Events which happen for the first time have the potential to bring either glory or discredit to an institution. The Supreme Court’s move to open its gates at midnight on July 29 and conduct proper proceedings by three judges of the court in Court No.4 during the wee hours of July 30 to hear the plea of a death-row convict to stay his death warrant a few hours before his hanging may appear to have brought glory to the institution rather than discredit.
The convict, Yakub Abdul Razak Memon, lodged in the Nagpur Central Jail, was sentenced to death in 2007 by a trial court, and the sentence was confirmed by the Supreme Court in 2013, for his role in the 1993 bomb blasts in Mumbai. Many felt the Supreme Court was going out of its way to respect the human rights of a prisoner on the death row.
But the court’s seemingly benevolent action was in complete disregard of established rules of pleading and natural justice and smacked of a tendency to bow to the pressure of public opinion. It also seemed to treat the deadline set by a lower court for hanging Yakub Memon as if it was sacrosanct.
The decision to hold the hearing of Yakub Memon’s last writ petition in the Supreme Court during the wee hours of July 30 appears to have been deliberate, as hearing the petition at the residences of the judges, as was the practice in such cases earlier, would have resulted in ex-parte grant of stay and issue of notice to the parties, whereas by hearing the matter in the court, they could arrive at a decision faster, with the Attorney-General (A.G.) also being present. The question as to why the court was so keen to avoid a grant of stay of Yakub Memon’s execution and issue of notice in the matter so as to hear his petition on merits remained.
“After all, how long one can wait?” was the phrase repeatedly used by the A.G., Mukul Rohatgi, when Yakub Memon’s counsel before the court sought a stay on his death warrant, which scheduled his hanging on the early morning of July 30, in order to facilitate reasonable application of mind by the court to the issues raised in his petition.
Unfortunately, the phrase used by the A.G. appeared to convey an inexplicable impatience on the part of the government to execute Yakub Memon, even at the risk of non-compliance with the safeguards laid down by the Supreme Court in successive judgments.
In Paragraph 12 of its judgment, delivered after hearing Yakub Memon’s lawyers in the wee hours of July 30, the three-judge bench of the Supreme Court, led by Justice Dipak Misra, said that Yakub Memon’s last writ petition was a clear instance of the manipulation of the principle of rule of law. That a convict is entitled to pursue all legal remedies until he is executed stands rejected by this one bland assertion of the bench.
Mercy petition On August 6, 2013, Yakub Memon’s brother Suleiman Memon filed a mercy petition on his behalf with the President. The President, Pranab Mukherjee, dismissed it on April 11, 2014. During the proceedings before the Supreme Court, the A.G. claimed that with the dismissal of this mercy petition, Yakub Memon had exhausted all the mercy petition options available to him, as he did not dissociate himself from the mercy petition filed by his brother. Therefore, he said, he was not entitled to any relief from his second mercy petition, filed by him with the President on July 28, 2015.
The date of filing of the mercy petition is significant, as a death-row prisoner is entitled to the postponement of the execution of sentence pending the receipt of the orders of the President on the petition, as per Rule II of the “Procedure Regarding Petitions for Mercy in Death Sentence Cases” framed by the Union Ministry of Home Affairs (MHA).
Rule VIII of this procedure clearly states that if there is a change of circumstances or if any new material is available, the condemned prisoner himself or anyone on his behalf may make a fresh application to the President for reconsideration of the earlier order.
More importantly, Yakub Memon asserted in his late night writ petition before the Supreme Court on July 29 that his right to file a mercy petition and have it decided on its merits cannot be usurped by another person, or substituted by the filing of a mercy petition by another person on his behalf.
The only ground on which the Justice Dipak Misra Bench dismissed Yakub Memon’s writ petition on July 30 was that since he did not challenge the rejection of the mercy petition filed by his brother, he was not entitled to challenge the fresh rejection by the President of his own mercy petition, submitted on July 28.
There were reasons why Yakub Memon did not think it necessary to immediately challenge the rejection of the mercy petition submitted by his brother in 2014. He wanted to pursue other legal remedies, which he believed were more substantive than the limited scope available for challenging the rejection of a mercy petition.
In fact, he succeeded in convincing a Constitution Bench of the Supreme Court to accede to his plea that he was entitled for a second hearing of his review petition in an open court by a bench of three judges. His review petition was first dismissed by a bench of two judges in circulation in their chambers.
After the second hearing of his review petition was unsuccessful, he filed a curative petition, which he found, to his dismay, was heard and dismissed by a bench on July 21, comprising three senior judges, only one of whom was in the bench which heard his second review petition. Two other judges who had heard his review petition had not been included. Although the Supreme Court finally did not find merit in his grievance, one of the judges who heard his review petition, Justice Kurian Joseph, found serious infirmity in this omission, and wanted a rehearing of his curative petition in his separate judgment.
In this judgment, delivered on July 28, Justice Kurian Joseph held that as the curative petition was not decided in accordance with the rules prescribed by the Supreme Court, there was a clear violation of Article 21 of the Constitution, which required that while depriving the life of a person, the procedure established by law should be followed.
