“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.
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Outcomes matter, not the fact that a mere hearing took place at night. The nature of the hearing was unsatisfactory as no discussion took place on merits or sentence.
With this headline, LI is pacifying the bloodthirsty mob outraging over the use of killing to describe the taking of life of Yakub Memon.
Indira Jaising who I sometimes admire tweeted on Wednesday evening the following
"My Lord Justice Mishra, you once said personal liberty is in ICU, now shall we say to you ,justice is in ICU?"
(a) Where were these 'eminent citizens' when his mercy petition was filed the first time? These habitual signatories come only when the case is in the limelight to extract their seconds of glory.
(b) People may be morally or for other reasons opposed to death penalty and I respect that. However, to make a terrorist martyr out of it is completely unacceptable and rubbish.
Time for intellectuals to also introspect.
Abolition of Capital Punishment as a whole is a different topic altogether, however till the time it exists in statutes, we have to accept that as a pinch of salt.
its rightly said people looking for seconds of glory can go to any level for proving themselves right.
So you cannot meet my arguments on merits and would instead have LI censor me.
And as last resort, you accuse me of going to any level seeking seconds of glory ... now that's a mature response, one that makes so little sense that I am sure I do not need to rebut it.
That is one of the most fundamental tenets of a liberal democracy.
If you want to give up that right or stop others from employing it, then you should consider why you wouldn't want to live in North Korea or China.
Quoting kianganz:
No body is stopping anyone from critically analysing the judgement, there lies a difference between critical examination of Judgement or critising the Courts, People, Parliament and degrading the sanctity of all these institutions.
Just saying ...
wonder if you know the diff between a "criticism" and "cursing"
I merely called those baying for Yakub Memon'sblood - blood-thirsty, a descriptive.
You unleashed a volley of abuse and recrimination towards me. And you keep changing your position.
Go waste someone else's time.
if discussion is about "Abolition of Death Penalty" than we have to appreciate both for and against views (which is basic tenets of holding a debate, with out becoming emotional thrusting your views on others)
If We are discussing YM Menon Case; being a law professional lets discuss the whether the due process being followed or not..
Don't mix two things like those 150 signatories who popped up from nowhere, to exploit the issue for coming into limelight.
Hence, i would want you to enlighten all of us too.
Can you please make all this available in the public domain, in an easily downloadable format say on google drive with open access to all.
I will then be really interested to read all this.
slow clap fast clap slow clap fast clap
Here are few points which I am quoting from your comments in another article:
1. "Its unfortunate that Yakub Kasab might be killed tomorrow in a cruel and inhumane manner - a cruel and inhumane punishment for whatever he did or did not do. ."
2. "His exact role remains unclear"
3. " I am not convinced about Yakub Memon's exact guilt."
Hear Kian and other people!
I am unconvinced as are several others including former SC judges and senior lawyers, politicians, journalists, many many others.
And I am not a moron to blindly accept the "official" verdict in a patently flawed trial as the truth.
And neither are many others.
So why don't you put the relevant material in the public domain that was used to murder Yakub Memon.
The fact is that the material you refer to has been actively suppressed from the public domain.
www.legallyindia.com/Bar-Bench-Litigation/the-last-judgment-maharashtra-kills-yakub-memon-4th-execution-in-15-years
www.legallyindia.com/Bar-Bench-Litigation/jaising-bhushan-ors-ask-cji-to-defer-memon-hanging-with-hours-to-go-after-prez-shows-no-mercy
www.legallyindia.com/SCOI-Reports/end-of-road-sc-disagrees-with-kurien-joseph-j-dismisses-yakub-memon-s-plea-to-avoid-tomorrow-s-noose
www.legallyindia.com/SCOI-Reports/justices-joseph-dave-delay-the-inevitable-can-t-agree-on-killing-yakub-constitution-bench-to-step-in
www.legallyindia.com/SCOI-Reports/scoi-report-28-july-2015
www.legallyindia.com/Bar-Bench-Litigation/sc-to-hear-yakub-memon-s-death-penalty-plea-on-monday
www.legallyindia.com/Bar-Bench-Litigation/allegedly-unprofessional-spp-ujjwal-nikam-hails-sc-s-confirmation-to-kill-yakub-memon
www.legallyindia.com/Bar-Bench-Litigation/india-to-kill-4th-human-in-15-years-yakub-memon-to-hang-on-30-july-subject-to-review-petition
But you are merely wasting my time.
