TaxTMI 
TaxTMI 
2014 (9) TMI 1257
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.... Nanda, Deepali Dwivedi, Aayush Chandra, Advs. for B.V. Balramdas, Adv., C.D. Singh, Anshuman Shrivastava, Sakshi Kakkar, M. Yogesh Kanna and Hemantika Wahi, Advs. JUDGMENT Jasti Chelameswar, J. 1. I have had the privilege of reading the draft judgment prepared by my esteemed brother Rohinton Fali Nariman, J. With utmost respect, I am unable to agree with the view taken by him that a review petition filed by a convict whose death penalty is affirmed by this Court is required to be heard in open Court but cannot be decided by circulation. The background facts and the submissions are elaborately mentioned by my learned brother. I do not propose to repeat them. 2. Extinguishment of life of a subject by the State as a punishment for an offence is still sanctioned by law in this country. Article 21 of the Constitution itself recognizes the authority of the State to deprive a person of his life. No doubt, such authority is circumscribed by many constitutional limitations. Article 21 mandates that a person cannot be deprived of his life except according to procedure established by law. Whether Article 21 is the sole repository of the constitutional guarantee against the depriv....
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....y the High Court and the Court of Sessions are the courts authorized to award punishment of death. The other subordinate courts such as Chief Judicial Magistrates and Magistrates are expressly debarred to award death penalty. Sections 28 [28. Sentences which High Courts and Sessions Judges may pass: (1) A High Court may pass any sentence authorised by law. (2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court (3) An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years] and 29 [29. Sentences which Magistrates may pass (1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years (2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand r....
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....of Session passing a sentence of death shall submit the proceedings to the High Court and the sentence so imposed by the Sessions Court shall not be executed unless the High Court confirms the punishment awarded. 8. Section 367 of the Code of Criminal Procedure authorises the High Court to make a further enquiry into the matter or take additional evidence. Under Section 368 of the Code of Criminal Procedure, the High Court is precluded from confirming the sentence until the period allowed for preferring an appeal (by the accused) has expired or if an appeal is already presented within the period of limitation prescribed under law, until such appeal is disposed of. In other words, before confirming the award of death sentence, the High Court is required to examine the correctness of the finding of the guilt of the accused recorded by the Sessions Court, if the accused chooses to challenge the correctness of the finding of the guilt by the Sessions Court. In theory, the role of the High Court in confirming or declining to confirm the sentence of death awarded by the Sessions Court is limited to the examination of the correctness or the appropriateness of the sentence. The correctn....
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....ed him to death; or (b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or (c) certifies Under Article 134A that the case is a fit one for appeal to the Supreme Court: Provided that an appeal Under Sub-clause (c) shall lie subject to such provisions as may be made in that behalf Under Clause (1) of Article 145 and to such conditions as the High Court may establish or require. (2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.] a right of appeal to this Court is created in criminal cases where the High Court on appeal reverses an order of acquittal of an accused person recorded by the Sessions Court and sentences him to death or where the High Court withdraws for trial before itself any case pending before a court subordinate to it and convicts the accused person and awards death sentence to....
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....ave been dealt with as it existed during the course of hearing of these matters. w.e.f. 19th August 2014, the Supreme Court Rules, 2013 have come into force.] Order XL of the said Rules occurring in Part VIII deals with the subject of review. Rule 1 thereof stipulates that no application for review in a criminal proceeding be entertained by this Court except on the ground of an error apparent on the face of the record. Rule 1. The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule I of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record. 16. Rule 3 stipulates that an application for review shall be disposed of by circulation without any oral arguments. Rule 3. Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the Petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicabl....
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....ancing of oral advocacy and written presentation is as much a matter of principle as of pragmatism. The compulsions of realities, without compromise on basics, offer the sound solution in a given situation. There are no absolutes in a universe of relativity. The pressure of the case-load on the Judges' limited time, the serious responsibility to bestow the best thought on the great issues of the country projected on the court's agenda, the deep study and large research which must lend wisdom to the pronouncements of the Supreme Court which enjoy awesome finality and the unconscionable backlog of chronic litigation which converts the expensive end-product through sheer protraction into sour injustice -all these emphasise the urgency of rationalising and streamlining court management with a view to saving court time for the most number of cases with the least sacrifice of quality and turnover. If, without much injury, a certain class of cases can be disposed of without oral hearing, there is no good reason for not making such an experiment. If, on a close perusal of the paper-book, the Judges find that there is no merit or stateable case, there is no special virtue in sanctif....
