Review, Curative Petition and Mohd. Arif

In one line

In a death case the review petition is heard in open court by at least three judges, and the Court's reason for the rule is MU's own question in the Court's own words.

In the wording a student can write in an exam: in Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India, (2014) 9 SCC 737, a Constitution Bench held by a majority that a review petition in a case where the death penalty has been affirmed by the Supreme Court shall be heard in open court, giving the review petitioner an opportunity to make oral submissions, unlike other review petitions which are decided by circulation in chambers; and that such a review shall be heard by a Bench of a minimum of three judges. Chelameswar J dissented.

Where review sits

The sequence after the Supreme Court dismisses an appeal.

Review, Article 137. The Supreme Court has power to review any judgment pronounced by it. Limitation is thirty days. Ordinarily a review is decided by circulation in chambers, without oral argument.

Curative petition. A further and exceptional remedy after review is dismissed, on grounds of a violation of natural justice or of apparent bias, circulated to the three senior-most judges and to the judges who passed the judgment.

Mercy. Articles 161 and 72, and now the procedure and time limits in section 472 of the Bharatiya Nagarik Suraksha Sanhita 2023.

What Mohd. Arif decided

Open court. A review petition in a death penalty case must be heard in open court with oral submissions, and not decided by circulation.

Three judges. Such a review is to be heard by a Bench of a minimum of three judges.

The reasoning, which is the point

The Court's own explanation is the most candid judicial statement of the problem in this module.

A sentence is a compound of many factors, including the nature of the offence and the circumstances extenuating or aggravating it. Bachan Singh set out a large number of aggravating and mitigating circumstances that a judge should take into account, and those lists are, as Bachan Singh itself made clear, only illustrative. Different judicially trained minds can apply different aggravating and mitigating circumstances and ultimately arrive at different conclusions.

That is MU's proposition, from a Constitution Bench, as the reason for a rule. The Court did not deny that outcomes vary with the Bench; it accepted it and built a further safeguard on it.

Why the remedy chosen is significant

Notice what the Court did not do.

It did not lay down a better test. It did not require additional material to be collected, which is what Manoj v. State of Madhya Pradesh did eight years later. It added another hearing, before more judges, in open court.