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‘Man died, justice lived’: How a group of lawyers opened the SC’s doors in the dead of night but failed by dawn [READ YAKUB WRIT & MERCY PETITIONS]

SC: Before sunrise
SC: Before sunrise

“Hope died, man died, justice lived,” commented Rishabh Sancheti, one of Yakub Memon's advocates, about the early-morning, eleventh hour Supreme Court hearing that ultimately failed to save his client from the noose.

“Justice lived, in terms of not the very outcome, but the process, the final court affording one final chance, at the very final moment,” he added. “Have you (heard) it happen in any other country?”

Lawyers representing Memon, the convict who was hanged to death at Nagpur central jail yesterday morning, had approached the registrar of the Supreme Court for an urgent hearing at 8:30pm on Wednesday night.

They were waiting anxiously with their petition and hoped that they could convince the Supreme Court to delay the hanging until Memon had exhausted every single one of his legal rights.

According to the Supreme Court Rules, any urgent application was to be filed with and scrutinised by the vacation registrar. Yakub’s final petition was filed by Sancheti and Advocate-on-Record (AOR) Anindita Pujari with the vacation registrars between around 8:20 and 8:45pm on Wednesday, 29 July.

Until 10pm they awaited instructions at the Supreme Court but then decided to go to the Chief Justice of India’s (CJI) residence at 5 Krishna Menon Marg’ where there was a huge crowd of media persons and the area was cordoned off by the police. Even water was not available, recounted Sancheti.

Around 1:30am, the group of more than 10 defence lawyers received a call from the registrars that the same bench that had heard and rejected Memon’s earlier petition - justices Deepak Mishra, PC Pant and Amitava Roy - had been constituted by CJI HL Dattu to hear the petition.

Memon’s lawyers rushed to the Supreme Court and by about 3:20am the hearing started in court number 4, which too was packed with journalists and lawyers.

Senior advocate Anand Grover with one of India's most seasoned death-penalty advocates Yug Choudhary represented Memon's cause in court, supported by advocates Prashant Bhushan, Vrinda Grover, Paarivendhan, S Prabhu, Nitya Ramakrishnan, Siddharth Sharma and NLU Delhi’s death penalty litigation clinic’s Nishant Gokhale, Maitreyi Misra, Shreya Rastogi, Lubhyathi Rangarajan and Anup Surendranath.

They faced attorney general Mukul Rohatgi, who represented the state.

“It was unprecedented and we were hopeful,” commented Sancheti about the mood amongst the defence team, all of whom had been working pro bono and were exhausted by that point after having been on the run non-stop from around 4pm the previous day.

Arguments

Yakub’s lawyers raised a number of grounds in what would be his last writ petition before the Supreme Court, praying that his impending execution, scheduled for 7am, be delayed until he was given a fair hearing on his mercy petition.

They argued before the court that his right to file a mercy petition and have it decided on its merits cannot be substituted by the filing of a mercy petition by another person on his behalf; Yakub’s brother Suleiman Memon had filed the first mercy petition on Yakub's behalf, which was rejected by the President of India on 11 April 2014.

Rohatgi told Karan Thapar on India Today’s TV channel later that day: “The brother moved the petition on behalf of Yakub, and the very next day, Yakub wrote a letter to the superintendent of the jail pointing out that his brother had moved a petition for clemency to the president and notice must be taken thereof. So, it was as good as his (Yakub) own petition.”

“There is no difference between a petition moved by the brother and endorsed by Yakub or one moved by him,”

Yakub’s lawyers also argued that he had a right to challenge his final mercy petition and to have 14 days after rejection of his last mercy petition, to make peace with God, draft his will and meet his family.

In the petition, published below, Yakub's lawyers urged that he had forwarded to the authorities his first mercy petition on 28 July, which contained entirely new grounds based on fresh materials. According to them, rejection of the mercy plea within a day showed that there was no application of mind and such a decision was unfair and pre-determined.

Lawyer Dushyant Arora, who tweets under the handle @atti_cus, was live-tweeting the progress of the court at night. He noted that Yakub's lawyers didn’t advance arguments on merits or sentence but emphasised the fact that 14 days must lie between rejection of the mercy petition and execution.

They relied on the Supreme Courts’ 2014 judgment in Shatrughan Chauhan v. Union of India, as well as the Maharashtra jail manual, that time must be given to the petitioner from the rejection of his mercy petition.

The attorney general reportedly argued that if the present petition was allowed, this process would continue indefinitely and that new facts would be added at the drop of a hat and the president would be asked again and again for mercy.

Reportedly, the prayer in the petition asked for ‘quashing of warrant’, whereas the validity of the warrant had already been upheld by the Supreme Court earlier the previous day.

The arguments were heard from both sides and the final decision was made at 4:56am. According to ANI News, Justice Mishra observed, “Execution warrant was communicated to Yaqub Memon on 13 July, 2015.”

The court also noted that Yakub never disowned the mercy petition by his brother and any extension of time would be “travesty of justice”.

Yakub was hanged until he was dead at 7am, two hours after the decision of his final petition.

He was the sole person to be executed in the 1993 Mumbai Blast Case.

In the Thapar interview, Rohatgi said that any other decision by the Supreme Court would have been against the “spirit of the law” and that there had to be some finality in this case.

Sancheti, disagreed. “Yesterday night's decision, with [the] greatest respect, is incorrect in law and on facts,” he said. “I think whenever they abolish [the] death penalty in India, they'll cite this case.”

Precedent

This was not the first time that the Supreme Court bench heard an urgent petition in the early hours.

On 7 August 2013 the then-CJI P Sathasivam passed an interim order of stay of execution of Maganlal Barela at around 11:30pm at his residence after senior counsel Colin Gonsalves approached him to suspend the execution scheduled for the next morning.

And on 8 September 2014 a bench of Justices HL Dattu and Anil R Dave, in an order issued under extraordinary circumstances, stayed Surender Koli’s execution in a special bench sitting at 1.30am after having been approached by senior advocate Indira Jaising.

The Supreme Court in recent years has been taking differing approaches towards the death penalty. In Sathasivam's landmark case on 21 January 2014, it commuted the death sentences of prisoners whose mercy petitions were not decided for years as it was held that it amounted to mental torture. This was followed by several commutations, mostly under Sathasivam, relying on this so-called delay doctrine.

This delay jurisprudence, albeit helping prisoners who were languishing on death row, ran the risk that state and central governments would now dispose of mercy petitions quickly, to ensure judicial interference would not take place, feared some death penalty campaigners.

On 27 May 2015, a two-judge vacation bench of Supreme Court justices AK Sikri and UU Lalit confirmed a new exception based on the opposite of delay, relying on the four-month-old death sentence commutation of Surender Koli by Allahabad high court chief justice DY Chandrachud. Sikri and Lalit quashed two death sentences where death warrants had been signed “in haste” only days after CJI Dattu had confirmed the sentences.

As it turns out, neither of those cases eventually helped Yakub Memon or his lawyers, and Thursday's early-morning Supreme Court bench was clearly unwilling to carve out a new way for those on death row to avoid the noose this time.

Writ petition & annexures: Yakub Abdul Razak Menon v State (PDF)

Yakub Memon's Final Mercy Petition (PDF)

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