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....give such an opportunity takes within its sweep, that an oral hearing be given in a review petition, as a part of a "reasonable procedure" flowing from the mandate of Article 21. (iii) that even a remote chance of deviating from the original decision would justify an oral hearing in a review petition. 21. I agree with my learned brother that death penalty results in deprivation of the most fundamental liberty guaranteed by the Constitution resulting in an irreversible situation. Therefore, such deprivation should be only in accordance with the law (both substantive and procedural) which is consistent with the constitutional guarantee Under Articles 14 and 21 etc. 22. But, I am not able to agree with the proposition that such an obligation extends so far as to compulsorily giving an oral hearing in every case where review is sought by a condemned convict. 23. I have already explained the various safeguards provided by the Constitution and the law of this country against awarding death penalty. Barring the contingency contemplated Under Article 134, the makers of the Constitution did not even think it fit to provide an appeal to this Court even in cases of death pen....
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....d 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. 26. In my opinion, in the absence of any obligation flowing from Article 21 to grant an oral hearing, there is no need to grant an oral hearing on any one of the grounds recorded by my learned brother for the following reasons - 1. That review petitions are normally heard by the same Bench which heard the appeal. Therefore, the possibility of different judicial minds reaching different conclusions on the same set of facts does not arise. 2. The possibility of the "remote chance of deviation" from the conclusion already reached in my view is-though emotionally very appealing in the context of the extinguishment of life-equally applicable to all cases of review. 27. Prior to the amendment of Order XL of the Supreme Court Rules in 1978 (which was the subject matter of challenge in Eswara Iyer's case) this Court granted oral hearings even at the stage of review. It was by the amendment that the oral hearings were elim....
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.... of the core right to existence itself, which, if deprived, renders all liberty meaningless. This right is available as long as life lasts. [See: Sher Singh v. State of Punjab (1983) 2 SCC 345 at para 16; Shatrughan Chauhan v. Union of India (2014) 3 SCC 1 at para 35; V. Sriharan v. Union of India (2014) 4 SCC 242 at para 19-21. According to the learned Counsel, Article 134 of the Constitution allows an automatic right of appeal to the Supreme Court in all death sentence cases. The death penalty is irreversible, as observed by Bhagwati, J. in his dissent in Bachan Singh v. State of Punjab 1982 (3) SCC 24 at para 26. Further, Section 354(3) of the Code of Criminal Procedure recognizes the fact that in death sentence cases special reasons have to be recorded, and case law has further embellished this to mean that it can be granted only in the rarest of rare cases. Death sentence cases are given priority of hearing over other matters by the Supreme Court. The learned senior Counsel further went on to add that the award of death sentence at present depends upon the vagaries of the judicial mind as highlighted in several Articles and by Bhagwati, J. in his dissent in Bachan Singh (at pa....
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....s a sentence of life is alternative to a sentence of death, the Petitioner having already undergone a sentence of life imprisonment could not be given the death penalty in addition. He referred to Sections 415, 418, 426 to 428 and 433-A of the Code of Criminal Procedure; Section 53 and 57 of the Indian Penal Code and Article 20(1) of the Constitution to bolster this argument. 35. Shri Jaspal Singh, learned senior Advocate appearing in Writ Petition (Crl.) No. 108/2014 also supported Shri Venugopal in demanding a review in open Court and added one more reason for doing so. In all TADA cases, there is only one appeal before the Supreme Court and since the judicial mind is applied only twice, a review being the third bite at the cherry should also be in open Court. 36. In Writ Petition (Crl.) No. 39/2013, it was pointed out by learned Counsel appearing for the Petitioner that the Supreme Court can limit time for oral arguments under Order XLVII Rule 7 of its Rules, and a judgment from South Africa was pointed out which referred to the Indian law as well as the law on death penalties from various other nations. Similar arguments were advanced in Writ Petition (Crl.) No. 108 of 20....
