Review - Art. 145 (1) & (3) of Constitution - ORAL HEARING at Review of judgement or order - Constitution Bench held that We make it clear that the law laid down in this judgment, viz., the right of a limited oral hearing in review petitions where death sentence is given, shall be applicable only in pending review petitions and such petitions filed in future. It will also apply where a review petition is already dismissed but the death sentence is not executed so far. In such cases, the petitioners can apply for the reopening of their review petition within one month from the date of this judgment. However, in those cases where even a curative petition is dismissed, it would not be proper to reopen such matters. All the writ petitions are disposed of accordingly.= WRIT PETITION (CRIMINAL) NO.77 OF 2014 Mohd. Arif @ Ashfaq … Petitioner Versus The Registrar, Supreme Court of India & Others … Respondents = 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41867

  Review  - Art. 145 (1) & (3) of Constitution - ORAL HEARING at  Review of judgement or order - Constitution Bench held that We make it clear that the law laid down in this  judgment,  viz.,  the right of a limited oral hearing in review petitions where death sentence  is given, shall be  applicable  only  in  pending  review  petitions  and  such petitions filed in future.  It will also apply where a  review  petition  is already dismissed but the death sentence is not executed so  far.   In  such cases, the petitioners can apply for the reopening of their review  petition within one month from the date of this judgment.  However,  in  those  cases where even a curative petition is dismissed,  it  would  not  be  proper  to reopen such matters. All the writ petitions are disposed of accordingly.=

 Article 145 : Rules of Court, etc.— (1)  Subject to the  provisions  of  any
law made by Parliament, the Supreme Court may from time to  time,  with  the
approval of the President, make rules for regulating generally the  practice
and procedure of the Court including;

                   *****       *****                 *****

(e)   Rules as to the conditions subject to which  any  judgment  pronounced
or order made by the Court may  be  reviewed  and  the  procedure  for  such
review including the time within which applications to the  Court  for  such
review are to be entered;

                   *****            *****            *****

15.   In exercise of such power, this Court made Rules from  time  to  time.
The Rules in vogue are called the Supreme Court Rules, 1966[6].  
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  practicable   be
circulated to the same Judge or Bench of Judges that delivered the  judgment
or order sought to be reviewed.

Rule 3 as it exists today was added on 9th August,  1978  with  effect  from
19th August, 1978.=

We make it clear that the law laid down in this  judgment,  viz.,  the
right of a limited oral hearing in review petitions where death sentence  is
given, shall be  applicable  only  in  pending  review  petitions  and  such
petitions filed in future.
It will also apply where a  review  petition  is
already dismissed but the death sentence is not executed so  far.   In  such
cases, the petitioners can apply for the reopening of their review  petition
within one month from the date of this judgment.
However,  in  those  cases
where even a curative petition is dismissed,  it  would  not  be  proper  to
reopen such matters.
47.   All the writ petitions are disposed of accordingly.

2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41867

CHIEF JUSTICE, JAGDISH SINGH KHEHAR, J. CHELAMESWAR, A.K. SIKRI, ROHINTON FALI NARIMAN
                                                              Reportable


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL ORIGINAL JURISDICTION

                   WRIT PETITION (CRIMINAL) NO.77 OF 2014

Mohd. Arif @ Ashfaq                          …     Petitioner

Versus

The Registrar,
Supreme Court of India & Others         …    Respondents


                                    WITH

                   WRIT PETITION (CRIMINAL) NO.137 OF 2010

C. Muniappan & Others                   …    Petitioners

Versus

The Registrar,
Supreme Court of India                       …     Respondent


                                    WITH

                   WRIT PETITION (CRIMINAL) NO.52 OF 2011

B.A. Umesh                              …    Petitioner

Versus

Registrar,
Supreme Court of India                  …    Respondent

                                    WITH

                   WRIT PETITION (CRIMINAL) NO.39 OF 2013

Sundar @ Sundarrajan                    …    Petitioner

Versus

State by Inspector of Police & Others        …     Respondents


                                    WITH

                   WRIT PETITION (CRIMINAL) NO.108 OF 2014

Yakub Abdul Razak Memon                 …    Petitioner

Versus

Registrar,
Supreme Court of India & Others         …    Respondents


                                     AND

                   WRIT PETITION (CRIMINAL) NO.117 OF 2014

Sonu Sardar                             …    Petitioner

Versus

Union of India & Others                      …     Respondents






                               J U D G M E N T



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 deprivation of life and whether it is sufficient for  the  State
to merely prescribe a procedure for the deprivation of life  by  a  law,  or
whether such a law is required to comply with certain  other  constitutional
requirements are questions which have been the subject matter of  debate  by
this Court in various decisions starting  from  A.K.  Gopalan  v.  State  of
Madras, AIR 1950 SC 27.   The history of  such  debate  and  the  historical
background in which such constitutional protections are felt necessary  have
been very elaborately discussed by my learned  brother.    Therefore,  I  do
not propose to deal with the said aspect of the matter.

3.    Section 53[1] of the Indian Penal Code, 1860 (hereinafter referred  to
as “IPC”) prescribes various  punishments  to  which  offenders  are  liable
under the provisions of the  IPC.   Death  is  one  of  the  punishments  so
prescribed. Provisions of  the  IPC  prescribe  death  penalty  for  various
offences as one of the alternative punishments for these  offences[2].   For
example,  Section  302  prescribes  death  or  imprisonment  for   life   as
alternative punishments  for  a  person  who  commits  murder.    Similarly,
Section 121 prescribes death penalty as  one  of  the  alternatives  for  an
offence of waging or attempting  to  wage  or  abetting  to  waging  of  war
against the Government of India.

4.    Apart from the Penal Code, some other special enactments  also  create
offences for which death penalty is  one  of  the  punishments.   Unless,  a
special procedure is prescribed by such special law, all persons accused  of
offences are tried in accordance with the  procedure  prescribed  under  the
Code of Criminal Procedure, 1973 (hereinafter referred to  as  “the  CrPC”).
Under the scheme of the CrPC, only 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[3]  and  29[4]  of
the CrPC prescribe the punishment which the various courts in the  hierarchy
of the criminal justice administration system can pass.

5.    Some special enactments like the Terrorist and  Disruptive  Activities
(Prevention) Act, 1987, Narcotic  Drugs  and  Psychotropic  Substances  Act,
1985,  the  Unlawful  Activities  Prevention  Act,  1967  etc.  also  create
offences for which death penalty  is  one  of  the  alternative  punishments
prescribed.   Though some of the offences  are  triable  by  special  courts
constituted under these Acts, generally the CrPC is made applicable  to  the
proceedings before the special courts and such special courts are  generally
manned by persons who are either Sessions Judges or Addl. Sessions Judges.

6.    Legislature, as a matter of policy, entrusted  the  trial  of  serious
offences for which death penalty  is  one  of  the  possible  penalties,  to
relatively more experienced members of the subordinate judiciary.

