New Delhi: The Supreme Court Thursday rejected the review plea filed by Lashkar-e-Taiba terrorist Mohammad Arif alias Ashfaq, confirming his death sentence in the 2000 Red Fort attack case. But the writ petition filed by Arif, the one that led to his plea being reopened, has saved almost 20 people from the gallows since 2014.
Arif’s petition had led to the landmark Supreme Court judgment in 2014, directing oral hearing in open court in review petitions involving death penalty cases. It resulted in several review petitions being reheard and multiple death sentences being commuted and, in one case, an acquittal of six prisoners.
Before 2014, review petitions filed against judgments confirming death penalties were heard ‘by circulation’, that is in the judges’ chambers. The judgment was arrived at in a discussion among themselves, there was no opportunity for the petitioner’s voice to be represented.
Directing the petitions to be heard in open court allows a lawyer to advocate on behalf of the prisoner.
In the judgment, the apex court emphasised the importance of this oral hearing in death row review petitions, considering the fact that “death penalty is irreversible in nature” and that “once a death sentence is executed, that results in taking away the life of the convict”.
The judgment was passed on a group of writ petitions filed in the Supreme Court, including those by Arif, and Yakub Memon, who was hanged in 2015 for his role in the 1993 Mumbai blasts. The first petition in this batch was filed in 2010 by C. Muniappan, an accused in the 2000 Dharmapuri bus burning case in Tamil Nadu. This petition was argued by senior advocate K.K. Venugopal. All of these petitions were taken up together, with Arif’s being the first matter, despite the fact that it was filed in February 2014, four years after Muniappan’s plea.
The court had ruled that its judgment would apply to pending review petitions and future review petitions. Notably, the court had also said that the verdict would also apply to review petitions that have already been dismissed but where the death sentence has not been executed at the time of the judgment. It said that in such cases, the petitioners can apply for the reopening of their review petition within one month.
As per a report published by Project 39A, a legal research and advocacy initiative of National Law University, Delhi, 13 cases were reopened and re-heard after the 2014 judgment. Of these, seven judgments resulted in commutation of death sentences of nine prisoners and one judgment led to the acquittal of six prisoners.
Another case was abated due to the death of the prisoner and, in four verdicts, the court confirmed the death sentences for five prisoners.
Among the cases decided after the 2014 judgment, seven judgments confirmed the death penalty to nine prisoners, and three judgments led to the commutation of death sentence awarded to four prisoners.
Also Read: ‘Legal aid not just for namesake, should be effective, not a sham’: Why SC freed death row convict
From the chambers to open court
Before 2014, review petitions filed against judgments confirming death penalties were heard ‘by circulation’, without any oral hearing in open court.
Six writ petitions, with Arif’s being the lead case, were then filed before the SC, with two demands — that cases which involve a death sentence should be heard by a bench of at least three Supreme Court judges, and that review petitions in death sentence cases should be heard in open court.
In September 2014, a five judge bench, ruled with a 4:1 majority, that only three-judge benches of the Supreme Court will hear appeals in death penalty cases. While Justice Jasti Chelameswar dissented, the majority verdict asserted, “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.”
The court acknowledged that oral hearing in such review petitions is important considering the fact that “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”.
Out of the 13 cases which were reheard after this judgment, the one which acquitted the six prisoners saw the Supreme Court awarding a compensation of Rs 5 lakh to each of those acquitted, noting that they were “nomadic tribes and falsely implicated”. The 2003 case involved murder of five members of a family and the gangrape of two women during a dacoity.
Also Read: Juvenile at time of arrest, why accused in 2017 Gurugram school murder will be tried as an adult
‘Direct attack on unity, sovereignty of India’
Arif was awarded the death sentence by the trial court in October 2005, which was confirmed by the Delhi High Court in September 2007, and by the Supreme Court in August 2011. He filed a review petition against the Supreme Court’s judgment, which was rejected in August 2012, and a curative petition filed by him was also rejected in January 2014.
He then filed a writ petition in the Supreme Court, which resulted in the judgment passed in September 2014. His review petition was thus reopened and reheard.
However, a bench comprising Chief Justice of India U.U. Lalit, S. Ravindra Bhat and Bela M. Trivedi rejected Arif’s review petition Thursday and confirmed the death sentence awarded to him.
The top court now felt the “circumstances on record do clearly spell out and prove beyond any doubt the involvement of the review petitioner in the crime in question”.
It opined, “The aggravating circumstances evident from the record and especially the fact that there was a direct attack on the unity, integrity and sovereignty of India, completely outweigh the factors which may even remotely be brought into consideration as mitigating circumstances on record.”
(Edited by Theres Sudeep)
Also Read: ‘Murderer’s mom’—Not just the prisoner, their family also goes on death row in India