FACTS OF THE CASE

1. Incident: On the night of 22 December 2000, two armed terrorists infiltrated the Red Fort in New Delhi and opened indiscriminate fire, resulting in the death of three jawans of the 7th Rajputana Rifles unit of the Indian Army posted at the historic monument.

2. Investigation: A forensic and physical examination of the crime scene led to the recovery of bullet shells, an AK-56 rifle, and a piece of paper with the mobile number 9811278510. This number was later found to have been used to call journalists at the BBC claiming responsibility for the attack on behalf of Lashkar-e-Taiba (LeT).

3. Tracing leads: The number was traced to an address in Ghazipur, East Delhi, leading law enforcement officials to Flat No. 308-A. The police monitored the flat and raided it during the night of 25–26 December 2000.

4. Arrest of Mohd. Arif: During the raid, Mohd. Arif @ Ashfaq, a Pakistani national, was arrested. He was found in possession of an illegal pistol and live ammunition. A search of the premises led to the recovery of further arms and ammunition, including grenades, concealed at his instance.

5. Confession and recovery: In police custody, Arif confessed to being a LeT operative and admitted his role in the planning and execution of the Red Fort attack. He led the police to further evidence, including concealed arms from a location in Okhla.

6. Charges framed: Arif was charged under Sections 121 (Waging War), 302 (Murder), 307 (Attempt to Murder), 120B (Conspiracy) of the Indian Penal Code, along with provisions of the Arms Act, Explosives Act, and Unlawful Activities (Prevention) Act.

7. Trial and conviction: After a full trial in the Court of the Additional Sessions Judge, Delhi, Arif was convicted and sentenced to death on 31 October 2005.

8. Appeal proceedings: The Delhi High Court, in September 2007, upheld the conviction and sentence. Arif’s appeal to the Supreme Court was also dismissed on 10 August 2011.

9. Review and curative petitions: Arif’s review petition under Article 137 was dismissed in chambers (by circulation) on 28 August 2012 without an oral hearing. A subsequent curative petition was also dismissed in January 2014.

10. Writ petition: In 2014, Arif filed Writ Petition (Criminal) No. 77/2014, challenging the procedural validity of the Supreme Court’s practice of disposing of review petitions in death penalty cases without open-court oral hearings, arguing this violates Article 21 of the Constitution.

ISSUES OF THE CASE

1. Whether the disposal of review petitions in death penalty cases through “circulation” (i.e., in chambers without oral arguments), as per Order XL Rule 3 of the Supreme Court Rules, violates Article 21 of the Constitution and is thus unconstitutional?

This issue raised a fundamental question regarding procedural fairness in the judicial process for death penalty cases. The petitioner argued that disposing of review petitions without granting the accused an opportunity to be heard in open court amounts to a denial of natural justice.

Order XL Rule 3 of the Supreme Court Rules, 1966 allows review petitions to be decided “by circulation,” i.e., without oral submissions or in-person hearings. This rule had been historically applied to all review matters.

However, the petitioner argued that capital punishment cases constitute a distinct class due to the irreversible nature of the penalty, thereby necessitating stricter procedural safeguards under Article 21, which guarantees protection of life and personal liberty.

The issue involved determining whether Article 21 imposes a higher threshold of fairness in procedural safeguards when life itself is at stake, requiring oral hearings during the review stage.

2. Whether the appeal in cases involving the death penalty must be mandatorily heard by a larger bench specifically, a bench consisting of not less than three or five judges of the Supreme Court to satisfy constitutional due process requirements under Article 21 and to ensure consistency and depth in capital sentencing?

This issue questioned whether the seriousness and finality of the death sentence required multi-judge benches to ensure better judicial deliberation, avoid inconsistencies, and reduce the possibility of arbitrariness in sentencing.

At the time of Arif’s appeal, many death sentence matters had been heard and disposed of by two-judge benches, and it was only with the Supreme Court Rules, 2013 (Order VI Rule 3) that a three-judge bench was mandated.

The petition therefore sought retrospective application of a more robust bench composition standard and requested a formal declaration that no death penalty appeal can be lawfully decided by fewer than three judges.

The broader constitutional concern was to ensure institutional safeguards within the judiciary when exercising the power to confirm or commute death sentences.

JUDGEMENT

The Constitution Bench delivered a 4:1 majority judgment ass:

On Issue 1: Oral hearing in review petitions in death penalty cases

The Supreme Court, by a 4:1 majority, held that review petitions filed in death sentence cases must be heard in open court with oral arguments.

This ruling marked a departure from the traditional practice of deciding review petitions by circulation. The Court interpreted Article 21 as requiring greater procedural safeguards when the matter concerns the execution of a human being.

The judgment emphasized that while Order XL Rule 3 is valid generally, it cannot override constitutional rights in the specific context of capital punishment. In such cases, oral arguments are essential to ensure that all possible dimensions of the matter — legal, factual, procedural, or humanitarian — are thoroughly considered.

Accordingly, the Court laid down the rule that all pending and future review petitions in death sentence cases must be granted oral hearings, limited to 30 minutes per side.

The Court also permitted those whose review petitions had already been dismissed by circulation, and who had not yet been executed, to apply within one month for an oral hearing to reopen their review petition.

However, the Court refused to reopen review or curative petitions that had already been dismissed and exhausted — as in Arif’s own case — citing finality of the judicial process.