7.    Even though Sessions Courts are  authorized  to  award  punishment  of
death in an appropriate  case,  the  authority  of  the  Sessions  Court  is
further subjected to two limitations:-
Under sub-section (3) of Section 354 of the CrPC, the judgment by which  the
punishment of death is awarded, is required  to  give  special  reasons  for
such sentence .
354. Language and contents of judgment.— (1) Except as  otherwise  expressly
provided by this Code, every judgment referred to in section 353,—

    *********          *******           ********              **********

(3) When the conviction is for an offence punishable with death or,  in  the
alternative, with imprisonment for  life  or  imprisonment  for  a  term  of
years, the judgment shall state the reasons for the sentence  awarded,  and,
in the case of sentence of death, the special reasons for such sentence.

            *********** *********  ************     *************

The second limitation is contained in chapter XXVIII of the CrPC.    Section
366(1) thereof mandates that a Court 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 CrPC authorises the High Court to  make  a  further
enquiry into the matter or take additional evidence.  Under Section  368  of
the CrPC, 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
correctness and legality of the finding of guilt recorded  by  the  Sessions
Court, is required to be examined in the appeal, if preferred  against  such
finding by the accused.  Hence, the requirement  under  Section  368  is  to
await the decision in the  appeal  preferred  by  the  accused  against  the
finding of guilt.

9.    However, in practice when a reference is made under Section  366,  the
High Court invariably examines the correctness of the finding of  the  guilt
recorded by the Sessions Court. In fact such a duty is mandated in  Subbaiah
Ambalam v. State of Tamil Nadu, AIR 1977 SC 2046–
”It is well settled that in a Reference under S.374 of the Code of  Criminal
Procedure for confirming death sentence, the High Court has to consider  the
evidence afresh and to arrive at its independent finding with regard to  the
guilt of the accused.”


and in Surjit Singh & Others v. The State of Punjab, Criminal  Appeal  No.77
of 1968 decided by this Court on 15th October, 1968–
“It is clear from a perusal of these provisions that on  a  reference  under
s.374, Criminal Procedure Code, the entire case is before  the  High  Court.
In hearing such a reference the High Court  has  to  satisfy  itself  as  to
whether a case beyond a reasonable doubt  has  been  made  out  against  the
accused persons for the infliction  of  the  penalty  of  death.   In  other
words, in hearing the reference, it  is  the  duty  of  the  High  Court  to
reappraise  and  to  reassess  the  entire  evidence  and  to  come  to   an
independent conclusion as to the guilt or innocence of each of  the  accused
persons mentioned in the reference.”


10.   Section 369 CrPC further stipulates that  every  case  referred  under
Section 366 to the High Court shall be heard and decided  by  at  least  two
judges of the High Court, if  that  High  Court  consists  of  two  or  more
judges.

11.   In a case where the penalty of death is confirmed by  the  High  Court
in  accordance  with  the  CrPC,  the  decision  is  final  except  for  two
categories of cases.   Under Article 134[5],  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  such  an  accused
person.   I may also state that apart from such a  constitutional  right  of
appeal, as a matter of practice, this Court has been granting special  leave
under Article 136 in almost, as a matter  of  course,  every  case  where  a
penalty of death is awarded.

12.   In this Court, appeals, whether civil or criminal,  have  always  been
heard by at least two judges.

13.   The authority of the courts to examine  and  adjudicate  the  disputes
between the sovereign and its subjects and subjects inter  se  is  conferred
by law, be it the superior Law of Constitution  or  the  ordinary  statutory
law.   Such jurisdiction can be either original or  appellate.    A  court’s
jurisdiction to review its own earlier judgment  is  normally  conferred  by
law.  The jurisdiction  of  this  Court  to  review  its  own  judgments  is
expressly conferred under Article 137 of the Constitution.
137.  Review of judgments or orders by the Supreme Court:-  Subject  to  the
provisions of any law made by Parliament or any  rules  made  under  Article
145, the Supreme Court shall have power to review  any  judgment  pronounced
or order made by it.

14.   The question on hand  is  as  to  the  procedure  to  be  followed  in
exercising such jurisdiction.  Article 145 of  the  Constitution  authorizes
the making of rules by this Court regarding the practice  and  procedure  of
the court, of course such authority of this Court is  made  subject  to  the
provisions of any law made  by  Parliament.    Article  145(1)(e)  expressly
authorizes this Court to make rules as to the conditions subject to which  a
judgment or order made by this Court be reviewed and the procedure for  such
review.
Article 145 : Rules of Court, etc.— (1)  Subject to the  provisions  of  any
law made by Parliament, the Supreme Court may from time to  time,  with  the
approval of the President, make rules for regulating generally the  practice
and procedure of the Court including;

                   *****       *****                 *****

(e)   Rules as to the conditions subject to which  any  judgment  pronounced
or order made by the Court may  be  reviewed  and  the  procedure  for  such
review including the time within which applications to the  Court  for  such
review are to be entered;

                   *****            *****            *****

15.   In exercise of such power, this Court made Rules from  time  to  time.
The Rules in vogue are called the Supreme Court Rules, 1966[6].    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  practicable   be
circulated to the same Judge or Bench of Judges that delivered the  judgment
or order sought to be reviewed.

Rule 3 as it exists today was added on 9th August,  1978  with  effect  from
19th August, 1978.

17.   The constitutionality of the said rule  was  promptly  challenged  and
repelled by a Constitution Bench of this Court in P.N. Eswara Iyer &  Others
v. Registrar, Supreme Court of India, (1980) 4 SCC 680.

18.   This Court took note  of  the  fact  that  in  a  departure  from  the
existing  system,  the  new  rules  eliminate  oral  hearing  in  a   review
application and mandate that a review application shall be  disposed  of  by
circulation.  The Court also noticed that even the new Rules do not  totally
eliminate the possibility of an oral hearing, the  discretion  is  preserved
in the Court to grant an oral hearing in  an  appropriate  case.  The  Court
negated the submission that “the scuttling of  oral  presentation  and  open
hearing is subversive of the  basic  creed  that  public  justice  shall  be
rendered from the public seat, not in secret conclave …..”

19.   Such a conclusion is reached by the Court on the ground that a  review
is not the original proceeding  in  this  Court.    It  is  preceded  by  an
“antecedent judicial hearing”, therefore, such a second  consideration  need
not  be  “plenary”.  This  Court  categorically  recorded,   rejecting   the
challenge that the rule of audi alteram partem demands  a  hearing  in  open
court;
“19…..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
romanticize this process nor stretch it to snap it.    Presentation  can  be
written or oral, depending on the justice of the situation…..”

It further held;

“20.  …..Granting basic bona fides in the judges of the highest court it  is
impossible to argue that partial foreclosure of oral arguments in  court  is
either unfair or unreasonable or so vicious an invasion of  natural  justice
as to be ostracized from our constitution jurisprudence.”


