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SCOI Report: The definitive account of whole-day of SC arguments to save Yakub Memon’s life [UPDATE-2]

SCOI Report, Wednesday 29 July 2015:Yakub Abdul Razak Memon vs State of Maharashtra Through the Secretary, Home Department, and Others

The hearing of the case, held before the three-Judge Bench in Court No.4 took the whole day, with Justice Dipak Misra dictating the order for nearly an hour after 3 p.m. The other Justices on the Bench were Justice Prafulla C Pant and Justice Amitava Roy.

Yakub’s counsel, Raju Ramachandran, brought to the knowledge of the Court at the outset that he had filed a separate writ petition challenging the validity of the rejection of Yakub’s curative petition on July 21 on the ground of the composition of the Curative Bench, which he said, was not in consonance with the Supreme Court Rules. He said a separate petition was being filed because it was not raised in his original petition. Justice Dipak Misra said it was just a technicality, and that it did not matter.

On the composition of the curative Bench, Ramachandran said his argument is well articulated in Justice Kurian Joseph’s order delivered yesterday. He pointed out that after the dismissal of Yakub’s review petition by a three-Judge Bench following a open court hearing on April 9, 2015, the Jail Superintendent informed Yakub that he was entitled to file a curative petition, and a clemency petition before the Governor and the President.

According to Ramachandran, had the TADA Judge, while writing the death warrant on April 30, heard Yakub, he could have told him that he would be filing his curative petition, and therefore, its outcome must be awaited before the death warrant is signed. Non-hearing of Yakub at the time of signing the death warrant was a serious violation of his rights, as per the Supreme Court’s decision in Shabnam, he said.

When the AG pointed out that Shabnam decision was given in May, and therefore, it could not have retrospective application, Ramachandran said the Government after Shabnam could have approached the TADA Court to reissue the death warrant by following the proper procedure prescribed in Shabnam.

“Death warrant was signed behind my back,” was how he put it.

Ramachandran also argued that the judicial process was complete only on July 21, when the Supreme Court dismissed Yakub’s curative petition. Therefore, Yakub could file his mercy petition only after exhausting all legal remedies.

His earlier mercy petition was filed after the Court dismissed his review petition, in circulation among the Judges, before the Court made open hearing by three Judges mandatory in death penalty cases (the Mohd. Arif case).

Therefore, Yakub’s contention was that his fresh mercy petition must be given due consideration by the Governor, as he has raised new grounds in the petition, namely, his suffering from schizophrenia, his good conduct in the jail, and the possibility of reformation. He cited the Central Government’s Memorandum of Procedure, to suggest that fresh mercy petitions from convicts are allowed if they raise fresh grounds.

Justice Dipak Misra, in his order, however, did not consider this within his jurisdiction to examine this issue.

The counsel for the intervener, NLU Delhi’s death penalty project, TR Andhyarujina, said mercy petition is not a matter of grace, but a constitutional right.

He also referred to former RAW officer, late B.Raman’s article, written earlier, which has now surfaced, suggesting that Yakub, after all, did not deserve death penalty, because he probably surrendered to clear his name.

The AG questioned Andhyarujina’s locus in appearing in the matter, and said as intervener, he should not be raising these issues in favour of the petitioner.

At one point, Andhyarujina asked the AG not to ridicule the rights of the death-row convict, even as he is trying every legal opportunity to avoid the gallows. This was in response to the AG’s repeated question as to how many mercy petitions that Yakub could be permitted to file.

On the question whether a curative petitioner can raise new grounds, the AG said he can’t. The Bench, however, did not deem it necessary to go into this issue.

The AG made much of the fact that Yakub did not file a curative petition after the dismissal of his first review in circulation among the Judges in 2013. To this, Ramachandran’s response was that had he done so, he would have lost the opportunity to be heard again on review in an open court following the Mohd Arif judgment which came as a boon or a bonanza to him.

Arif himself, by filing a curative petition after the dismissal of the review by circulation, lost the opportunity to be heard again on review in an open court.

More importantly, Yakub himself was a petitioner in the Arif case, and unlike Arif, he did not rush to file a curative after the dismissal of his first review petition, because he thought it was a very limited remedy.

This point, however, was not answered by the AG. The bench too was not keen to go into this issue, to determine whether Yakub’s grievance that his death warrant was issued before his curative could be heard was valid.