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....e an already severely strained judicial system. Para 18 was pointed out to us showing that in the U.S. and in the U.K. written arguments are often substituted for oral arguments. In para 22, it was also pointed out that the working of the court would be disrupted if the two Judges who heard the appeal were to sit together again after their bench broke to hear a review petition. Interestingly, the learned Judge refers in para 19 to the justice of the situation including or excluding oral hearing and in para 25 to which class of cases should be excluded from oral hearing. It was also pointed out to us that in paras 34 and 35, the learned Judge enlarged the criminal review jurisdiction to error committed which is apparent from the record-and that the word "record" should include within it all cases where some new material which was not adverted to earlier now be taken into account. The learned Solicitor General also took us through various other judgments in which this statement of the law has since been followed. [See: Devender Pal Singh v. State, NCT of Delhi and Anr. (2003) 2 SCC 501 at page 508, 509 and Ram Deo Chauhan v. Bani Kanta Das (2010) 14 SCC 209 at para 35]. 39. In rej....
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....9. This Court, as Sri Garg rightly emphasised, has assigned special value to public hearing, and courts are not caves nor cloisters but shrines of justice accessible for public prayer to all the people. Rulings need not be cited for this basic proposition. But every judicial exercise need not be televised on the nation's network. The right to be heard is of the essence but hearing does not mean more than fair opportunity to present one's point on a dispute, followed by a fair consideration thereof by fair minded judges. Let us not romanticise this process nor stretch it to snap it. Presentation can be written or oral, depending on the justice of the situation. Where oral persuasiveness is necessary it is unfair to exclude it and, therefore, arbitrary too. But where oral presentation is not that essential, its exclusion is not obnoxious. What is crucial is the guarantee of the application of an instructed, intelligent, impartial and open mind to the points presented. A blank judge wearied by oral aggression is prone to slumber while an alert mind probing the 'papered' argument may land on vital aspects. To swear by orality or to swear at manuscript advocacy is as wro....
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.... becomes necessitous. 35. The purpose is plain, the language is elastic and interpretation of a necessary power must naturally be expansive. The substantive power is derived from Article 137 and is as wide for criminal as for civil proceedings. Even the difference in phraseology in the rule (Order 40, Rule 2) must, therefore, be read to encompass the same area and not to engraft an artificial divergence productive of anomaly. If the expression 'record' is read to mean, in its semantic sweep, any material even later brought on record, with the leave of the court, it will embrace subsequent events, new light and other grounds which we find in Order 47, Rule 1, Code of Civil Procedure. We see no insuperable difficulty in equating the area in civil and criminal proceedings when review power is invoked from the same source. 36. True, the review power vis-à-vis criminal matters was raised only in the course of the debate at the Bar. But when the whole case is before us we must surely deal comprehensively with every aspect argued and not piece-meal with truncated parts. That will be avoidance of our obligation. We have, therefore, cleared the ground as the....
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....a Mills v. Union of India 1981 (1) SCR 206 at 263), and being one of two articles which cannot be eclipsed during an emergency (Article 359 as amended by the Constitution 44th Amendment). 47. It is to be noted that Article 21 as it originally stood in the Draft Constitution was as follows (Clause 15):- No person shall be deprived of his life or liberty without due process of law. 48. The Drafting Committee introduced two changes in the Clause-(i) They qualified the word 'liberty' by the word 'personal' in order to preclude a wide interpretation of the word so as not to include the freedoms which had already been dealt with in Article 13 (corresponding to Article 19 of the Constitution). (ii) They also substituted the words "due process of law" by the words "procedure established by law", following the Japanese Constitution (Article XXXI), because they were more 'specific'. 49. Over the question whether the expression 'due process of law' should be restored in place of the words 'procedure established by law', there was a sharp difference of opinion in the Constituent Assembly, even amongst the members of the Drafting Committ....
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....ssion "due process of law" is not used deliberately, (4) The word "established" is used and is limited to "Procedure" in our Article 21. (at page 109) In the picturesque language of Das, J. it was stated: It is said that if this strictly technical interpretation is put upon Article 21 then it will not constitute a fundamental right at all and need not have been placed in the chapter on Fundamental Rights, for every person's life and personal liberty will be at the mercy of the Legislature which, by providing some sort of a procedure and complying with the few requirements of Article 22, may, at any time, deprive a person of his life and liberty at its pleasure and whim.... Subject to the limitations, I have mentioned which are certainly justiciable, our Constitution has accepted the supremacy of the legislative authority and, that being so, we must be prepared to face occasional vagaries of that body and to put up with enactments of the nature of the atrocious English statute to which learned Counsel for the Petitioner has repeatedly referred, namely, that the Bishop of Rochester's cook be boiled to death. If Parliament may take away life by providing for hangin....
