Red Fort Attack Curative Petition: Finality, Terrorism and Fair Trial

**Red Fort Attack Curative Petition: Finality, Terrorism and Fair Trial**

### Introduction

The Supreme Court of India has reportedly issued notice on a curative petition filed by Lashkar‑e‑Toiba operative Mohammed Arif alias Ashfaq, sentenced to death for his role in the 22 December 2000 attack on the Red Fort in Delhi. Three army personnel were killed when armed intruders opened fire inside the historic fort complex. Arif’s conviction and death sentence have already survived scrutiny at every conventional appellate stage, including a detailed review in open court in Mohd. Arif @ Ashfaq v State (NCT of Delhi) (2022). The move to invoke the court’s curative jurisdiction therefore raises fundamental questions about the balance between finality of criminal litigation, the fair‑trial rights of those facing the death penalty, and the State’s response to acts characterised as terrorism and “waging war” against India.

### Legal Background

The prosecution case, as affirmed by the Supreme Court, was that armed intruders linked to the banned Lashkar‑e‑Toiba outfit attacked the army unit stationed inside the Red Fort, killing three soldiers before escaping by scaling the boundary wall. Arif was prosecuted under a wide array of provisions, including sections 302 (murder), 120B (criminal conspiracy), 121 and 121A (waging war and conspiracy to wage war) of the Indian Penal Code, along with offences under the Arms Act, the Explosive Substances Act and section 14 of the Foreigners Act for illegal entry.

The trial court imposed the death sentence in 2005, which the Delhi High Court confirmed in 2007. In 2011, the Supreme Court dismissed Arif’s criminal appeals, affirming both conviction and sentence on the basis of an extensive circumstantial chain: recoveries of weapons and explosives, ballistic linkage between recovered rifles and cartridges at the scene, the use of forged identity documents, unexplained financial transactions, and his role in facilitating access to hideouts where further arms and grenades were seized.

Procedurally, Arif’s case is notable for having shaped Indian death penalty jurisprudence. In Mohd. Arif @ Ashfaq v Registrar, Supreme Court of India (2014), a Constitution Bench held that review petitions in death cases must be heard in open court by a bench of at least three judges. Pursuant to that decision, Arif’s review was reopened and finally decided afresh in 2022, when a three‑judge bench again dismissed the review petitions after addressing, inter alia, the admissibility of call detail records under section 65B of the Evidence Act in light of Anvar P.V. v P.K. Basheer and Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal.

The present step is a curative petition – an extraordinary device crafted by the Supreme Court in Rupa Ashok Hurra v Ashok Hurra to correct gross miscarriages of justice after dismissal of a review. The court has consistently held that the curative jurisdiction is extremely narrow, to be exercised only where there is a violation of natural justice or where a binding precedent has been ignored, leading to a grave injustice.

### Critical Analysis

The notice issued on Arif’s curative plea must be seen against this dense backdrop of substantive and procedural scrutiny. The 2022 review judgment is particularly important. There, the Supreme Court accepted that certain call data records were inadmissible for want of the mandatory section 65B(4) certificate, and expressly “eschewed” two circumstances that depended on those records. Nonetheless, it held that the remaining circumstantial evidence—particularly the recoveries of AK‑56 rifles, hand grenades and ammunition at Arif’s instance, the ballistic correlation between those weapons and the cartridges found at the Red Fort, and the unexplained handling of significant funds—was sufficient to sustain conviction.

This approach aligns with the classic test for circumstantial evidence laid down in Sharad Birdhichand Sarda v State of Maharashtra and followed in later authorities such as Aftab Ahmad Ansari v State of Uttaranchal: each circumstance must be firmly established, the circumstances must be consistent only with guilt, and the chain must be so complete as to exclude any reasonable hypothesis of innocence. The 2022 bench reaffirmed that standard and concluded that, even after discounting the defective electronic evidence, the chain remained intact.