First of all, kindly note, you are free to putforth your perspective however that should not mean disrespecting contradictory views or demonizing other people by your sordid comments..
Assuming you are an advocate it is expected that you know, Freedom of speech does not entail, in its widest sense, freedom to utter any nonsense about anyone. criticise things on basis of law, not what you fees law should be....
you cannot hide fallacies in your argument by abusing others.
Cheers, hope Kian will give opportunity .
Mark Twain
The defenders of the death penalty, especially some lawyers who will try everything to shut down voices that question the injustices of Indian law in action, are an example of the above quote.
www.ndtv.com/india-news/yakub-kept-repeating-he-was-hanging-for-his-brothers-sins-lawyer-1202382
RIP Yakub Memon
[...]
(b) You entire analysis is based on your reading of few news articles and secondary hearsay statements. If you are making such strong statements, I would urge you to please make yourself fully aware of the facts of the case as well the judgment of the TADA court. You CANNOT blame the judiciary based on your knowledge of spiced up news articles.
(c) You may be opposed to capital punishment and your opinion/ view-point is completely yours and all should respect it. But till the time this does not become law please bear in mind that for heinous crimes and 'rarest of the rare' cases- there will be capital punishment and if you dont like please start a movement against capital punishment and gather like minded people to bring about this change.
(d) You say Yakub Memon insisted on his innocence. The trial ran for almost 14 years- he had ample opportunity to prove his innocence. Assuming for a second that he was not actively involved in the blasts- I (along with the TADA court) refuse to believe that he had no knowledge of the blasts being planned. This makes him a co-accused. If he was as righteous as he claims to be when he was sentenced to the gallows- why did he not speak up before the blasts. If he did not have the spine to stand-up then (in 1993) then this spine was snapped from the beginning.
[...]
(f) the judiciary gave him all the options to prove his innocence and it will be a black spot on the Indian judiciary if this judgment is ever cited as a precedent to argue abolishing capital punishment.
(g) I have sympathy for Yakub's wife and daughter because they will now be banished by the society but without disrespect to the departed- he was given a fair trial and if you are a lawyer- you will know that you are not guilty until proven. Please dont add or harp about a political vendetta because Yakub was being tried for almost 20 years and many governments came to power and left. This is probably one of the few cases which was not politically influenced.
(h) It is very easy to sit in your plush home/ office and comment RIP Yakub but the fact of the matter is that since that black Friday neither Yakub nor any of the other were able to rest in peace (whether dead or alive).
(i) I have full faith in our executive and judiciary- all those waging war against our country (regardless of their religion, caste, creed) will be bought to justice be it Sadhvi Pragya for Malegaon or Dawood for numerous offences.
The lawyers both prosecution and defense did a great job (Rishabh is personally known to me) affording both the sides equal opportunity to prove their case and at the end justice prevailed.
I dont wish to engage in further discussions on this point. Atleast as a tribute to those who lost their lives on 12 March 1993 and the families that continue to suffer till date- please voluntarily remove all your posts and comments.
Fare well.
I stand by all my comments and frankly have no time to waste in engaging with you here.
The truth always wins and will emerge in this case too one day.
Meanwhile RIP Yakub Memon. A gross injustice has taken place. And this is an injustice even to those who lost their lives in the 1993 bomb blasts.
[...]
And then you lie that my "entire analysis is based on your reading of few news articles and secondary hearsay statements". You appear to have an agenda to defend the State in the Yakub Memon saga.& you have no qualms misrepresenting facts.
Also read my tweets at @SeemaSapraLaw
I reiterate that like many other people including retired SC Judge Katju, I remain unconvinced that Yakub Memon was guilty of all that he was convicted for or that he deserved to die.
And its shameful that our government is still implementing the death penalty and that a man was killed just before 7 am by the Indian state yesterday morning.
