It may appear to be a mere question of procedure, but by mandating an oral hearing the Supreme Court has imparted greater substance to the disposal of review petitions of those sentenced to death. With a finesse that has come to be the hallmark of the Court in dealing with the issue of >death penalty in recent years, a five-Judge Constitution Bench has carved out a significant exception to the general rule that review petitions need not be heard in open court, but instead may be disposed of by circulation among the judges. Faced with an earlier Constitution Bench verdict upholding the rule, Justice Rohinton Fali Nariman, writing on behalf of the majority of four judges, has adopted the only mode of reasoning by which the Bench could have allowed the prayer for an oral hearing: by making >open court hearing a constitutional requirement under Article 21 and anchoring the rule on the irreversibility of carrying out the death sentence. Secondly, the majority has concluded that oral hearing is an integral part of ‘reasonable procedure’, by considering the possibility of two judicial minds coming to diametrically opposite conclusions on the same facts and circumstances as to whether the death penalty would be warranted. The scope for >reviewing a decision that has attained judicial finality is indeed narrow, and is confined to the ground of error apparent on the face of the record. However, even the remotest chance of altering it is enough to justify an oral hearing.
Oral hearing in >review matters was dispensed with in the light of the docket explosion and a ‘baby boom’ in review petitions. Normally, given that a full trial and hearing at two appellate levels precede the resort to review jurisdiction, denying oral hearing at that stage may not violate the objective of public justice or reduce disposal to the outcome of a ‘secret conclave’. However, death sentences impinge on the right to life, which is at the apex of a rights pyramid in which personal liberty and other fundamental rights come immediately below. While the Court did not concede the plea that >all cases attracting the death sentence be heard by a Bench of five judges, it has agreed that >review petitions are often “inartistically drafted”, and disposing them of solely based on written grounds may not meet the ends of justice. It has quoted Justice V.R. Krishna Iyer with approval that “the power of the Socratic process and the instant clarity of the Bar-Bench dialogue are too precious to be parted with.” After a series of judgments expanding the Court’s clemency jurisdiction, the verdict in favour of a limited 30-minute oral hearing before a Bench of three judges will significantly enhance the value of due process in a country that, unfortunately, still retains the death penalty.