In a brief – and interesting – judgment today, a Constitution Bench of the Supreme Court ruled – by a 4-1 majority – that death penalty review petitions must be heard orally, in open court. The background of the case was that Order XL, Rule 3 of the Supreme Court Rules allows for review petitions to be decided by “circulation” – i.e., in the chambers of the judges, without oral argument. The constitutionality of Order XL, Rule 3 had been challenged before a Constitution Bench of the Supreme Court in P.N. Eswara Iyer vs Registrar, Supreme Court of India. Krishna Iyer J., writing for the majority, upheld the provision dispensing with oral arguments for reviews. The present Court, being bound by the judgment in P.N. Eswara Iyer, carved out a specific exception for the death penalty, because of its Article 21 implications. It did so by invoking specific observations made by Krishna Iyer J, in that case, namely “…presentation can be written or oral, depending upon the justice of the situation“, and “…the problem really is to find out which class of cases may, without risk of injustice, be disposed of without oral presentation.” (para 40)

Nariman J., writing for the majority, went into the judicial history of Article 21 from A.K. Gopalan to Maneka Gandhi, via R.C. Cooper, before holding 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.” (para 29)

And, soon after:

… 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” [under Article 21].

In addition, rejected the petitioners’ arguments that the review bench strength be increased from three to five (para 39). Regrettably, the Court also affirmed the Triveniben holding, that “time taken in court proceedings [in this case, thirteen and a half years] cannot be taken into account to say that there is a delay which would convert a death sentence into one for life”, and went on to say that its oral hearing rule would not apply to already-dismissed curative petitions.

One of the interesting aspects of today’s judgment is its setting apart of death sentences from all other sentences that have an impact on personal liberty, for special treatment under Article 21. The Court does so on the twin basis of the irreversibility of a death sentence, and the fact that different judges come to different conclusions about awarding death. The second point, however, is something that is common to all sentencing. Clearly, therefore, it acquires special constitutional significance when it is combined with the fact of irreversibility. In other words, irreversibility is what makes the possibility of arbitrariness in death sentencing (as opposed to ordinary sentencing) particularly problematic, and hence the need for the procedural safeguards under Article 21.

Recall, however, that in Bachan Singh vs State of Punjab, the Constitutional challenge to S. 354(3) of the CrPC, which requires judges to give special reasons, in writing, on the award of the death penalty, was dismissed. The majority, in that case, held:

The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment… The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused… In view of the above, it will be impossible to say that there would be at all any discrimination, since crime as crime may appear to be superficially the same but the facts and circumstances of a crime are widely different. Thus considered, the provision in Section 302, Penal Code is not violative of Article 14 of the Constitution on the ground that it confers on the Judges an un-guided and uncontrolled discretion in the matter of awarding capital punishment or imprisonment for life.”

In Bachan Singh, therefore, the Court considered differential judicial outcomes to be an integral part of criminal sentencing (thus discounting even the possibility of arbitrariness). Santosh Kumar Bariyar more or less departed from this position by subjecting the death penalty to rigorous Article 14 analysis, and proposing standards such as the principle of prudence (which have since been honoured more in the breach than in the observance). Today’s judgment extends the Bariyar line of argument by affirming that the death penalty is not like ordinary criminal sentencing, and must be subjected to exacting constitutional scrutiny. At least potentially, therefore, it leaves the field open for a future challenge that is based on a showing that the administration of the death penalty in India has become so arbitrary and unpredictable (that is, judicial minds are arriving at diametrically opposite conclusions, notwithstanding the same facts), that it is no longer possible for the punishment to survive, and simultaneously remain consistent with Article 14. Or, to put it another way, today’s judgment added a procedural safeguard (open court hearings) to the death penalty scheme, in order that it remain consistent with reasonable procedure under Article 21 — and in particular, to mitigate the potential arbitrariness of different judges arriving at different conclusions, an arbitrariness that becomes constitutionally problematic under Article 21 because of the irreversibility of the death penalty. This implies, of course, that different judges reaching different conclusions (without any discernible basis) is, contra Bachan Singh, which saw that as a praiseworthy aspect of judging, is actually problematic when it comes to the death penalty. Consequently, empirical studies demonstrating precisely that (whatever procedural safeguards there may be) might constitute a strong ground – sometime in the future – to challenge the prevalence of death penalty in India.