On Issue 2: Bench strength in death penalty appeals

The Court held that appeals in death sentence cases must be heard by a bench of at least three judges.

While Arif’s appeal had been heard by a two-judge bench, the Court noted that the Supreme Court Rules, 2013 had already remedied this concern. Order VI Rule 3 of the 2013 Rules made it mandatory for all death sentence appeals to be placed before a three-judge bench. The Court declined to apply this rule retrospectively, stating that the rule change was prospective in nature and did not invalidate earlier decisions by smaller benches.

The Court rejected the petitioner’s argument that a five-judge bench should be mandated for all capital cases, holding that three judges provide sufficient institutional protection for ensuring fair and robust judicial review.

The Court, therefore, validated the prospective application of the three-judge bench requirement but did not disturb prior convictions or appeals decided by smaller benches.

Additional rulings beyond the two main issues

The Court reiterated that finality of judgments is a constitutional principle and an essential feature of legal certainty. Once a matter has been decided through both review and curative petitions, and there is no procedural or substantive irregularity, the Court will not allow further reopening and clarified that its new procedural directive regarding oral hearings in death penalty reviews is a constitutional safeguard, not a matter of administrative convenience or discretionary policy.

The Court emphasized that while judicial economy and docket pressure are valid considerations, they cannot override the fundamental rights of a prisoner whose life hangs in the balance.

REASONING

1. The constitutional sanctity of Article 21

The Court reaffirmed that Article 21, which protects life and personal liberty, is not merely a procedural formality but a core constitutional guarantee. Any procedure that seeks to restrict or extinguish this right must be just, fair, and reasonable, as per the landmark judgment in Maneka Gandhi v. Union of India (1978).

In the context of the death penalty, the stakes are absolute, and the Court held that higher standards of procedural fairness must be observed. The irreversible nature of capital punishment requires maximum caution at every stage.

2. Oral hearings and the role of natural justice

The Court underscored the doctrinal importance of audi alteram partem — the right to be heard. Even if a review petition is unlikely to succeed, the opportunity for oral advocacy may allow the Court to notice an error or a humanitarian consideration that might otherwise go unnoticed.

The Court observed that oral arguments provide nuance, emphasis, and immediacy, which written submissions alone may fail to convey — especially when life is at stake.

3. Recognition of death penalty cases as a distinct category

The Court treated death penalty litigation as a special class of cases that demands enhanced judicial attention. This flows from both constitutional principles and statutory context — including Section 354(3) CrPC, which requires special reasons for imposing a death sentence. 

Moreover, Article 134(1) of the Constitution provides for an automatic right of appeal in such cases, further indicating that capital punishment is not ordinary litigation, and must be distinguished procedurally and jurisprudentially.

4. Re-evaluation of prior precedent

While the earlier decision in P.N. Eswara Iyer had upheld the practice of review by circulation, the Court noted that it was not binding in the context of death sentences. That judgment was concerned with review petitions in general and had not carved out an exception for capital cases.

The Court also noted that even in P.N. Eswara Iyer, the importance of oral advocacy had been acknowledged in principle. Therefore, evolving Article 21 jurisprudence justified a context-sensitive deviation in the present case.

5. Comparative and international jurisprudence

The majority looked at comparative constitutional practices in other common law jurisdictions, including the UK and USA, where procedural fairness in capital cases is subject to the highest level of scrutiny.

The Court concluded that India’s procedural law must evolve in line with global standards to preserve the dignity of the individual, even one convicted of grave crimes.

6. Judicial economy vs. constitutional mandates

While the Court acknowledged concerns about the Supreme Court’s large caseload, it firmly rejected the idea that efficiency should trump constitutional protections, especially in matters involving life and death.

The balance, it held, must favour the prisoner’s fundamental rights, even if it demands marginal additional time from the judicial system.

CONCLUSION

The Supreme Court’s decision in Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India & Ors. marks a milestone in capital-punishment practice. By requiring that review petitions in death-sentence cases be heard in open court with a concise oral hearing, the Court affirmed that written filings alone cannot fully convey crucial arguments or mitigating factors when a life is at stake. This embrace of the “power of the spoken word” ensures judges directly assess counsel’s submissions before confirming a death penalty.

The judgment also constitutionally endorsed a minimum three-judge bench for all death-penalty appeals—already reflected in the 2013 Rules—reinforcing the need for broader judicial scrutiny to guard against arbitrariness.

Although these reforms apply prospectively so Arif’s own review and curative petitions remain closed the ruling sets binding procedural safeguards for future cases. In balancing docket pressures with the inviolable right to life under Article 21, the Court made clear that administrative efficiency must never eclipse fairness, transparency, and due process when human life hangs in the balance.

REFERENCES

1. https://indiankanoon.org/doc/80457116/ 

2. https://api.sci.gov.in/supremecourt/2011/29890/29890_2011_1_1502_39505_Judgement_03-Nov-2022.pdf 

3. https://blog.ipleaders.in/mohd-arif-ashfaq-vs-the-reg-supreme-court-of-india-2014/ 

3. Mohd. Arif  v. Supreme Court Of India (2014) 9 SCC 737   

Written by Anushka Singh student of Aligarh Muslim University, AMU, Aligarh an Intern under Legal Vidhiya.

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‘Social Media Head’ and ‘Case Analyst’ of Legal Vidhiya.