This Court held that the purpose behind amendment of  the  rule  eliminating
oral hearing is that the demands  of  court  management  strategies  require
this Court to examine from time to time the  procedure  to  be  followed  in
various classes of cases brought before it and make suitable rules.
“25. …. The balancing 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  statable  case,
there is no special virtue in sanctifying the dismissal by an  oral  ritual.
The problem really is to find out which class of cases may, without risk  of
injustice, be disposed of without  oral  presentation.  This  is  the  final
court of provisional infallibility,  the  summit  court,  which  not  merely
disposes of cases beyond challenge, but is  also  the  judicial  institution
entrusted  with  the  constitutional   responsibility   of   authoritatively
declaring the law of the land. Therefore, if oral hearing will  perfect  the
process it should not be dispensed with. Even so, where issues  of  national
moment  which  the  Supreme  Court  alone  can  adequately  tackle  are  not
involved, and if a considerable  oral  hearing  and  considered  order  have
already been rendered, a review petition may not be so  demanding  upon  the
Judge's “Bench” attention, especially if,  on  the  face  of  it,  there  is
nothing new, nothing grave at stake.  Even  here,  if  there  is  some  case
calling for examination or suggestive of an earlier  error,  the  court  may
well post the case for an  oral  hearing.  (Disposal  by  circulation  is  a
calculated risk where no problem or peril is visible.)”

The Bench also observed:
“37.  …We do not claim that orality can be given a permanent  holiday.  Such
an attitude is an over-reaction  to  argumentum  ad  nauseum.  But  we  must
importantly underscore that  while  lawyer's  advocacy  cannot  be  made  to
judicial measure especially if judges are impatient, there is a strong  case
for processing argumentation by rationalisation, streamlining,  abbreviation
and in, special situations, elimination. Review proceedings in  the  Supreme
Court belongs to the last category. There  is  no  rigidity  about  forensic
strategies and the court must retain a flexible power in regard to  limiting
the time of oral arguments or, in  exceptional  cases,  eliminating  orality
altogether, the paramount principle being fair justice…..”

20.   The reasons given by my learned brother in support of  his  conclusion
that a limited oral hearing should be granted to the accused are:
(i)   that there is a possibility of (given  the  same  set  of  facts)  two
judicial minds reaching different conclusions either to award or decline  to
award death sentence.
(ii)   that  the  death  penalty  once  executed  becomes  irreversible  and
therefore every opportunity must  be  given  to  the  condemned  convict  to
establish that his life ought not to be  extinguished.   The  obligation  to
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 penalty.  In  cases  other  than  which  are  brought
before this Court as of right under Article 134, this  Court’s  jurisdiction
is discretionary.   No doubt, such discretion is  to  be  exercised  on  the
basis of certain established principles of law.   It is a matter  of  record
that this Court in  almost  every  case  of  death  penalty  undertakes  the
examination of the correctness of such decision.

24.   Article 137 does not confer any right to seek review of  any  judgment
of this Court in any person.  On the other  hand,  it  only  recognizes  the
authority of this Court to review  its  own  judgments.   It  is  a  settled
position of law that the Courts  of  limited  jurisdiction  don’t  have  any
inherent power of review.  Though this  Court  is  the  apex  constitutional
court with plenary jurisdiction, the makers of the Constitution  thought  it
fit to expressly confer such a power on this Court as they were  aware  that
if an error creeps into the judgment of this  Court,  there  is  no  way  of
correcting it.  Therefore, perhaps they did not want to leave scope for  any
doubt regarding the jurisdiction of this Court to review  its  judgments  in
appropriate  cases.  They  also  authorized   this   Court   under   Article
145(1)(e)[7] to make rules as to the conditions subject to which a  judgment
of this Court could be reviewed and also make rules regarding the  procedure
for such review.  Both Articles 137 and 145 give this  Court  the  authority
to review its judgments subject to any law made by the Parliament.

25.   As observed by this Court in Eswara Iyer’s case,  it  has  never  been
held, either in this country or elsewhere, that the  rule  of  audi  alteram
partem takes within its sweep the right to make oral  submissions  in  every
case.  It all depends upon the demands of justice in a given  case.   Eswara
Iyer’s case clearly held that review  applications  in  this  Court  form  a
class where an oral  hearing  could  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 –
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.

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 eliminated at the  review  stage.   As
explained by Eswara Iyer’s case, such an amendment  was  necessitated  as  a
result of unwarranted “review baby” boom.  This Court, in  exercise  of  its
authority under Article 145 as a part  of  the  Court  management  strategy,
thought it fit to eliminate the oral hearings  at  the  review  stage  while
preserving the discretion in the Bench considering a review  application  to
grant an oral hearing  in  an  appropriate  case.   The  Constitution  Bench
itself, while upholding the constitutionality of the amended rule  of  Order
XL, observed;
“All that we mean to indicate is that the  mode  of  ‘hearing’,  whether  it
should be oral or written or both,  whether  it  should  be  full-length  or
rationed, must depend on myriad factors and  future  developments.   ‘Judges
of the Supreme Court must be  trusted  in  this  regard  and  the  Bar  will
ordinarily be associated when decisions  affecting  processual  justice  are
taken’.”  (para 37 page 696)



28.   I do not see any reason  to  take  a  different  view  -  whether  the
“developments” subsequent to Eswara Iyer’s case, either in law  or  practice
of this Court, demand a reconsideration of the rule, in my  opinion,  should
be left to the Court’s jurisdiction under Article 145.


                                                            ………………………………….J.
                                                   ( J. CHELAMESWAR )
New Delhi;
September 02, 2014.


                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION

                   WRIT PETITION (CRIMINAL) NO.77 OF 2014

Mohd. Arif @ Ashfaq                          …     Petitioner

Versus

The Registrar,
Supreme Court of India & Others         …    Respondents

                                    WITH

                   WRIT PETITION (CRIMINAL) NO.137 OF 2010

C. Muniappan & Others                   …    Petitioners

Versus

The Registrar,
Supreme Court of India                       …     Respondent

                                    WITH

                   WRIT PETITION (CRIMINAL) NO.52 OF 2011

B.A. Umesh                              …    Petitioner

Versus

Registrar,
Supreme Court of India                  …    Respondent

                                    WITH


                   WRIT PETITION (CRIMINAL) NO.39 OF 2013

Sunder @ Sundarajan                     …    Petitioner

Versus

State by Inspector of Police & Others        …     Respondents


                                    WITH

                   WRIT PETITION (CRIMINAL) NO.108 OF 2014

Yakub Abdul Razak Memon                 …    Petitioner

Versus

Registrar,
Supreme Court of India & Others         …    Respondents

                                     AND

                   WRIT PETITION (CRIMINAL) NO.117 OF 2014

Sonu Sardar                             …    Petitioner

Versus

Union of India & Others                      …     Respondents


      J U D G M E N T

R.F. Nariman, J.

