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SCOI Reports: Justices Joseph & Dave 'delay the inevitable', can't agree on killing Yakub after 2 hours, larger bench to step in

SCOI Reports, 28 July 2015: Yakub Abdul Razak Memon vs State of Maharashtra Through the Secretary, Home Department, and Others.

The proceedings in (W.P. [crl] 129/2015) continued today in Court No.3 at 10.30 in the morning, and lasted for about two hours.

Justice Anil R Dave and Justice Kurian Joseph both gave separate and differing opinions, leaving the matter of reference to a larger Bench, in view of the disagreement between them, to be decided by the Chief Justice of India at 4 p.m.

Justice Dave left the mercy petition submitted by Yakub to the Governor of Maharashtra, to be decided by the Governor, and saw no merit in Yakub’s petition seeking quashing of the death warrant issued against him by the TADA court.

Dave also found nothing improper in the composition of the curative Bench which dismissed Yakub’s curative petition on July 21, agreeing with the AG that the curative petition is only against the main judgment, and not the review judgment, and if Judges who delivered the main judgment have retired in the meantime, then only the three senior-most Judges alone could hear and decide the matter.

Justice Kurian Joseph, on the contrary, took the view that the curative petition was not decided in accordance with the rules prescribed, and the ‘procedure established by law’ as mentioned in Article 21 stood clearly violated.

He referred to the AG’s contention that the issue was not raised in Yakub’s petition before the Court, (AG said there was no whisper of this ground in the petition) and said such a technicality should not stand in the way of justice being done. ‘Supreme Court can’t be rendered powerless’, as he put it. He, therefore, held that the curative petition must be heard afresh according to the rules.

Earlier, Raju Ramachandran argued that as the curative petition is filed only after the review decision is delivered, it cannot refer to the judgment in the main case. In my curative petition, I am complaining that review was wrongly dismissed, he contended.

Therefore, to exclude two Judges (Justice Chelameswar and Justice Kurian Joseph) who were essentially part of the review process, from hearing my curative petition would amount to injustice, he argued.

Counsel Anand Grover, also arguing for the petitioner, read from the Court’s judgment in Mohd Arif (which held that review petitions of death row convicts must be heard by a Bench of three Judges in open court), to strengthen the argument that original Judges who heard the review petition must be part of the Bench which hears the curative petition.

In review petition, error apparent on the face of the record has to be found. As in curative, same grounds are agitated, the same Judges must be called upon to rectify the error, he suggested. He also argued that death penalty matter cannot be decided by circulation among the Judges, and if there is an error in the procedure, as required in Article 21, then the error must be rectified by rehearing it.

In response, the AG claimed that no writ under Article 32 is maintainable in the matter, and that it is a settled law. According to him the phrase ‘judgment complained of’ in the Supreme Court Rules dealing with curative petitions can only be the main judgment, and not the review judgment. The Chief Justice, he said, is the master of the roster, and no party can claim he or she should have three or five Judges to hear the case. Raju Ramachandran’s reply to this was that as master of roster, the CJI is also bound by the rules of the Court.

Quoting from the Rupa Hurra vs Ashok Hurra case (10 April 2002), the AG said it envisaged only two grounds for a curative petition to be heard, namely, denial of natural justice and an allegation of bias against any of the Judges who heard the case. “You can’t say Judges don’t apply their minds in chambers”, he told the Bench.

To this, Ramachandran replied that the Supreme Court has the inherent power to correct, and it can’t restrict itself to two most obvious grounds. “The curative petition is a special procedure devised by the Court to correct judicial error, as it is not contemplated in the Constitution. Can it be argued that it is restricted to two grounds? That can’t be”, Raju Ramachandran explained.

More important, Justice Kurian Joseph countered the AG’s claim that no new ground can be raised in a curative petition. When Justice Joseph said ‘miscarriage of Justice’ can certainly be a ground, the AG denied that it is available. It will open a Pandora’s box, he cautioned. There can’t be a doubt, after exhausting all remedies, he contended. The Supreme Court can’t sit in appeal once the judicial process is over, he said.

When Justice Kurian Joseph asked what is the punishment for conspiracy, (as Yakub is convicted for conspiracy, which his lawyers claimed does not carry death penalty as the punishment) the AG said the Bench can’t raise this issue now.


The Indian Express’s Utkarsh Anand tweeted @utkarsh_aanand: >#Yakub Attorney General Mukul Rohatgi tells SC: “You are delaying the inevitable..this man has to go to gallows.”

“Law is not helpless & this court is not powerless to protect right to life” J Jospeh as he cites procedural flaw in judicial process.

No formal order on staying Yakub’s execution as two judges don’t agree on a common order to stall it.

IANS reported

Supreme Court judges Anil R Dave and Kurien Joseph on Tuesday took differing stands on 1993 Mumbai serial blasts convict Yakub Memon’s plea challenging his death penalty and urged the chief justice to set up “an appropriate bench” to hear the case.

Recounting the sequence of the court proceedings from 1993 till the curative petition was dismissed on July 21, 2015, Justice Dave dismissed Memon’s plea.

But Justice Kurien found fault with the composition of the bench which heard the curative petition, and stayed the operation of the death warrant issued by the TADA court on April 30.

Memon was to hang in Nagpur on July 30.

Justice Kurien said the case should be re-considered after constituting a bench in accordance with Supreme Court rules.

The judges referred the matter to Chief Justice HL Dattu.

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