Uncertainty continued today over whether Yakub Memon, the sole 1993 Mumbai blasts convict on death row, will be hanged on July 30, with the Supreme Court asking Attorney General Mukul Rohatgi to clarify tomorrow the rules relating to curative petitions, the last judicial remedy in law.
A division bench comprising Justices A R Dave and Kurian Joseph asked Rohatgi to present before the court the relevant rules and scope of curative petitions before it decides on Memon’s plea seeking a stay on his execution.
While Rohatgi was of the view that all judicial remedies available to Memon got exhausted with dismissal of his curative petition on July 21, senior advocate Raju Ramachandran, appearing for him, claimed correct procedure was not adopted by the court in dealing with his curative plea.
Ramachandran said not only the death warrant was issued during the pendency of the curative petition, Memon was also not given an opportunity by the TADA court to explain whether he had exhausted all available legal remedies. He also deprecated the delay in informing Memon about the date of his proposed execution which was conveyed to him on July 13.
“The TADA judge gives him 90 days notice for execution but the state government gives notice of only 17 days. The state government’s order is premature,” he said and added, “the challenge is to the issue of death warrant issued on April 30 which is completely arbitrary to the law laid down by this court.”
Memon got support from Death Penalty Litigation Clinic, associated with the National Law University, Delhi, with its senior advocate T R Anndhyarujina also making similar arguments seeking stay of execution of the death warrant.
Justice Joseph appeared to share the views of Yakub Memon’s counsel when he said perhaps due procedure was not followed.
He said the curative plea, after going to the four senior-most judges of the apex court, should have also gone to the bench which last heard the matter confirming his death sentence in a review plea on April 9, 2015.
Rohatgi, who said he was appearing for CBI, Maharashtra and the Centre, initially sought some time to respond to the Memon’s petition, but realising that the bench was ready to hear it, contended that the convict had exhausted all legal remedies available and that his mercy pleas have also been rejected by the Maharashtra Governor and the President.
Justice Kurian also raised the issue of various stages in such cases and procedures that are followed by a convict on death row, including approaching the Governor and President for mercy.
“What is the stage of going with the begging bowl,” he wanted to know.
“Mercy is only with open hands,” the judge said, adding “it is a constitutional process” and agreed with the Attorney General that it has nothing to do with the judicial process.
“You go for mercy when all your legal rights are exhausted,” the bench observed.
While Rohatgi was making his submissions, elaborating on the sequence of events leading to the present state of affairs in the case, Justice Kurian raised a volley of questions on curative petitions and asked,”what is the process of curative petition”.
Rohatgi stressed any issue arising in the case has to be seen in the light of the original apex court judgement of March 21, 2013, upholding the conviction and death sentence awarded by the TADA court in 2007 as “facts cannot change” and even the plea for mercy or clemency depends upon the “facts of the crime and not on judicial process.”
Justice Dave at one stage said the court “cannot go into the merits. Nothing further is required as everything has been decided.”
The Attorney General revisted the judicial proceeding of the case in the apex court and said after his death sentence was upheld on March 21, 2013, and the first review petition was rejected on July 30, Memon’s brother had approched the President for clemency in the first week of August the same year as the hanging was scheuled for August 14.
During the pendency of the mercy plea, the execution was stayed and his petition was referred to the Governor who dismissed it on November 14, 2013. Later, the President also rejected it on April 11, 2014.