Days before he could be hanged as the only convict sentenced to death for the 1993 Mumbai serials blasts, Yakub Memon and his family are pinning all their hopes on the hearing in the Supreme Court scheduled for Monday.
A bench of Justices Anil R Dave and Kurian Jospeh will take up a writ petition filed by Yakub, challenging the validity of the death warrant issued against him by a TADA court in Mumbai.
Along with his plea, the bench will also hear Delhi’s National Law University (NLU), which through its Death Penalty Litigation Clinic has intervened in the matter and supported Yakub’s contentions against the death warrant.
It was a three-judge bench, also comprising Justice J Chelameswar apart from Justices Dave and Jospeh, which had on April 9 dismissed Yakub’s review petition after hearing his counsel and the lawyer for the CBI in an open court proceeding over four days.
The order had stated: “All the arguments advanced by the review petitioner have been considered in detail in the judgment which is sought to be reviewed. Hence, we do not find any error apparent on the face of record or any other ground so as to warrant interference in exercise of our review jurisdiction.”
However, when the bench takes up the matter on Monday, what may be weighing on the minds of judges will be the fact that they don’t have to assess the quality of the evidence anymore and it is the authorities’ obdurate compliance with the procedural norms which has to be considered for clemency.
The Supreme Court had in May quashed death warrants of a couple from Uttar Pradesh because the warrants were issued without waiting for them to exhaust the legal remedies of filing review and curative petitions. Describing these as “valuable rights”, the court had then said that a person’s right to life under Article 21 of the Constitution does not end with the confirmation of the death sentence.
“It (right to life) has its basis in dignity of a human life. The basis to the right to dignity also extends to death-row convicts. Therefore, the sentence of death has to be executed with total dignity, and for this, certain rights are outlined and protected,” it had added.
Similarly, in Yakub’s case, the death warrant was issued in the last week of April, days after the top court junked his review plea, but before he could file a curative petition and had an opportunity to be heard in accordance with the law. Yakub’s medical condition is also an important factor that needs to be taken into account by the two-judge bench on Monday.
Former Supreme Court judge H S Bedi has also said Yakub’s is a fit case for the Supreme Court to take suo motu action in the wake of publication of an article written by B Raman in 2007 but made public only after Memon’s curative petition was dismissed on July 21.
Raman, who headed the Pakistan desk in the Research and Analysis Wing (R&AW) when he said he coordinated the operation to bring back Yakub and other members of the Memon family from Karachi, said in his article that Yakub did not deserve to be hanged in view of the latter’s cooperation in the investigation.
In his letter to The Indian Express, Justice Bedi urged the court to take note of Raman’s article and reconsider the suitability of the death sentence for Yakub either by referring the case back to the trial court or by exercising its own powers under Article 142 of the Constitution by which the apex court can issue any directive in the interest of justice.
Further, as per sources, lawyers will also apprise the bench about a fresh mercy petition filed with President Pranab Mukherjee by leaders of various political parties, including BJP MP Shatrughan Sinha and its expelled MP Ram Jethmalani, eminent jurists and persons from different walks of life.
Requesting the President to commute the death sentence, the signatories have said there are “substantive and fresh grounds” that can be considered on merits.
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