The Supreme Court’s decision to set up a three-member bench to hear Yakub Memon’s plea against his death sentence is very welcome. The apex court was pressed to take this step after the two judges who heard Memon’s writ petition seeking a stay on the execution failed to agree on a common order on Tuesday. One of them, Justice Kurian Joseph, found merit in Memon’s claim about procedural flaws in his sentencing and held that an execution of the sentence without curing the flaws would be “a clear violation of the right to life of the convict”. This is a substantive argument, and the fact that the bench was so deeply divided means that the larger bench should address the issues raised rather than rush to a judgment. Execution should not have a deadline.
The bench flagged two issues that could have a bearing on Memon’s sentence — and on the execution of death sentences in future. Justice Joseph felt the procedure laid down by the apex court on the hearing of the curative petition was not followed when Memon’s plea was dismissed on July 21. In 2002, the court had said a curative petition should be heard by the judges who gave the main judgment and ruled on a convict’s review petition. This procedure was not followed in Memon’s case. The bench also observed that though the appropriate stage for filing a mercy plea before the president and the governor was after the convict had exhausted all legal remedies, the president had rejected Memon’s plea at a time when the judicial process was far from over. Memon’s counsels have argued that the TADA court, which issued the death warrant, did so before their client could explore all his legal options. Besides these procedural issues, which the new bench will address on Wednesday, compelling questions have been raised in recent days in the public domain that call for a relook at the case. A 2007 testimony of the late B. Raman, a key figure in the operation that secured the custody of Yakub Memon, rev-eals that “some mitigating circumstances in the case of Yakub Memon… were probably not brought to the notice of the court by the prosecution and that the prosecution did not suggest to the court that these circumstances should be taken into consideration while deciding on the punishment to be awarded”. Memon had cooperated with investigating agencies in cracking the conspiracy that resulted in the 1993 blasts. Today, eminent citizens have sought a commutation of his death sentence.
The plea for leniency is compelling in the context of the new information. A closure in the blasts case is necessary, but equally, justice must be done at all costs. Taking the life of an individual should not be dictated by deadlines.