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....an's view and held that various fundamental rights contained in different articles are not mutually exclusive: We are therefore unable to hold that the challenge to the validity of the provision for acquisition is liable to be tested only on the ground of non-compliance with Article 31(2). Article 31(2) requires that property must be acquired for a public purpose and that it must be acquired under a law with characteristics set out in that Article. Formal compliance with the conditions Under Article 31(2) is not sufficient to negative the protection of the guarantee of the right to property. Acquisition must be under the authority of a law and the expression "law" means a law which is within the competence of the Legislature, and does not impair the guarantee of the rights in Part III. We are unable, therefore, to agree that Articles 19(1)(f) and 31(2) are mutually exclusive. (para 53) 55. The stage was now set for the judgment in Maneka Gandhi. Several judgments were delivered, and the upshot of all of them was that Article 21 was to be read along with other fundamental rights, and so read not only has the procedure established by law to be just, fair and reasonabl....
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....enugopal that death sentence cases are a distinct category of cases altogether. Quite apart from Article 134 of the Constitution granting an automatic right of appeal to the Supreme Court in all death sentence cases, and apart from death sentence being granted only in the rarest of rare cases, two factors have impressed us. The first is the irreversibility of a death penalty. And the second is the fact that different judicially trained minds can arrive at conclusions which, on the same facts, can be diametrically opposed to each other. Adverting first to the second factor mentioned above, it is well known that the basic principle behind returning the verdict of death sentence is that it has to be awarded in the rarest of rare cases. There may be aggravating as well as mitigating circumstances which are to be examined by the Court. At the same time, it is not possible to lay down the principles to determine as to which case would fall in the category of rarest of rare cases, justifying the death sentence. It is not even easy to mention precisely the parameters or aggravating/mitigating circumstances which should be kept in mind while arriving at such a question. Though attempts are ....
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....or may not be awarded in any given case. Experience based on judicial decisions touching upon this aspect amply demonstrate such a divergent approach being taken. Though, it is not necessary to dwell upon this aspect elaborately, at the same time, it needs to be emphasised 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". 59. We are of the opinion that "reasonable procedure" would encompass oral hearing of review petitions arising out of death penalties. The statement of Justice Holmes, that the life of law is not logic; it is experience, aptly applies here. 60. The first factor mentioned above, in support of our conclusion, is more fundamental than the second one. 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 the....
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....y for extinguishment of oral argument altogether. 63. No doubt, the Court thereafter reminded us that the time has come for proper evaluation of oral argument at the review stage. However, when it comes to death penalty cases, we feel that the power of the spoken word has to be given yet another opportunity even if the ultimate success rate is minimal. 64. If a pyramidical structure is to be imagined, with life on top, personal liberty (and all the rights it encompasses under the new doctrine) immediately below it and other fundamental rights below personal liberty it is obvious that this judgment will apply only to death sentence cases. In most other cases, the factors mentioned by Krishna Iyer, J. in particular the Supreme Court's overcrowded docket, and the fact that a full oral hearing has preceded judgment of a criminal appeal on merits, may tilt the balance the other way. 65. It is also important to advert to Shri Luthra, learned Amicus Curiae's submission. Review Petitions are inartistically drafted. And oral submissions by a skilled advocate can bring home a point which may otherwise not be succinctly stated, given the enlarged scope of review in criminal m....
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....t what is pointed out by the learned Counsel for the Petitioner in Writ Petition No. 39/2013 and provide for an outer limit of 30 minutes in all such cases. When we come to P.N. Eswara Iyer's case which was heavily relied upon by the learned Solicitor General, we find that the reason for upholding the newly introduced Order XL Rule 3 in the Supreme Court Rules is basically because of severe stress of the Supreme Court workload. We may add that that stress has been multiplied several fold since the year 1980. Despite that, as we have held above, 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. Interestingly, in P.N. Eswara Iyer's case itself, two interesting observations are to be found. In para 19, Krishna Iyer, J. says that "...presentation can be written or oral, depending upon the justice of the situation." And again in para 25, the learned Judge said that "...the problem really is to find out whic....