New Delhi: The Supreme Court Tuesday held that in the cases where it has upheld a death sentence, the convict will have a right to have his review petition heard by a three judges bench in open court.
A constitution bench of Chief Justice RM Lodha, Justice Jagdish Singh Khehar, Justice A.K.Sikri and Justice Rohinton Fali Nariman, in a majority judgment, said: "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."
The verdict, pronounced by Justice Nariman, further said that this 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, it said "in those cases where even a curative petition is dismissed, it would not be proper to reopen such matters."
In his dissenting judgment, Justice J Chelameswar said: "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" in the majority judgment.
With the majority favouring an open court hearing of such pleas, the court read down the order XL, Rule 3 of the Supreme Court Rules, 1966 which the oral hearings of review petitions was eliminated and were decided in the chambers by circulation.
The majority judgment favoured open court hearings on the grounds that death sentence once carried out is irreversible and "different judicially trained minds can arrive at conclusions which, on the same facts, can be diametrically opposed to each other".
Such an oral hearing was also justified even if there was a "remote chance of deviating" from the verdict sentencing the convict to death.
While agreeing with the majority view that death penalty results in deprivation of the most fundamental liberty guaranteed by the constitution resulting in an irreversible situation, Justice Chelameswar said that "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".
"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," he noted.
On the majority reasoning of different judicial minds arriving at diametrically opposed conclusions, Justice Chelameswar said 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".
Saying the open court hearing of such review petitions could not be made an exception, he said: "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."
The majority and minority verdicts came as court addressed two issues - the hearing of death sentence should be by a bench of at least three if not five Supreme Court judges and the hearing of review petitions in death sentences should not be by circulation but only be in open court.
The court said that the plea that such appeals be heard by at least a three judge bench have been remedied by Supreme Court Rules, 2013, Order VI Rule 3, which has been recently notified.
The court order came on a batch of petitions by including Dec 22, 2000 Red Fort attack convict and Lashkar-e-Taiba militant Mohammad Arif alias Ashfaq, 1993 Mumbai bomb blast death row convict Yakub Abdul Razak Memon and Nedunchezhiyan, Ravindran and C. Muniappan, convicted for setting on fire, February 2, 2000, a Tamil Nadu Agricultural University bus in the Dharmapuri protesting against the sentencing of then state Chief Minister Jayalalithaa.
The defense team also renewed its request that the trial not take place in Boston, arguing that holding it in the northeastern city so severely impacted by the attacks would be prejudicial to the defendant.
Defense lawyers requested in June that Tsarnaev's trial be moved to Washington, DC.
Prosecutors last month, in their response to that defense motion, insisted it is fully possible to seat a jury untainted by more than a year of wall-to-wall coverage of the case.