On the mercy petition, the AG’s stand is that a convict can file mercy petition any time, not necessarily after exhausting all legal options, and once moved, mercy is exhausted. The Bench, in its order, did not go into the question whether the AG’s claim is valid. Perhaps the bench agreed with the AG’s contention that mercy petition is not a matter of adjudication before the Court.

When the AG referred to the 1993 bomb blasts and Yakub’s role in the conspiracy, Andhyarujina reminded the Court that they were not going into the merits of the matter, and therefore, such issues were not relevant.

Even as Justice Dipak Misra began to dictate the order of dismissal of Yakub’s petition soon after hearing the arguments from both the sides, the question whether the Bench could apply its mind fully to the various contentions raised by the counsel since morning, remained uppermost in the minds of the listeners.

Was it all necessary for the Bench to deliver a verdict in this case so soon after the completion of the arguments, when significant issues concerning the administration of death penalty were raised, but brushed under the carpet without any clarity at the end?

Did the Bench not have the option to reserve the Judgment, and delay Yakub’s hanging, by staying the death warrant?

Only the memoirs of the three Judges who sat on the Bench could answer this question fairly.

IANS Reported:

Curtains may have come down on the legal battle of 1993 Mumbai serial bomb blasts convict Yakub Memon as the Supreme Court today dismissed his petition that sought a stay on his execution slated for July 30.

“Issuance of death warrant cannot be faulted with,” said the apex court bench headed by Justice Dipak Misra, while rejecting Memon’s plea.

Pronouncing the order, Justice Misra said, “we don’t find any legal fallacy” with the issuance of death warrant by the TADA court on April 30.

The court order came after a day-long hearing on the petition by Memon and also a reference by two judge-bench on the appropriateness of another bench that had heard Memon’s curative petition and rejected it on July 21, 2015.

This reference was made following a split verdict between Justice Anil R Dave and Justice Kurien Joseph on Tuesday.

Dealing with the reference, the court said that the curative petition that “was decided by the three seniormost judges cannot be regarded as void or inappropriate” in context of the principle that was laid down by this court in an earlier judgement famously known as Hurra case.

“Thus, we disagree with the views expressed by Justice Joseph at this juncture,” the court said, holding that “dismissal of curative petition by the three seniormost judges has to be regarded to be correct and not vitiated by any procedural irregularity”.

Without saying anything on the second mercy petition moved by Memon before the Maharashtra governor after the rejection of his curative petition by the apex court on July 21, the court brought an end to the legal battle being waged by Memon challenging his death sentence.

Memon and 11 others were slapped with the death penalty by the special TADA court in July 2007 for the 1993 bomb blasts in which 257 people were killed and 712 were injured.

Meanwhile, Maharashtra Governor CV Rao on Wednesday rejected death row convict Yakub Memon’s plea for clemency.

Maharashtra prepares for execution tomorrow morning

After the rejection Memon's pleas by the Maharashtra governor, the state government is now gearing up to execute him at 7 a.m. on Thursday in Nagpur Central Jail (NCJ).

The state government has deployed additional security in and around the NCJ premises, outside Memon's residence in Mahim and other sensitive spots across the state to prevent any adverse fallout of the execution.

Director General of Police Sanjeev Dayal and Mumbai Police Commissioner Rakesh Maria met Chief Minister Devendra Fadnavis shortly after the Supreme Court verdict and the governor's decision in the matter.

Governor CV. Rao on Wednesday rejected Yakub Memon's plea for clemency, shortly after a three-judge bench of the Supreme Court rejected his appeal filed before it earlier this week.

This paved the way for Memon's scheduled execution on Thursday - ironically on his 54th birthday - for his role and conviction in the March 12, 1993 Mumbai serial blasts case.

Commenting on the latest developments, Special Public Prosecutor Ujjwal Nikam said there were no legal hurdles now to give effect to the death warrant issued against Memon.

A police constable, who also doubles as a professional hangman, arrived in Nagpur earlier this week to finalise the preparations for the high-profile hanging.

Memon's family members, including his wife and daughter, two brothers and other relatives, are in Nagpur for a final meeting with him.

As per the procedure, on Thursday morning, Memon will be permitted a bathe, wear fresh clothes and offer prayers.

Later, he will be given a breakfast of his choice, undergo a final medical examination, and given full information on why he is being hanged, before he is taken to the gallows.

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