Hear condemned man in open court: SC

Three-judge Bench should give a limited oral hearing

September 03, 2014 04:49 am | Updated November 29, 2021 01:15 pm IST - NEW DELHI

A five-judge Constitution Bench on Tuesday held that review of the death sentence should be heard in an open court under public glare and not within the four walls of “star chambers reminiscent of the Stuart dynasty that ruled England.”

The majority judgment declared that a three-judge Bench of the court should give a limited oral hearing to death row convicts, including those in TADA cases, in a judicial review even if the exercise was time-consuming and further strained an overburdened Supreme Court.

Writ pleas The judgment came on a batch of identical writ petitions filed by eight condemned convicts seeking open court hearing of their review petitions. These include three convicts in the 2000 Dharmapuri bus burning case, Pakistani national Mohammed Arif alias Ashfaq in the Red Fort attack case of 2000, 1993 Bombay serial blasts “mastermind” Yakub Memon and B.A. Umesh and Sunder, both convicted for multiple murders.

The Bench observed that workload was hardly a factor compared to giving an open court hearing to a condemned man on the last leg of his journey on the death row.

“Stress has been multiplied several fold since the year 1980 [the advent of judicial activism in Supreme Court]. Despite that, 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,” the 4:1 judgment authored by Justice Rohinton Nariman, for the Bench led by Chief Justice of India R.M. Lodha, held.

The majority judgment opens the door wide for death row convicts to move the Supreme Court for fresh public hearing of review petitions, including pending ones. Dismissed review petitions will also be re-opened if filed afresh within a month from Tuesday.

30-minute window Counsel for the convict will be given a 30-minute window to make his oral arguments. However, those whose curative petitions are already decided cannot seek re-hearing.

In his judgment, Justice Nariman disagreed with his fellow judge on the Bench, Justice J. Chelameswar, whose minority verdict said that there was no need to “compulsorily” give oral hearing to a condemned man in every case.

In answer, Justice Nariman compared Article 21 of the Constitution with the Magna Carta . He termed Article 21 as the “single most important fundamental right under the Constitution of India” and one which cannot be eclipsed even during Emergency. Justice Nariman added that even a “remote chance” that the death penalty would be overturned justified an oral hearing. He observed that a condemned man’s life cannot depend on an “inartistically drafted” review petition alone. It may not connect with the judge. “But oral submissions by a skilled advocate can bring home a point which may otherwise not be succinctly stated,” the judgment argued.

Krishna Iyer quoted In this context, Justice Nariman quoted Justice Krishna Iyer in P.N. Eswara Iyer and others versus Registrar, Supreme Court, case of 1980: “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.”

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