constitution Bench itself, while uphold.ing
the constitutionality of the amended rule of Order XL, observed;

"All that we mean to indicate is that the mode of 'hearing',
E whether it should be oral or written or both, whether it
should be full-length or rationed, must depend on myriad
factors and future developments. 'Judges of the Supreme
Court must be trusted in this regard and the Bar will
ordinarily be associate.d when decisions affecting
F processual justice are taken'." (para 37 page 696)

28. I do not see any reason to take a different view -
whether the "developments" subsequent to Eswara lyei's
case, either in law or practice of this Court, demand a
reconsideration of the rule, in my opinion, should be left to the
G Court's jurisdiction under Article 145.

Kalpana K. Tripathy Writ Petitions disposed of.