Most of the review petitions are dismissed by the Supreme Court without hearing them in the open court (see: Success Rate of Review Petition and Curative Petition in Supreme Court). As an exception, the Supreme Court on 19 January 2016, permitted Pakistani Lashkar-e-Taiba militant Mohammad Arif alias Ashfaq’s plea for an open court hearing of his petition seeking review of its August 10, 2011 verdict upholding his death sentence in the December 22, 2000 Red Fort attack case.
Making exception to its September 2, 2014 verdict limited to the case of Arif, the constitution bench of Chief Justice T.S.Thakur, Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice A.K.Sikri and Justice Rohinton Fali Nariman gave him a month’s time to file fresh review plea that would be heard in the open court.
The court also permitted Arif to raise additional grounds supporting his plea for the review of the 2011 verdict.
The apex court by its September 2, 2014 verdict had said that in the cases where the death sentence has been upheld by it, the convict will have a right that his petition seeking review of this verdict would be heard by a three judges bench in open court.
In the case of pending death row convicts, the court had said that in cases where the review plea have been already rejected but curative petition has not been moved or decided, the death row convicts can, within one month, move afresh for an open court hearing of their review plea.
The court bhad said that the window of an open court hearing of the review plea would not be available to those death row convicts in whose case both review plea and curative petition have been declined.
Seeking the recall of the September 2, 2014 order, Arif had contended that he was the only death row convict who was denied the opportunity of an open court hearing as he came in the category where even the curative petition too had been rejected.
Taking on record the contention by Arif’s counsel and Additional Solicitor General Tushar Mehta appearing for the Central Bureau of Investigation, the court made an exception to Arif’s case noting that his was the solitary case where on account of September 2, 2014 verdict, he could not get an open court hearing of his plea.
Around 9 p.m. on December 22, some armed intruders entered the Red Fort and started indiscriminate firing, killing three soldiers of the Rajputana Rifles, deployed in the Red Fort for its protection.
A Quick Reaction Team returned the fire but none of the attackers was hit, and they were successful in escaping by scaling over the rear side boundary wall of the fort.
While upholding the death sentence of Arif, the apex court by its August 10, 2011 verdict had said that “this is a unique case where there is one most aggravating circumstance that it was a direct attack on the unity, integrity and sovereignty of India by foreigners. Thus, it was an attack on Mother India. This is apart from the fact that as many as three persons had lost their lives.”
Holding that the death sentence was the only sentence that could be awarded to Arif, the court had said that Arif had “built up a conspiracy by practicing deceit and committing various other offences in furtherance of the conspiracy to wage war against India as also to commit murders by launching an unprovoked attack on the soldiers of Indian Army”.