The question of life and death and the validity of judicial proceedings divided two judges of the Supreme Court on Tuesday and they left it to the Chief Justice of India to set up a larger bench to decide whether 1993 Mumbai serial blasts convict Yakub Memon’s execution requires a re-look.
The stark difference of opinion became evident when Justices Anil R Dave and Kurian Joseph did not have an agreement even on staying Yakub’s execution by a day, scheduled for Thursday.
In his order, Justice Joseph said he was staying Yakub’s execution till further orders, but when he asked Justice Dave if a “common order” could be passed, the latter flatly refused to stay the death warrant.
Since no common order formally staying the death warrant was passed, Yakub’s counsel rushed to CJI H L Dattu, who said the case will be listed for hearing on Wednesday before a three-judge bench.
There was high drama in court hall three of the Supreme Court as Justices Dave and Joseph differed with each other, virtually on every aspect of the matter and passed dissenting orders, necessitating a larger bench.
Justice Dave said they were “passing the buck” to the CJI and also to the lawyers who wanted to protect Yakub, and that it was now for them to decide. Looking at Yakub’s counsel, senior advocates T R Andhyarujina and Raju Ramachandran, he said: “I hope you know who you are trying to save.”
Justice Dave also recalled verses from Manusmriti, considered to be the code of conduct and laws for Hindu, to state that the king, who has to be a saint himself, must punish the sinners or the sin will fall on him and that a ‘danda’ (stick) has to be used for those who inflict cruelty on the innocent. Even after the order was passed and the bench started hearing another case, Justice Dave remarked that the “concerns in the other case appeared to be for a person who killed 257 people.”
But Justice Joseph had this to say: “Nothing can stand in the way of life of a person. Life is a constitutional right. Law is not helpless and this court is not powerless to protect the right to life. Law is for the man and if it is about the life of a man, no technicality can prevent this court from passing appropriate orders.”
He said no life can be taken away without obdurate compliance with the procedure established by law but in Yakub’s case, there was a “procedural violation” since the two judges who had heard his review petition – Justices J Chelameswar and Joseph – were not part of the bench that dismissed his curative petition on July 21.
The curative petition was rejected by a bench comprising the CJI, Justices T S Thakur and Dave, as three senior-most judges are involved in all curative petitions.
Writing the orders, Justice Dave pointed out the “gravity of the offence” and said the argument that Yakub’s curative petition was not heard properly did not appeal to him. In his order, Justice Joseph, however, said that the “defect” in hearing the curative petition needs to be corrected first since it amounted to violation of Yakub’s right to life.
Appearing for the Maharashtra government, Attorney General Mukul Rohatgi resisted any indulgence to Yakub and told the court: “You are only delaying the inevitable. The fact is that this man has to go to the gallows and it cannot be doubted today. We also have respect for human life but the other side is that 257 people were killed. It cannot be argued that this man was not involved.”
According to Rohatgi, no change in circumstances can warrant an interference by a court once a death penalty has been upheld by the main judgment and maintained in review and curative petitions.
“Even if a man goes mad after dismissal of the curative petition, nothing can be done. No writ petition can be filed against the orders of this court, otherwise there will not be any finality,” he said.
Referring to the 1993 blasts, Rohatgi said even if a death warrant is quashed today, it can again be issued three months later.