1.    This group of petitions has come before the Constitution  Bench  by  a
referral Order dated 28th April, 2014.  In each of  them  execution  of  the
death sentence awarded to  the  petitioners  has  been  stayed.   Two  basic
issues are raised by counsel appearing for the petitioners, (1) the  hearing
of cases in which death sentence has been awarded should be by  a  Bench  of
at least three if not five Supreme Court  Judges  and  (2)  the  hearing  of
Review Petitions in death sentence cases should not be  by  circulation  but
should only be in open Court,  and  accordingly  Order  XL  Rule  3  of  the
Supreme  Court  Rules,  1966  should  be  declared  to  be  unconstitutional
inasmuch as persons on death row are denied an oral hearing.
2.    Leading  the  arguments  on  behalf  of  the  petitioners,  Shri  K.K.
Venugopal, Senior Advocate appearing in Writ Petition (Crl.) No.137 of  2010
made a fervent plea that death sentence cases are  a  distinct  category  of
cases altogether.  According to the learned counsel, the award of the  death
penalty is a direct deprivation of the right to life under Article 21.   The
right to liberty under Article 21 is a facet 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 vs. State of  Punjab,  1982  (3)
SCC 24 at para 26.  Further, Section 354(3) of the  Cr.P.C.  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  paras  70
and 71).  Further, the Supreme Court has itself commented on these  vagaries
in various judgments. [See: Aloke Nath Dutta v. State of W.B. (2007) 12  SCC
230 at paras 153-178;  Swamy Shraddananda (2) v. State of  Karnataka  (2008)
13 SCC 767 at paras 48-52; and Santosh Kumar Satishbhushan Bariyar v.  State
of Maharashtra (2009) 6 SCC 498 at para 130]
3.    The 187th Law Commission Report of 2003 has recommended that at  least
5 Judges of the Supreme Court hear all death cases.   The  Army,  Air  Force
and Navy Acts all require that court martials involving the  death  sentence
should be heard by at least 5 senior officers.   An  alternative  submission
was made, that even if death sentence cases are to be heard  by  Benches  of
three Hon’ble Judges, two additional Judges  can  be  added  at  the  review
stage so that five learned Judges dispose of all reviews in  death  sentence
cases.
4.    A reference was made to Order XXXVIII of the 1950 Supreme Court  Rules
read with Order XI Rule 1 to show that all review cases should be  heard  by
a bench of at least three learned Judges. This was reduced  by  the  Supreme
Court Rules 1966 to two Judges by Order VII Rule 1. Further, in 1978  a  new
sub-rule (3) was added to Order XL of  the  Supreme  Court  Rules  providing
that all  review  applications  could  now  be  disposed  of  and  heard  by
circulation  - that is without oral argument.
5.    It was further  submitted  by  learned  counsel  that  AMNESTY  Annual
Reports show that not more than 100  death  sentences  are  awarded  in  any
given year. It was further submitted that ultimately  the  number  of  death
sentences awarded by the Supreme Court would be only 60 per annum  and  that
if limited oral arguments were allowed in these cases, the  Supreme  Court’s
overcrowded docket could easily bear the load. Also, under  the  law  as  it
currently stands, the success of review in a capital case could  potentially
turn solely upon the skill  of  counsel  who  drafts  the  review  petition.
Considering the special gravity of the consequences that could  follow  from
a mistake by counsel, an oral hearing would be desirable to ensure  that  no
injustice is inadvertently done.
6.    Learned counsel appearing in Writ Petition  (Crl.)  No.77/2014  argued
before us that as in his case the petitioner had undergone over 13 years  in
jail, in substance the petitioner had  already  undergone  the  sentence  of
life imprisonment, and as in murder cases 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 Cr.P.C.;  section
53 and 57 of the IPC and Article 20(1) of the Constitution to  bolster  this
argument.
7.    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.
8.    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  2014  and  Writ
Petition (Crl.) No. 52 of 2011.
9.    Shri Luthra, learned Amicus Curiae made two submissions before us.  In
answer to Mr. Venugopal’s  alternative  plea  that  even  if  three  learned
Judges and not five learned Judges hear the original appeal,  a  review  can
go to three of the original Judges plus two Judges newly added on,  he  said
that since a review by its very nature is a discovery by the same  bench  of
an error committed by them, these (newly added Judges)  not  being  part  of
the original bench had no occasion  to  commit  any  error,  and  therefore,
should not be added on. The second submission made before us  is  that  very
often  review  petitions  are  inartistically  drafted  consisting  of  many
grounds. One good ground which  is  sufficient  is  drowned  in  many  other
grounds, and may miss the review court in circulation, hence  the  need  for
oral argument.
10.   Shri Ranjit Kumar, learned Solicitor General  began  his  argument  by
referring to Section 362 of the Cr.P.C. and saying that  ordinarily  in  all
criminal matters no review is provided. When it was pointed out to him  that
the “court” in Section 362 could not possibly refer to  the  Supreme  Court,
and that the review power in criminal cases at the Supreme  Court  level  is
to be found in Art.137 of the Constitution  and  Order  XL  of  the  Supreme
Court Rules, the learned Solicitor General  did  not  seriously  press  this
contention.  He relied on Sajjan Singh vs. State of Rajasthan, (1965) 1  SCR
933 and  various  other  judgments  to  bolster  a  submission  made  by  an
exhaustive reading of Krishna Iyer, J.  judgment  in  P.N.  Eswara  Iyer  v.
Registrar, Supreme Court, (1980) 4 SCC 680, where  the  amendment  in  Order
XL, Rule 3 of the Supreme Court Rules, 1966 disposing  of  review  petitions
by circulation was upheld by a bench of five Hon’ble  Judges.   Para  11  of
the said judgment was read out together with para 14 to show that Judges  do
collectively apply their minds in Chambers to dispose of  review  petitions.
In para 16 of the said judgment it was pointed out that the  power  of  oral
hearing is granted earlier when the main appeal is heard and is therefore  a
good answer to oral hearing being denied at a review  stage.  The  important
point made here is that the Supreme Court is presently under  severe  stress
because of its workload and cannot have review petitions  which  become  re-
hearings of the same lis to further  damage  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 & Another, (2003) 2 SCC 501 at page 508, 509 and  Ram
Deo Chauhan v. Bani Kanta Das, (2010) 14 SCC 209 at para 35].
11.   In rejoinder, Mr. K.K.Venugopal exhorted us to go into  the  facts  of
his case and told us that the Review Petition in his case has  been  pending
since the year 2010.  He, therefore, argued that the  entire  matter  should
be heard afresh by a bench of three Judges, as both the learned  Judges  who
heard the original appeal have since retired.
DISCUSSION:
12.   In a case like this, we think it  apposite  to  start  our  discussion
with reference to the judgment of this Court in P.N.  Eswara  Iyer  (supra),
inasmuch as that judgment upheld the amendment in Order XL  Rule  3  of  the
Supreme Court Rules, which amendment did away with oral  hearing  of  review
petitions in open Court.  That is also a judgment of the Constitution  Bench
and, therefore, being a judgment of a co-ordinate Bench, is binding on  this
Bench.  The petitioners in that case had raised two arguments to  invalidate
the amendment.  The first argument  was  that  oral  presentation  and  open
hearing was an aspect of the basic  creed  that  public  justice  is  to  be
rendered from Courts which are open to the public and not in  Star  Chambers
reminiscent of the Stuart dynasty that ruled England. While  answering  this
argument, though the Constitution Bench  accepted  the  importance  of  oral
hearing, generally it took the  view  that  the  Court,  when  it  comes  to
deciding a review application, decides something  very  miniscule,  and  the
amended rule sufficiently meets the requirement of  the  principle  of  audi
alteram partem.  The Court clarified that  deciding  a  review  petition  by
'circulation' would only mean that there would not be hearing in  Court  but
still there would be discussion at judicial conference and the Judges  would
meet, deliberate and reach a collective  conclusion.   Thus,  rejecting  the
argument of oral public hearing, the Court made  inter  alia  the  following
observation:
“15.  The key question  is  different.   Does  it  mean  that  by  receiving
written arguments as provided in the new rule, and  reading  and  discussing
at the conference table, as distinguished from  the  'robed'  appearance  on
the  Bench  and  hearing  oral  submissions,  what  is  perpetrated  is   so
arbitrary, unfair and  unreasonable  a  'Pantomimi'  as  to  crescendo  into
unconstitutionality? This phantasmagoric distortion  must  be  dismissed  as
too morbid to be regarded seriously – in the matter of review  petitions  at
the Supreme Court level.
                          xx          xx         xx
19.  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 wrong as judicial allergy to arguments  in  court.
Often-times, it is the judge who will ask for oral argument as it  aids  him
much.  To be left helpless among ponderous  paper  books  without  the  oral
highlights of counsel, is counter-productive.  Extremism fails  in  law  and
life.”

