On 2 September 2014, a Constitution Bench of the Supreme Court had deprived a death-row prisoner of the opportunity of open hearing of his review petition by three Judges of the Supreme Court, even while extending this right to other death-row convicts, whose earlier review petitions might have been dismissed by Judges in chambers.
The reason which the bench offered then was that the prisoner, whose review as well as curative petitions were dismissed earlier, was not eligible to be considered for a second hearing of his review petition in the open court. The opportunity of open hearing of a review petition in the open court by three Judges (rather than by just two) means much for a death-row convict, who clings to whatever hope that a legal system would offer till his last breath.
The 2014 verdict appeared unjust because it deprived the opportunity of open hearing of review petition of the convict only on the ground that his curative petition was dismissed, although the same verdict upheld his challenge to the Rule which deprived such a hearing. The prisoner, Mohd Arif is a Pakistan national, and had been convicted and sentenced to death for conspiracy in the Delhi Redfort attack case. The Supreme Court’s two-Judge bench had confirmed his death sentence in 2011. The bench comprised of Justice V Sirpurkar and Justice T S Thakur, presently the CJI.
The Supreme Court subsequently dismissed his review and curative petitions. In 2014, he challenged constitutionality of the Supreme Court Order XL, Rule 3, according to which, review petitions were heard in circulation in the chambers of the Judges.
He contended that the Rule denied the death-row prisoners an opportunity of open hearing of their review petitions, and therefore, was violative of Article 21. The Constitution bench upheld his contention through a majority judgment (Justice J Chelameswar was the sole dissenter), but found him ineligible for the remedy which he won for other death-row convicts solely on the ground that he had also exhausted the curative remedy.
The majority judgment then was authored by Justice Rohinton Nariman. On 19 January, another Constitution bench corrected its error, by accepting his petition seeking a review of the 2014 verdict. This bench comprised of all the four Judges who were part of the 2014 bench, and as Justice RM Lodha who had presided over that bench had retired, CJI Thakur, who incidentally confirmed his death sentence in 2011, was the fifth Judge to hear and decide his 2015 review petition. In the order issued today, the Court accepted the contention that dismissal of the curative petition should not have deprived the opportunity of open hearing of the review petition of the death-row convict. As in the case of other death-row convicts, Arif will now get one month time to get his review petition reopened, and get it listed for hearing in an open court by three Judges of the Supreme Court.
He will also get another opportunity of filing a second curative petition, in case the three-Judge bench dismisses his second review petition. The 2014 bench had made it clear that the right of a limited oral hearing in review petitions where death sentence was given, would be applicable only in pending review petitions and such petitions filed after the judgment.
The bench extended the remedy to cases where a review petition was already dismissed but the death sentence was not executed. In such cases, the petitioners could apply for the reopening of their review petition within one month from the date of that judgment, it was held by the bench. The bench added without justification: “However, in those cases where even a curative petition is dismissed, it would not be proper to reopen such matters”.
Today’s bench has now corrected this erroneous addition. Arguing for the petitioner, Senior Advocate R Basant stated that the case had come to him through the Centre on the Death Penalty at National Law University, Delhi. He said the Advocate-on-Record in the case had approached the Centre on the Death Penalty expressing his inability to find a Senior Advocate for the oral hearing. When the Centre on the Death Penalty briefed him on the matter, he submitted that he felt that the case raised issues that deserved the attention of the Bench. It was also submitted to the court that the Centre on the Death Penalty had supplied him with research that Mohd Arif would be the only person amongst current death row prisoners in India who would be adversely affected by the exception carved out in the 2014 judgment.