# • [2014] 11 $.C.R. 1009 MOHD. ARIF @ASHFAQ v. THE REGISTRAR, SUPREME COURT OF INDIA & ORS

- **Citation:** [2014] 11 S.C.R. 1009
- **Court:** Supreme Court of India
- **Decided:** 2014-09-02
- **Case number:** Writ Petition (Crl.} No. 77 of 2014
- **Bench:** R.M. Lodha, Jagdish Singh Khehar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2014-11-c-r-1009-mohd-arif-ashfaq-v-the-registrar-supreme-court-of-india-ors-29383
- **Pages:** 44

## Headnote

CHELAMESWAR, A.K. SIKRI AND R.F. NARIMAN, JJ.]
A
B
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
HELD:
MAJORITY OPINION:
Per R.F. Nariman, J. (for himself and Lodha. Khehar and
Sikri. JJ.l :
E
F
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
8 of a death sentence mandate that oral hearing be given
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
pet

## Text

_Characters 0–39,983 of 86,474. This is a partial read: ask again with offset=39983 for what follows._

•
[2014] 11 $.C.R. 1009
MOHD. ARIF @ASHFAQ
v.
THE REGISTRAR, SUPREME COURT OF INDIA & ORS.
(Writ Petition (Crl.) No. 77 of 2014 etc.)
SEPTEMBER 02, 2014
[R.M. LODHA, CJI, JAGDISH SINGH KHEHAR, J.
CHELAMESWAR, A.K. SIKRI AND R.F. NARIMAN, JJ.]
A
B
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
HELD:
MAJORITY OPINION:
Per R.F. Nariman, J. (for himself and Lodha. Khehar and
Sikri. JJ.l :
E
F
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
8 of a death sentence mandate that oral hearing be given
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.
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
F
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; 1035D-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] [1037C]
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; 1039A
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 o·
in a given case. [Para 25] [1051-CJ
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] [1051F
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.
c
D
E
F
G
H
. .
.
.
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 ..
Case Law Reference:
In the judgment of Nariman. J.:
· 1983 (2) SCR 582
cited
Para 2
, I
. 2014 (1) SCR 609
cited
Para 2
(2014) 4 sec 242
1 cited
Para 2
2006 (10) Suppl. SCR 662 ·.cited
. ..
Para 2.
2008 (11 ) SCR 93
cited
Para 2
.
'
2009 (9) SCR 90
cited
Para 2
(1965) 1 SCR.,933
' I cited
Para 10
(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
'
Para 43
1989 (1) SCR 509
I relie~ on
2008 (11) SCR 93
j relied on
Para 43
.
,
I . . -
•·
In the judgment of Chelameswar, J.: .
-
1950 SCR 88
; .._1
j
'
, Referred to
.
'
'
Para 2
•
•
MOHD. ARIF @ASHFAQ v. REGISTRAR, SUPREME 1015
COURT OF INDIA
AIR 1977 SC 2046
(1980) 4 sec 680
Referred to
Para 9
Referred to
Para 17
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.}
No. 77 of 2014.
WITH
Writ Petition (Crl) No. 137 of 2011, 52 of 2011, 39 of 2013,
108 and 117 of 2014.
A
B
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.
8
2. Leading the arguments on behalf of the petitioners, Shri
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
.E
by Bhagwati, J. in his dissent in Bachan Singh vs. State of
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 433A 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
0
was read out together with para 14 to show that Judges do
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:
"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
•
B
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.
)()(
)()(
)()(
19. This Court, as Sri Garg rightly emphasised, has
assigned special value to public hearing, and courts are
D
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
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
F
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
F
G
H
concern of the law to avoid judicial error should be
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
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
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
raised only ih the course of the debate at the Bar. But when
F
the whole case is before us we must surely deal
comprehensively with every aspect argued and not piecemeal 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."
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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:
F
"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."
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."
i
i..
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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
. 0
the same year in Maneka Gandhi v. Union of India, (1978) 2
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.
F
G
H
Kania, J. held:
·
'
"Four marked points of distinction between the clause in
the American Constitution and Article 21 of the
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
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)
.
•
•
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
c
D
E·
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
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
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
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.