Updated: July 29, 2015 5:59:48 pm
The petition filed by 1993 Mumbai serial blasts convict Yakub Memon for staying his execution took a curious turn today with the Supreme Court questioning its own mechanism by which it had dismissed his curative petition exterminating his final legal remedy.
A bench of Justices Anil R Dave and Kurian Joseph wondered why all the judges who had heard Yakub’s review petition were not part of the bench, which rejected his curative plea on July 21 even though all such judges were available.
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A three-judge bench comprising Justices Dave, Joseph and J Chelameswar had in April dismissed Yakub’s review petition in open court proceeding after noting: “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, his curative petition was heard by a bench comprising Chief Justice H L Dattu and Justices T S Thakur and Dave. Justices Chelameswar and Joseph were not part of the bench which nixed Yakub’s curative petition after examining it in judges’ chambers.
On Monday, the bench underlined that the Supreme Court rules and its judgment in Rupa Hurra’s case in 2002 had laid down that a curative petition should preferably be heard by the judges, who had delivered the main judgement.
At this, Attorney General Mukul Rohatgi, who opposed any indulgence to Yakub on behalf of the Centre and Maharashtra government, said: “But in this case, the two judges who delivered the main judgment have retired.”
“Does not that make it all the more necessary that all the judges who heard the review petition and were acquainted with the facts of the case should have heard the curative petition? Is it not proper for such judges to hear the case? But in this case, such judges don’t get to see the papers at all,” retorted the bench.
Justice Joseph observed that a curative petition should ideally come to those judges who had heard the review petition and had the opportunity to assess the evidence and questions of law involved.
Seeking a clarification from Rohatgi on the rules to be followed by SC judges for deciding curative petitions, the bench also questioned why a convict cannot argue a fresh reason for commuting his punishment if that can serve the ends of justice.
“Suppose a convict says I have served 20-30 years in jail. Why can he not argue this as a ground for commutation? The grounds filing for a curative petition in the Rupa Hurra case is not exhaustive and this court is empowered to issue orders in the interest of justice,” said the bench. But Rohatgi opposed it by saying that a curative can cite only two grounds – violation of the principles of natural justice and a possible bias of the judges. He was asked to revisit this argument and revert on Tuesday when the court resumes hearing.
Further, the bench delved on what should be the appropriate stage for filing a mercy petition before the President and the Governor, and observed that the correct stage appears to be only after a death row convict has exhausted all his legal remedies.
Yakub’s mercy petition was rejected by the President in April 2014 whereas the judicial process continued till July 21 this year when his curative plea was dismissed. The bench also questioned why the President sought the Maharashtra Governor’s opinion on Yakub’s mercy plea though the two were independent authorities under the Constitution for deciding clemency.
But Rohatgi said these issues did not have to be gone into since Yakub has challenged only the validity of his death warrant. “He (Yakub) has exhausted all his legal remedies and there has to be a finality now. No court can touch this court’s judgment finding him guilty and sentencing him to death. Now, he cannot be allowed to keep filing petitions after petitions to delay it,” he said.
Arguing against the validity of the death warrant, senior advocates T R Andhyarujina and Raju Ramachandran listed out the dates to show there was no delay on Yakub’s part to file a curative petition but the TADA court issued the death warrant in haste without waiting for him to avail the legal remedy. They also said that Yakub was in agony and that the government was not right in hurrying into a question of life and death for a person.
At this, Justice Dave said: “Let his agony end then..but can we allow him to keep filing petitions after petitions?” The bench then adjourned the case for Tuesday when it will also take up a plea for staying Yakub’s execution scheduled for July 30.
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