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Questions that will not die

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A series of questions are circulating in various circles of law, which raise disturbing issues about how Yakub Memon’s last-ditch efforts to stay his execution were handled.

A week after Yakub Abdul Razak Memon was sent to the gallows for his role in the 1993 Mumbai serial blasts, questions have been raised about the nature of the Supreme Court proceedings leading up to the execution, and the manner of disposal of his mercy plea by President Pranab Mukherjee hours before he was hanged. These had caused unease in legal and judicial circles and refuse to die down.

Questions have been raised on whether President Mukherjee rejected Memon’s mercy plea without proper application of the mind and in haste, considering the fact that there is no deadline for a President to decide mercy petitions.

His predecessor, Pratibha Patil, popularly described as the “most merciful President”, commuted the death sentences of 35 convicts during her tenure. A.P.J Abdul Kalam received 25 mercy petitions, rejected one and commuted another to life. K.R. Narayanan rejected one mercy petition but the execution was later stayed by the Ministry of Home Affairs.

Prominent among the questions to the Supreme Court is why Memon was not allowed 14 days between the rejection of his clemency petition by the President and his hanging on July 30. The hearings in the Supreme Court dominated the week which ended in the execution of Memon.

On July 28, 2015, while dealing with a writ petition filed by Yakub Memon claiming procedural irregularity and violation of natural justice in the issue of a death warrant by a TADA court in Mumbai, a bench of Justices Anil R. Dave and Kurian Joseph disagreed on the latter’s point that Memon’s curative petition was not heard by the Supreme Court in accordance with the mandatory procedure prescribed in Order 48 (curative petitions) of the Supreme Court Rules, 2013.

In the split verdict (http://thne.ws/1K6NSkK) Justice Dave observed in the judgment that “submissions made about the curative petition do not appeal to me as they are irrelevant and there is no substance in them.”

Justice Joseph raised the serious issue that “the procedure prescribed under the law has been violated while dealing with the curative petition and that too, dealing with life of a person.” Staying the death warrant, Justice Joseph observed that the Supreme Court committed a serious procedural violation under Order 48, Rule 4 of the Supreme Court Rules, 2013 by not including all the judges, including him, who had heard Memon’s review petition in the subsequent curative process.

“After all, law is for man and law is never helpless and the Court, particularly the repository of such high constitutional powers like Supreme Court, shall not be rendered powerless,” Justice Joseph noted, asking that the curative petition be heard afresh.

The matter was referred to a three-judge bench led by Justice Dipak Misra and heard on July 29, the eve of the execution. In a day-long hearing which witnessed Attorney-General Mukul Rohatgi calling the convict a “traitor”, the bench held that there was no “legal fallacy” in the issue of the death warrant.

In a judgment delivered at 4.15 pm (http://thne.ws/1IRS631) the court pointed out that the review process is limited to re-examination of the principal judgment of March 21, 2013, which confirmed the death penalty. On the question of validity of the death warrant, the bench held that it was served on Memon on July 13, 2015, giving him “sufficient time” under the law. It pointed out that Memon continued to avail himself of legal remedies even after the warrant was issued. The court acknowledged Mr. Rohatgi’s argument that “this is not a person who has never gone to court”. Hours after this judgment was pronounced, the same night, the President rejected Memon’s mercy petition, triggering another round of litigation, which culminated in the unprecedented pre-dawn hearing at the Supreme Court even as the clock ticked for the condemned man.

In a fresh petition, Memon, through his lawyers, said he had a right to challenge the President’s rejection of his mercy plea, but could only do so if it was formally served on him. He knew only what his counsel knew about the rejection from news reports. With only hours to live, he said he would be deprived of his right to a minimum 14 days to settle affairs and “make peace with God”.

The 14-page judgment (http://thne.ws/1K6NWAY) by the same bench, led by Justice Dipak Misra, said the day’s drill on the Memon case begins again, like a Phoenix rising. Memon has returned to court, it said, to urge for a second lease of life even before the ink had dried on the evening’s judgment. The judgment held that Memon had had sufficient time to make “wordly arrangements” when the “first mercy petition”, filed by his brother Suleiman, was rejected by the President in April 2014. It said granting Memon another 14 days would be a “travesty of justice”.

–Courtesy “The Hindu”