We won't be publishing any further comments on this thread for a while unless they make legitimate legal arguments and do not contain personal attacks or counter-attacks or allegations.
Thanks
Kian
As for media hungry, drawing politicians and hungry to grab media light all I can say live for another day.
1. why did SC refuse to consider Raman's statement? what was the basis for disregarding that?
2. Kode claimed on TV that YM did not put forth his exact circumstances of arrest/surrender. In fact he testified that he went to dubai before the blasts and could return back to India only after 1 year due to 'unavoidable circumstances'.
Even Messiah's article states that he did not provide the details or use the theory of his surrender in his defence.
Now, if YM does not help himself- how can someone else help him?
3. what I understand is that he was now claiming the benefit of being an "approver", but in legal terms there is a very specific definition of "approver",in which the accused has to provide 'true and complete' information. YM did not qualify to be one.
4.Does RTI allow access to the chargesheets,witnesses,sentencing,etc? It will be worth understanding what precise evidences helped establish him to a conspirator (movie director as per nikam, or 'driving force' as per judge, or bow/archer, etc).
Kindly enlighten me on above points.
2. Since I haven't seen these interview I cannot comment. However, on a larger issue Yakub was represented by leading lawyers in both TADA Court and SC Court- All Senior Counsels. Not once they made any representation that he came to India "on his own to clear his name". Moreover, even if takes this ground there is no reason for any Court to consider this as an mitigating circumstance.
3. Who becomes an Approver is the sole prerogative of the prosecution. You cannot commit crime and then become approver to escape punishment. Moreover, prosecution takes the help of approver to ensure that the mastermind get punished and not the other way round. This criminal conspiracy had several mastermind- Dawood, Tiger, ISI and Yakub among others.
4. With respect to charge sheet it is a public document under RTI Act. Read judgment here rti.india.gov.in/cic_decisions/CIC_DS_A_2013_001754_M_141713.pdf. However, under Section 8 due to sensitive nature of the case exception may be claimed by the prosecution.
Thanks YoYo for the detailed response.
On 1. i guess there is no doubt that he was arrested, but he was contemplating a surrender, and also carried evidence such as audio/video, is perhaps something to consider. How else one can explain his family's return to India (when he was arrested)? It is most likely that he got "off the record" assurances (from RAW/CBI) that he would be dealt with lightly, which prompted him to get his family back.
indiatoday.intoday.in/story/bombay-serial-blasts-search-on-for-bombay-12-member-memon-family/1/302029.html
If you read about the history of this family, it may not be hard to conceive that potentially every member of the family could be involved.
On a serious note and with whatever little experience I may have as legal pro, the so call pro bonos appear to be indulging in business development rather than taking up cause of justice. It is indeed saddening that despite fully knowing (or rather 'ought to be knowing')the case history - Charge Sheet, Trial, Witness Examination, Final arguments, Trial court judgement, High Court judgement, Supreme Court judgements, mercy petitions, review/curative petitions et al - these bunch of pro bonos managed to orchestrate a drama that was for sure destined to culminate in execution. Lawyers cannot act like desperate product/services marketing agents who can paster the potential client and get on the nerves. I seriously feel it is these set of lawyers who abused the process of law in the name of due process of law.
you are correct that you have little experience and "whatever" added to it makes more sense . go read shatrughan chauhan. read maganlal barela midnight order. read about sonu sardar. read about shabnam and salim's case. read surinder koli's judgment of Allahabad High Court given after his dismissal of review from the Supreme Court and given by none other than justice Dhananjay Chandrachud. read and enlighten yourself before you go dole out your knowledge of YM's case history - Charge Sheet, Trial, Witness Examination, Final arguments, Trial court judgement, High Court judgement, Supreme Court judgements, mercy petitions, review/curative petitions et al
and before you comment on anybody or their pro bono work and cause of justice pursuits also go to your own work desk and tell us how many pro bono briefs are lying there...
Also, I like your like your choice of name Legal Cigarette against mine Legal BD. Feel sorry that you failed to decipher BD was for Business Development. Rest will be self explanatory to other readers.
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