13.    The  Court,  in  the  process,  also  noted  that   in   many   other
jurisdictions,  there  was  exclusion  of  public  hearing  in  such  cases.
Further, the Court found  justification  in  enacting  such  a  rule  having
regard to  mounting  dockets  and  the  mindless  manner  of  filing  review
petitions in most of the cases.
14.   The argument  was  also  raised,  predicated  on  Article  14  of  the
Constitution, that Order XL Rule 1  provides  a  wider  set  of  grounds  of
review of orders in civil proceedings than  in  criminal  proceedings.   The
Court dealt with this argument in paras 34 to 36,  and  since  some  of  the
observations made in those paras are very significant and relevant  for  our
purposes, we reproduce verbatim those paras herein:
“34.  The rule (Order XL, Rule 1), on its  face,  affords  a  wider  set  of
grounds for review for orders in civil proceedings, but  limits  the  ground
vis-a-vis criminal proceedings to  'errors  apparent  on  the  face  of  the
record'.  If at all, the concern of the law to avoid judicial  error  should
be heightened when life or liberty is in peril  since  civil  penalties  are
often less traumatic.  So, it is reasonable to assume that  the  framers  of
the rules could not have intended a restrictive  review  over  the  criminal
orders or judgments.  It is likely to be the other way about.  Supposing  an
accused is sentenced to death by the Supreme Court and the 'deceased'  shows
up in court and the court discovers the tragic  treachery  of  the  recorded
testimony.  Is the court helpless to review and set aside  the  sentence  of
hanging?  We think not.  The power to review is in Article  137  and  it  is
equally wide in all proceedings.  The rule merely canalises  the  flow  from
the reservoir of power.  The stream cannot  stifle  the  source.   Moreover,
the dynamics of interpretation depend on the demand of the context  and  the
lexical limits of the test.  Here  'record'  means  any  material  which  is
already on record or may, with the permission of the court,  be  brought  on
record.  If justice summons the judges to allow  a  vital  material  in,  it
becomes part of the record; and  if  apparent  error  is  there,  correction
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,  CPC.
 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-a-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 question  is  of  moment,  of
frequent occurrence and was mooted in  the  course  of  the  hearing.   This
pronouncement on review jurisdiction in criminal proceedings set at  rest  a
possible controversy and is as much binding on  this  Court  itself  (unless
overruled)  as  on  litigants.   That  is  the  discipline  of  the  law  of
precedents and the import of Article 141.”

15.   It is, thus, clear from the reading of  the  aforesaid  judgment  that
the very rule of deciding review petitions  by  'circulation',  and  without
giving an oral hearing in the open Court, has already been upheld.  In  such
a situation, can the petitioners still claim that when it comes to  deciding
the review petitions where the death sentence is  pronounced,  oral  hearing
should be given as a matter of right?
16.   We may like to state at this stage itself that we are going to  answer
the above question in the affirmative as  our  verdict  is  that  in  review
petitions arising out of those cases where the death penalty is awarded,  it
would be necessary to accord oral  hearing  in  the  open  Court.   We  will
demonstrate, at the appropriate  stage,  that  this  view  of  ours  is  not
contrary to  P.N.  Eswara  Iyer  (supra),  and  in  fact,  there  are  ample
observations in the said Constitution Bench judgment itself,  giving  enough
space for justifying oral hearing in cases like the present.
17.   As the determination of this case  has  to  do  with  the  fundamental
right to life, which, among all fundamental rights, is the most precious  to
all human beings, we need to delve into Article 21 which reads as follows:
“21. Protection of life and personal liberty.—No person  shall  be  deprived
of his life or personal liberty except according  to  procedure  established
by law.”

18.   This Article has its origin in nothing  less  than  the  Magna  Carta,
(the 39th Article) of 1215 vintage which King John of England was forced  to
sign by his Barons.  It is a little known fact that  this  original  charter
of liberty was faulted at the very start and did  not  get  off  the  ground
because of a Papal Bull issued by Pope Innocent  the  third  declaring  this
charter to be void.  Strangely, like Magna Carta, Art. 21 did  not  get  off
the ground for 28 years after which, unshackled, it has  become  the  single
most important fundamental right under  the  Constitution  of  India,  being
described as one of a holy trinity consisting of a  ‘golden  triangle’  (see
Minerva 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).
19.   It is to be noted that Article 21 as it originally stood in the  Draft
Constitution was as follows (Cl.15):—
“No person shall be deprived of his life or liberty without due  process  of
law.”

