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With this decision, Supreme Court has ensured transparency, greater public participation and closer scrutiny. Media is also allowed to cover proceedings in an open court. Photo: Mint
With this decision, Supreme Court has ensured transparency, greater public participation and closer scrutiny. Media is also allowed to cover proceedings in an open court. Photo: Mint

Supreme Court reworks norms for death penalty cases

Three-judge bench will now hear appeals only in an open court; capital punishment to be awarded only in rarest of rare cases

New Delhi: The Supreme Court on Tuesday introduced radical changes to the rules governing the hearing of appeals in death sentence cases, effectively restricting the death sentence to the rarest of rare cases.

Not only did the five-judge constitution bench rule that in future all appeals would be heard by a three-judge bench, as opposed to the current practice of a two-judge bench, it also laid down that the hearings will take place in an open court, doing away with the current practice of hearings taking place in the judges’ chambers.

Effectively, the apex court has ensured transparency, greater public participation and closer scrutiny by expanding the bench. In addition, the media is allowed to cover proceedings in an open court.

The verdict delivered by the five-judge bench headed by Chief Justice R.M. Lodha was a majority one as there was a dissenting opinion by justice J. Chelameswar. It was ruling on a petition moved by five death row convicts, which was referred to the constitution bench in April.

The court’s decision to allow oral hearings in review cases is unprecedented. At the moment, a review is filed before the same bench that has given the verdict. Procedurally, a review petition is an in-chamber proceeding, where the judges peruse written submissions of the advocates and take the decision.

While conceding that the scope of review is very limited and the earlier ruling is likely to be upheld, the verdict says: “When it is a question of life and death of a person, even a remote chance of deviating from such a decision while exercising the review jurisdiction would justify oral hearing in a review petition."

“The power of the spoken word has to be given yet another opportunity even if the ultimate success rate is minimal," the apex court said.

The verdict partially revised an earlier judgement of a five-judge bench delivered in 1980 that had ruled that open hearings cannot take place in case of reviews. On Tuesday, the bench justified its actions by arguing that it was creating an exception under the fundamental Right to Life.

Welcoming the verdict, senior advocate Colin Gonsalves, said review petitions are often dismissed “without application of mind"—without open-court arguments, errors may go unnoticed.

Experts said a raft of decisions upholding the Right to Life and the recent stay on pending executions reveals a pro-life trend at the apex court.

Rahul Singh, a former professor at the National Law School of India University, Bangalore, said: “With all these cases, we are increasingly moving towards making death penalty criteria so stringent that it will be as good as not having capital punishment at all, though as long as this punishment continues on the statute books, it will be awarded. However, short of abolishing the death penalty, the Supreme Court seems to be effectively ensuring that it becomes a rare event."

Analysts also pointed out the new norms will not be applicable to all pending cases. In the normal course, a person is allowed to file a review on the verdict of the apex court; even if this review rejected, they are allowed a curative petition as the final recourse. The apex court’s order states that only those cases in which the curative petition option has not been exercised can avail of the new norms.

In the present context, this distinction would mean that one of the five petitioners, Pakistani national Mohammed Arif, an accused in the terrorist attack on Red Fort, will not be eligible for a review of his petition.

Neha Singhal, a research associate at the National Law University, Delhi, who has worked on the issue of death penalty, said “the judgment creates two classes of people: those whose review has been dismissed and those whose curative petition has been dismissed. The first category will get retrospective benefit of the decision and their review will be heard again, in an open court. However, the judgement is silent in case of people whose curative petition has been filed but not dismissed. My understanding is that in such cases, review may be re-filed and be heard in open court."

The judgement also acknowledges the scope for errors while awarding death sentences. “Different judicially trained minds can arrive at conclusions which, on the same facts, can be diametrically opposed to each other," the order said.

It goes on to note: “It needs to be emphasized that when on the same set of facts, one judicial mind can come to the conclusion that the circumstances do not warrant the death penalty, whereas another may feel it to be a fit case fully justifying the death penalty, we feel that 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 ‘reasonable procedure’."

Singh agreed: “It is very true—the sentencing seems to have been very arbitrary."

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