Years spent behind bars during prolonged judicial proceedings cannot be a ground for converting death sentence to life imprisonment, the Supreme Court today said while ruling that review plea of condemned prisoners must be given an open court hearing.
A five-judge Constitution bench, by a majority verdict of four to one, held that "limited" oral hearing for an outer limit of 30 minutes be granted in all death sentence cases.
"Delay in judicial proceedings during time taken in court proceedings cannot be taken into account to say that there is a delay which would convert a death sentence into one for life," the apex court said while dismissing the plea of Red Fort attack death convict Mohd Arif who is in jail for the last 13-and-a-half years.
While Chief Justice R M Lodha and justices J S Khehar, A K Sikri and Rohinton F Nariman favoured open court hearing of review petition in death sentence, Justice J Chelameswar gave a dissenting verdict.
"Death penalty is irreversible in nature. Once a death sentence is 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 take into account the two factors mentioned above. That being so, we feel that a limited oral hearing even at the review stage is mandated by Article 21 in all death sentence cases," Justice Nariman, who wrote majority verdict, said.
Amnesty Annual Reports, which was referred to the court, show that not more than 100 death sentences are awarded in any given year and it was further submitted that ultimately the number of death sentences awarded by the Supreme Court would be 60 per annum.
The apex court said an outer limit of 30 minutes be provided for oral hearing in such cases and also made it clear that a condemned convict, whose review plea has been dismissed and sentence is still to be executed, can approach the apex court for re-opening of his case.
"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 judgement. However, in those cases where even a curative petition is dismissed, it would not be proper to reopen such matters," it said.
Justice Chelameswar, in his dissenting verdict, said that there is no need to give an oral hearing on review plea of death convict as the earlier judgement had rightly held that it should be left to the discretion of the judges.
"Eswara Iyer’s case clearly held that review applications in this Court form a class where an oral hearing could be eliminated without violating any constitutional provision. Therefore, 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 mandate of Article 21," he said.
The majority verdict said "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, 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".
Turning down the plea that death cases be heard by five judge bench, the court, however, said that such cases must be heard by at least three Judges of the Supreme Court.
The apex court passed the order on a batch of petitions filed by six death convicts including Mohammed Arif and 1993 Mumbai serial blast convict Yakub Abdul Razak Memon pleading the court that their review pleas should have been decided in open court hearing.
Earlier, in most cases, review petitions were decided in judges' chambers and the parties were not allowed to be present.
Other death convicts who filed the petitions are C Muniappan, B A Umesh, Sundar and Sonu Sardar.
The apex court cannot change the law, that is Parliament's prerogative, but, short of that, it is trying to soften the rigours of a punishment that many societies have abolished. The entire doctrine of rarest of the rare has been crafted to reduce the number of convicts who will be hanged. Perhaps the mode by which the penalty is enforced could be changed to lethal injection.