20.   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 Art.13 (corresponding to  Art.
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 (Art. XXXI), because they were more ‘specific’.
21.   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 Committee.  On the one side, was  the  view  of  Sri
Munshi, in favour of ‘due process’.
22.   On the other side, was Sri Alladi Krishnaswami Iyer, who favoured  the
taking of life and liberty by legislation.
Dr. Ambedkar merely summed up the two views and left it  to  the  House  “to
decide in any way it likes”.
The  House  adopted  the  Clause  as  drafted  by  the  Drafting  Committee,
rejecting “due process”.  The result,  as  stated  by  Dr.  Ambedkar,  at  a
subsequent stage, was that Art.21 gave “a carte blanche to make and  provide
for the arrest of any person  under  any  circumstances  as  Parliament  may
think fit.”
23.   As was stated by the Supreme Court in A.K. Gopalan  v.  The  State  of
Madras, 1950 SCR 88, Article 21 seems to have been borrowed from Article  31
of the then recently enacted Japanese  Constitution.  This  was  in  keeping
with B.N. Rau’s view who, in his initial draft  of  the  Fundamental  Rights
Chapter, followed the advice of U.S. Supreme Court Justice  Frankfurter  not
to  incorporate  “due  process”  from  the  5th  amendment   to   the   U.S.
Constitution.  The result was that so far as property was concerned, a  full
blown ‘due process’ was introduced  in  Articles  19(1)(f)  and  31  of  the
Constitution.  The  5th  amendment  of  the  U.S.  Constitution   was   thus
bifurcated –  a  full  blown  substantive  due  process  qua  property,  and
procedure established by law qua life and  personal  liberty.   It  took  28
years for  India  to  remedy  this  situation.   By  the  Constitution  44th
amendment Act, even the truncated right to property was completely  deleted,
and in the same year in Maneka Gandhi v. Union of India, (1978) 2  SCR  621,
the Supreme Court held that the  procedure  established  by  law  cannot  be
arbitrary but should be just, fair and reasonable.
24.   A six Judge  Bench  of  the  Supreme  Court  in  A.K.  Gopalan’s  case
construed Art.21 linguistically and textually. Kania, J. held:
“Four marked points of  distinction  between  the  clause  in  the  American
Constitution and Article 21 of the Constitution of India may be  noticed  at
this stage. The first is that in USA’s Constitution the  word  “liberty”  is
used simpliciter while in India it is restricted to  personal  liberty.  (2)
in USA’s Constitution the same protection is given  to  property,  while  in
India the fundamental right in respect of property is contained  in  Article
31. (3) The word  “due”  is  omitted  altogether  and  the  expression  “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 hanging by the neck, logically there  can  be  no
objection if it provides a sentence of death by shooting by a  firing  squad
or by guillotine or in the electric chair or  even  by  boiling  in  oil.  A
procedure laid down by the legislature may offend against the Court's  sense
of justice and fair play and a sentence  provided  by  the  legislature  may
outrage the Court's notions of penology, but that  is  a  wholly  irrelevant
consideration. The Court may construe and  interpret  the  Constitution  and
ascertain its true meaning but once that is done the Court  cannot  question
its wisdom or policy. The Constitution is supreme. The Court must  take  the
Constitution  as  it  finds  it,  even  if  it  does  not  accord  with  its
preconceived  notions  of  what  an  ideal  Constitution  should   be.   Our
protection against  legislative  tyranny,  if  any,  lies  in  the  ultimate
analysis in a free and intelligent  public  opinion  which  must  eventually
assert itself.” (at page 319-321)

25.   In Kharak Singh v. State of U.P., (1964) 1 SCR 332, Gopalan’s  reading
of fundamental rights in  watertight  compartments  was  reiterated  by  the
majority. However,  they  went  one  step  further  to  say  that  “personal
liberty” in Art.21 takes in and comprises the residue after all  the  rights
granted by Art.19.
      Justices Subba Rao and Shah disagreed. They held:
“The fundamental right of life and personal  liberty  have  many  attributes
and some of them are found in  Art. 19.  If  a  person's  fundamental  right
under Art. 21 is infringed, the State can rely upon a  law  to  sustain  the
action; but that cannot be a complete answer unless the said  law  satisfies
the test laid down  in  Art. 19(2) so  far  as  the  attributes  covered  by
Art. 19(1) are concerned. In other words, the State must satisfy  that  both
the fundamental rights are not infringed by showing that there is a law  and
that it does amount to  a  reasonable  restriction  within  the  meaning  of
Art. 19(2) of the  Constitution.  But  in  this  case  no  such  defence  is
available, as admittedly there  is  no  such  law.  So  the  petitioner  can
legitimately plead that his fundamental rights both under  Art. 19(1)(d) and
Art. 21 are infringed by the State.” (at page 356-357)

26.   The minority judgment of Subba Rao and  Shah,  JJ.  eventually  became
law in R.C. Cooper (Bank Nationalisation) vs. Union of India, (1970)  1  SCC
248, where the 11-Judge Bench finally  discarded  Gopalan’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)



27.   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  reasonable,  but
also the law itself has to be reasonable as Articles 14 and 19 have  now  to
be read into Article 21. [See: at page 646-648 per Beg, CJ.,  at  page  669,
671-674, 687 per Bhagwati, J. and at page 720-723  per  Krishna  Iyer,  J.].
Krishna Iyer, J. set out the new doctrine with remarkable clarity thus:


“To sum up, 'procedure’ in  Article 21 means  fair,  not  formal  procedure.
'Law' is reasonable law, not any enacted piece.  As  Article 22 specifically
spells out the procedural safeguards for preventive and punitive  detention,
a law providing for such detentions should conform  to  Article 22.  It  has
been rightly pointed out that for other  rights  forming  part  of  personal
liberty, the procedural safeguards enshrined  in  Article 21 are  available.
Otherwise, as the procedural  safeguards  contained  in  Article 22 will  be
available only in cases of preventive and punitive detention, the  right  to
life, more fundamental than any other forming part of personal  liberty  and
paramount to the happiness, dignity and worth of the  individual,  will  not
be entitled to any procedural safeguard save such as  a  legislature’s  mood
chooses.”  (at page 723)



28.   Close on the heels of Maneka Gandhi’s case came  Mithu  vs.  State  of
Punjab, (1983) 2 SCC 277, in which case the Court noted as follows:


“In Sunil Batra vs. Delhi Administration, (1978) 4  SCC  494  while  dealing
with the question as to whether a person  awaiting  death  sentence  can  be
kept  in  solitary  confinement,  Krishna  Iyer  J.  said  that  though  our
Constitution did not  have  a  "due  process"  clause  as  in  the  American
Constitution; the same consequence ensued after the decisions  in  the  Bank
Nationalisation’s case (1970) 1 SCC 248 and Maneka Gandhi’s  case  (1978)  1
SCC 248. …


In Bachan Singh which  upheld  the  constitutional  validity  of  the  death
penalty, Sarkaria J., speaking for the majority, said that if  Article 21 is
understood in accordance with the  interpretation  put  upon  it  in  Maneka
Gandhi, it will read to say that:

No person  shall  be  deprived  of  his  life  or  personal  liberty  except
according to fair, just and reasonable procedure established by valid  law.”
(at para 6)

      The wheel has turned full circle. Substantive due process  is  now  to
be applied to the fundamental right to life and liberty.