From a procedural standpoint, the central question for the curative stage is not whether another view on the evidence is theoretically possible. In Vikram Singh v State of Punjab and Akshay Kumar Singh v State (NCT of Delhi), the Supreme Court emphasised that review and curative powers are not appellate in nature: they are reserved for errors apparent on the face of the record or for correcting manifest injustice, not for re‑arguing questions already examined in depth. This is even more so where, as in Arif’s case, the court has already revisited the matter once under a Constitution Bench‑mandated enlarged review.

At the same time, Indian capital sentencing jurisprudence, beginning with Bachan Singh v State of Punjab and developed in Machhi Singh v State of Punjab and later terrorism cases such as Mohd. Ajmal Amir Kasab v State of Maharashtra, stresses individualised sentencing and the “rarest of the rare” standard. In its 2011 and 2022 decisions, the court treated the Red Fort attack—described as an assault on a symbol of India’s sovereignty and “an attack on Mother India”—as falling squarely within the rarest of the rare category, drawing on reasoning earlier applied in the Parliament Attack case, State (NCT of Delhi) v Navjot Sandhu, and in Yakub Abdul Razak Memon v State of Maharashtra.

A potential line of argument in curative proceedings could be that this emotionally charged characterisation overshadowed a rigorous inquiry into mitigating factors, including the possibility of reform, long incarceration on death row, or comparative proportionality with co‑accused whose trials failed or who were acquitted. The 2022 review, however, records the absence of any substantive mitigation advanced on Arif’s behalf, and explicitly finds no material suggestive of rehabilitation potential, in contrast to cases like Vasanta Sampat Dupare v State of Maharashtra where post‑conviction conduct was scrutinised yet ultimately found insufficient to tilt the balance away from death.

Comparatively, many common law jurisdictions have moved away from capital punishment even in terrorism cases. The UK, for example, abolished the death penalty for treason and piracy decades ago; contemporary terrorism prosecutions under legislation such as the Terrorism Act 2000 result in very long custodial sentences but not execution. In that sense, Indian jurisprudence on terrorism retains a distinct stance: while acknowledging international human rights trends, the Supreme Court has consistently held that, so long as the death penalty remains constitutionally valid for offences like waging war and certain murders, there will be a narrow class of terrorism cases where it is properly imposed.

### Opinion & Outlook

Given the highly circumscribed nature of the curative jurisdiction and the Supreme Court’s extensive engagement with both conviction and sentence in earlier stages, the legal threshold for Arif’s curative petition is formidable. To succeed, he would need to demonstrate not merely that arguable errors exist, but that there has been a fundamental violation of natural justice—such as denial of a fair hearing—or that a binding constitutional principle was overlooked in a manner that undermines the integrity of the earlier decisions.

On the available public information, the more likely outcome is that the curative petition will be dismissed after notice and hearing, with the court reaffirming both the correctness of the conviction on non‑electronic circumstantial evidence and the application of the “rarest of the rare” standard to a pre‑meditated armed assault on a symbol of national sovereignty. Nonetheless, the very act of issuing notice signals a continuing institutional caution in capital cases, consistent with the court’s own recognition in Mohd. Arif (2014) that death sentence matters warrant enhanced procedural safeguards, including oral hearing of review petitions by a larger bench.

Looking ahead, this curative proceeding may provide the court with an opportunity—whether or not relief is ultimately granted—to restate and rationalise the principles governing late‑stage challenges in death cases, including the interface between evolving evidentiary doctrines (such as section 65B compliance) and long‑finalised convictions, and the weight to be placed on prolonged death row incarceration. Clarificatory observations on these points would be valuable for trial courts and appellate benches alike, even if the specific petition does not succeed.

### Conclusion

The Red Fort attack litigation has already left a significant imprint on Indian criminal procedure and death penalty law, from mandating open‑court review hearings in capital cases to refining the treatment of electronic evidence. The fresh curative petition by Mohammed Arif tests how far the Supreme Court is prepared to reopen a terrorism conviction and death sentence that have withstood prolonged and repeated scrutiny. Whatever the outcome, the proceedings will again spotlight the tension between the demands of national security and the non‑derogable requirement that even those accused of the gravest offences receive a trial and sentencing process that is scrupulously fair, procedurally robust, and consistent with the rule of law.