Application of Art.21 to these Writ Petitions:
29.   We agree with Shri K.K.Venugopal  that  death  sentence  cases  are  a
distinct category of cases altogether.  Quite  apart  from  Art.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 made by  Judges
in various cases to  state  such  circumstances,  they  remain  illustrative
only.
30.   Deflecting  a  little  from  the  death  penalty  cases,  we  deem  it
necessary to make certain  general  comments  on  sentencing,  as  they  are
relevant to the context.  Crime and punishment are two  sides  of  the  same
coin.  Punishment must fit the crime.  The notion of  'Just  deserts'  or  a
sentence proportionate to  the  offender's  culpability  was  the  principle
which, by passage of time, became applicable to criminal jurisprudence.   It
is not out of place to mention that in all of recorded  history,  there  has
never been a time when crime and punishment have not  been  the  subject  of
debate and difference of opinion.  There  are  no  statutory  guidelines  to
regulate punishment.  Therefore, in practice, there is much variance in  the
matter of  sentencing.   In  many  countries,  there  are  laws  prescribing
sentencing guidelines, but  there  is  no  statutory  sentencing  policy  in
India.  The IPC, prescribes only the maximum punishments  for  offences  and
in some cases minimum punishment is also prescribed.   The  Judges  exercise
wide discretion within the statutory limits and the scope for  deciding  the
amount of punishment is left  to  the  judiciary  to  reach  decision  after
hearing the parties.  However,  what  factors  which  should  be  considered
while sentencing is not specified under law in any  great  detail.   Emanuel
Kant, the German philosopher, sounds  pessimistic  when  he  says  “judicial
punishment can never serve merely  as  a  means  to  further  another  good,
whether for the offender himself or for the  society,  but  must  always  be
inflicted on him for the sole reason that he  has  committed  a  crime”.   A
sentence is a compound of many factors, including the nature of the  offence
as well as the circumstances  extenuating  or  aggravating  the  offence.  A
large number of aggravating circumstances and mitigating circumstances  have
been pointed out in Bachan Singh v. State of Punjab, (1980)  2  SCC  684  at
pages 749-750, that a Judge should  take  into  account  when  awarding  the
death sentence.  Again, as pointed out  above,  apart  from  the  fact  that
these lists are only illustrative, as  clarified  in  Bachan  Singh  itself,
different judicially trained  minds  can  apply  different  aggravating  and
mitigating  circumstances  to  ultimately  arrive  at   a   conclusion,   on
considering all relevant factors that the death penalty may 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”.
31.   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.
32.   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 thereafter that such a sentence was  not
warranted, that would be of no use as the life  of  that  person  cannot  be
brought back.  This being so, we feel that if the fundamental right to  life
is involved, any procedure to be just, fair and reasonable should take  into
account the two factors mentioned above. That  being  so,  we  feel  that  a
limited oral hearing even at the review stage is mandated by Art.21  in  all
death sentence cases.
 33.   The validity of no oral hearing rule in review petitions,  generally,
has been upheld in P.N. Eswara Iyer (supra) which is  a  binding  precedent.
Review petitions arising out of death sentence cases  is  carved  out  as  a
separate category as oral hearing in such review petitions is  found  to  be
mandated by Article 21.  We are of the opinion that the importance  of  oral
hearing which is recognised by the Constitution Bench in  P.N.  Eswara  Iyer
(supra) itself, would apply in such cases.   We are conscious  of  the  fact
that while awarding a death sentence, in  most  of  the  cases,  this  Court
would generally be affirming the decision on this aspect already arrived  at
by two Courts below namely the trial  court  as  well  as  the  High  Court.
After such an affirmation, the scope of review of such  a  judgment  may  be
very narrow.  At the same time, 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.  To borrow the words of Justice Krishna Iyer in P.N.  Eswara  Iyer
(supra):
“23. 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”

34.   We feel that this oral hearing, in death sentence cases,  becomes  too
precious to be parted with.  We also quote the following  observations  from
that judgment :

“29A. The possible impression that  we  are  debunking  the  value  of  oral
advocacy in open court must be erased.  Experience has shown  that,  at  all
levels, the bar, through the spoken word and the written  brief,  has  aided
the process of judicial justice.  Justicing is an art even  as  advocacy  is
an art.   Happy  interaction  between  the  two  makes  for  the  functional
fulfillment of the court system.  No judicial 'emergency' can  jettison  the
vital breath of spoken advocacy in an  open  forum.   Indeed,  there  is  no
judicial cry for extinguishment of oral argument altogether.”

35.   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.
36.    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.
37.    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 matters, as stated in P.N. Eswara Iyer’s case. The  fact  that  the
courts overcrowded  docket  would  be  able  to  manage  such  limited  oral
hearings in death sentence cases only, being roughly 60 per annum, is not  a
factor to which great weight need be accorded as the  fundamental  right  to
life is the only paramount factor in these cases.
38.   With reference to the plea that all death sentence cases be  heard  by
at least three Hon’ble  Judges,  that  appears  to  have  been  remedied  by
Supreme Court Rules,  2013,  Order  VI  Rule  3,  which  has  been  recently
notified, reads thus:

                                  ORDER VI
CONSTITUTION OF DIVISION COURTS AND POWERS OF A SINGLE JUDGE
3.    Every cause, appeal or other proceedings arising  out  of  a  case  in
which death sentence has been confirmed or awarded by the High  Court  shall
be heard by a Bench consisting of not less than three Judges.
4.    If a Bench of less than three  Judges,  hearing  a  cause,  appeal  or
matter, is of the opinion that the accused should be sentenced to  death  it
shall refer the matter to the Chief Justice who shall  thereupon  constitute
a Bench of not less than three Judges for hearing it.

39.   Henceforth, in all cases in which death sentence has been  awarded  by
the High Court in appeals pending before the Supreme Court, only a bench  of
three Hon’ble Judges will hear the same.  This is for  the  reason  that  at
least three judicially trained minds need to apply their minds at the  final
stage of the journey of a convict on death row, given the  vagaries  of  the
sentencing procedure outlined above. At present, we  are  not  persuaded  to
have a minimum of 5 learned Judges hear all death sentence  cases.  Further,
we agree with the submission of Shri Luthra that a review is  ordinarily  to
be heard only by the same bench which originally heard the criminal  appeal.
This is obviously for the reason that  in  order  that  a  review  succeeds,
errors apparent on the record have to be found. It  is  axiomatic  that  the
same learned Judges alleged to have committed the error be called  upon  now
to rectify such error.  We, therefore, turn down Shri Venugopal’s plea  that
two additional Judges be added at the review stage in death sentence cases.
40.   We do not  think  it  necessary  to  advert  to  Shri  Jaspal  Singh’s
arguments since we are accepting that a limited oral review  be  granted  in
all death sentence cases including TADA cases. We  accept  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  which
class of cases may, without risk of injustice, be disposed of  without  oral
presentation.”
41.   We are of the view that the justice of the situation in this class  of
cases demands a limited oral hearing for the reasons given above.
42.   Insofar as Shri Venugopal’s plea in his writ petition, that since  his
review petition is pending since the year 2010 and  since  the  two  learned
Judges who heard the appeal on merits have since retired, the entire  matter
should be heard afresh by a bench of three Hon’ble Judges, we feel that  the
review petition that is pending since the year 2010 should  be  disposed  of
as soon as possible by a bench of three Hon’ble Judges after giving  counsel
a maximum of 30 minutes for  oral  argument.   This  matter,  therefore,  be
placed before a bench of three Hon’ble Judges by the  Registry  as  soon  as
possible.
43.   Turning  now  to  the  facts  of  W.P.No.77/2014,  we  find  that  the
petitioner was arrested on 25.12.2000 and convicted by the learned  Sessions
Judge on 31-10-2005.  The High Court dismissed his appeal on  13.9.2007  and
the Supreme Court dismissed the appeal from the  High  Court’s  judgment  on
10.8.2011. The Review Petition of the petitioner was, thereafter,  dismissed
on 28.8.2012. We are informed at  the  bar  that  a  curative  petition  was
thereafter filed sometime in 2013 which was  dismissed  on  23.1.2014.   All
along, the petitioner has been in jail  for  about  13½  years.   Since  the
curative petition also  stands  dismissed  after  the  dismissal  of  review
petition, we would not like to reopen all these proceedings at  this  stage.
Also, time taken in court proceedings cannot be taken into  account  to  say
that there is a delay which would convert a  death  sentence  into  one  for
life. [See: Triveniben v. State of Gujarat, (1989) 1 SCC 678, at  paras  16,
23, 72].  Equally, spending 13½  years  in  jail  does  not  mean  that  the
petitioner has undergone a sentence  for  life.   It  is  settled  by  Swamy
Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767  that  awarding  a
sentence of life imprisonment means life and not a mere 14  years  in  jail.
In this case, it was held as follows:
“75.  It is now conclusively settled by  a  catena  of  decisions  that  the
punishment of imprisonment for  life  handed  down  by  the  Court  means  a
sentence of imprisonment for the convict for the rest of his life. [See  the
decisions of this Court in Gopal  Vinayak  Godse  v.  State  of  Maharashtra
(Constitution Bench), Dalbir Singh v. State of Punjab, Maru Ram v. Union  of
India (Constitution Bench), Naib Singh v. State of Punjab,  Ashok  Kumar  v.
Union of India, Laxman Naskar v. State of W.B., Zahid Hussein  v.  State  of
W.B., Kamalanantha v. State of T.N., Mohd. Munna v. Union of India and  C.A.
Pious v. State of Kerala.]
76.   It is equally well settled that Section 57 of the Penal Code does  not
in any way limit the punishment of  imprisonment  for  life  to  a  term  of
twenty years.  Section 57 is only for  calculating  fractions  of  terms  of
punishment and provides that imprisonment for  life  shall  be  reckoned  as
equivalent to imprisonment for twenty years. (See: Gopal Vinayak  Godse  and
Ashok Kumar).  The object and purpose of Section 57 will be clear by  simply
referring to Sections 65, 116, 119, 129 and 511 of the Penal Code.”

44.   Regard being had to this, it is not necessary to refer to the  various
sections of the Cr.P.C. and the  Penal  Code  argued  before  us.   Equally,
Article 20(1) has no manner of application as the  writ  petitioner  is  not
being subjected to a  penalty  greater  than  that  which  might  have  been
inflicted under the law in force at the time of commission of the offence.
45.   This petition is therefore dismissed.
46.   We make it clear that the law laid down in this  judgment,  viz.,  the
right of a limited oral hearing in review petitions where death sentence  is
given, shall be  applicable  only  in  pending  review  petitions  and  such
petitions filed in future.  It will also apply where a  review  petition  is
already dismissed but the death sentence is not executed so  far.   In  such
cases, the petitioners can apply for the reopening of their review  petition
within one month from the date of this judgment.  However,  in  those  cases
where even a curative petition is dismissed,  it  would  not  be  proper  to
reopen such matters.
47.   All the writ petitions are disposed of accordingly.


.................................CJI
                                        (R.M. Lodha)


                                        ……………………………..J.
                                        (Jagdish Singh Khehar)



                                        ……………………………..J.
                                        (A.K. Sikri)


                                        ……………………………..J.
                                        (Rohinton Fali Nariman)
New Delhi,
2nd September, 2014


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[1]



        53. Punishments- The  punishments  in  which  offenders  are  liable
under the provisions of this Code are-
      First -    Death;
      Secondly – Imprisonment for life;
      Thirdly – [Omitted by Act 17 of 1949, sec. 2 (wef 6.4.1949)]
      Fourthly – Imprisonment, which is of two descriptions, namely -
            (1)  Rigorous, that is, with hard labour;
            (2)  Simple;
      Fifthly -  Forfeiture of property;
      Sixthly-  Fine.
[2]
       [3]   The  offences  for  which  death  is  one  of  the  alternative
punishments under IPC are under Sections 121, 132, 194,  302,  305,  307(3),
364A and 376A, 376E and 396.
[4]    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

[5]    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 rupees, or both
      (3) The Court of a Magistrate of the second class may pass a  sentence
of imprisonment for a term not exceeding one year, or of fine not  exceeding
one thousand rupees, or of both
      (4) The Court of  a  Chief  Metropolitan  Magistrate  shall  have  the
powers  of  the  Court  of  a  Chief  Judicial  Magistrate  and  that  of  a
Metropolitan Magistrate, the powers of the Court  of  a  Magistrate  of  the
first class

[6]    134. Appellate jurisdiction of Supreme Court in  regard  to  criminal
matters.-


      (1) An appeal shall lie to the Supreme Court from any judgment,  final
order or sentence in a criminal proceeding of a High Court in the  territory
of India if the High Court-


      (a) has on appeal reversed an order of acquittal of an accused  person
and sentenced 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.


[7]    For the sake of clarity, it needs to be mentioned  that  the  Supreme
Court Rules, 1966 have 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.
[8]    Article 145. Rules of Court, etc.— (1)  Subject to the provisions  of
any law made by Parliament, the Supreme Court may from time  to  time,  with
the approval of the President,  make  rules  for  regulating  generally  the
practice and procedure of the Court including;

      (e)   rules as  to  the  conditions  subject  to  which  any  judgment
pronounced or order made by the Court may be reviewed and the procedure  for
such review including the time within which applications to  the  Court  for
such review are to be entered.

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