Echoing another famous dissent almost 40 years ago in a habeas corpus case by a former judge of the Supreme Court, the late Justice H.R. Khanna, Justice Kurian Joseph said that where a procedure established by law was not followed while depriving a person of his life, no technicality should stand in the way of justice being done. After all, the law is for man and the law is never helpless and the court, particularly a repository of such high constitutional powers as the Supreme Court, should not be rendered powerless, he opined. He was responding to the A.G.’s contention that Yakub Memon himself did not raise the issue of the composition of the curative bench. Taking a cue, Yakub Memon’s counsel, Raju Ramachandran, filed a separate petition seeking a rehearing of the curative petition on July 29. But it was of no avail.
Because of the disagreement between Justice Kurian Joseph and Justice Anil R. Dave, who had first heard Yakub Memon’s writ petition on July 28, Yakub Memon’s writ petition was assigned by Chief Justice H.L. Dattu to a three-judge bench comprising Justices Dipak Misra, Prafulla C. Pant and Amitava Roy. This bench, however, did not find merit in Justice Kurian Joseph’s view.
In his July 28 mercy petition submitted to the President, Yakub Memon brought to his attention a new mitigating circumstance pertaining to his return from Pakistan to face trial, which was concealed from the trial court and the Supreme Court earlier. The disclosure was in the form of an article written by B. Raman, then head of Pakistan desk, counterterrorism division of the Research and Analysis Wing (RAW), which was published posthumously on July 24, 2015.
Raman disclosed in his article that “the cooperation of Yakub Memon with the investigating agencies after he was picked up informally in Kathmandu and his role in persuading some other members of the family to come out of Pakistan and surrender is a strong mitigating circumstance which seems to have been hidden by the prosecution in their urge to secure death penalty”.
Yakub Memon claimed in his mercy petition that Raman’s narration had also been corroborated by others in the intelligence community who had first-hand knowledge of the field operations relating to his case. Raman’s story had also been substantiated by investigative journalists, he added.
Therefore, he requested the President to call for all material from the relevant departments, including the RAW, the Ministry of Information and Broadcasting and the Central Bureau of Investigation (CBI), and consider his case afresh. Raman’s article was new material, having a direct bearing on his case and the implications arising from the same favoured his case, he told the President. He further pointed out that this material contained facts that were at variance with the judicial record and therefore, the courts, including the Supreme Court, had not had an opportunity to consider the same.
Yakub Memon pointed out to the Supreme Court in the wee hours of July 30 through his lawyers that it was not possible to consider these new grounds in less than one day of the mercy petition being filed. In the normal course, the Ministry of Home Affairs (MHA) prepares several detailed notes which are carefully considered by different officers in the bureaucratic hierarchy before being approved by the Cabinet and sent to the President.
Yakub Memon also brought to the notice of the Supreme Court that the court had held in Shatrughan Chauhan vs Union of India last year that a death-row convict cannot be hanged in less than 14 days after the rejection of his mercy petition is communicated to him. The court held such a position because a convict needed time to legally challenge the rejection of his mercy petition.
Yakub Memon also brought to the President’s knowledge that he was suffering from schizophrenia, which is a serious mental illness, and that he was under solitary confinement. In Shatrughan Chauhan , the Supreme Court had held that both these grounds were supervening factors which allowed a prisoner’s death penalty to be commuted to life imprisonment.
According to Siddhartha Sharma, a lawyer who was closely involved in helping Yakub Memon pursue his legal options, solitary confinement, mental illness and procedural impropriety are three circumstances which have been invoked by various death-row convicts to successfully challenge rejection of their mercy petitions by the President by filing writ proceedings before either the High Court or the Supreme Court (See box).
Judicial review remedy is a pretty standard, dependable and substantive option available to death-row convicts, and several of them have resorted to interim stay granted by the courts once their mercy petitions were rejected; Yakub Memon only sought time to challenge the rejection of his mercy petition by the President so that he could invoke the grounds which other death-row prisoners had availed themselves of, Sharma pointed out.
The Supreme Court must introspect why it was not willing to extend to Yakub Memon the privileges it had granted to other death-row prisoners.
The A.G.’s contention that Yakub Memon had exhausted his mercy petition option on April 11, 2014, with the dismissal by the President of the petition filed by his brother is open to challenge on other grounds as well.
Even as the Supreme Court’s three-judge bench headed by Justice Dipak Misra was hearing Yakub Memon’s writ petition, the hearing by a five-judge Constitution Bench led by the Chief Justice of India, Justice H.L. Dattu, involving the remission powers of State governments was inconclusive. In this case, the Solicitor-General had clearly averred that a death-row convict was entitled to submit more than one mercy petition if he had invoked a fresh ground. As the Constitution Bench was seized of this issue, there was no finality to the number of times that mercy petitions can be filed by a convict or by others on his behalf.
Furthermore, the fact that the President sought the advice of the MHA to decide Yakub Memon’s July 28 mercy petition only shows that the government considered the submission of petitions a legitimate exercise, even though the government might have concluded that it did not raise any new grounds. Therefore, Yakub Memon was entitled to know the result of this mercy petition and also challenge the President’s rejection before his execution. Had the government, like the A.G., held the view that Yakub Memon was not entitled to submit another mercy petition at all, it would not have considered it, or advised the President how to dispose of it.
Yakub Memon’s death warrant was issued by a Terrorist and Disruptive Activities (Prevention) Act, or TADA, court on April 30, setting the date of execution as July 30, giving him 90 days. Not only was Yakub Memon not heard on April 30 by the TADA court on the issue of death warrant, but he was intimated about the warrant only on July 13, just 17 days before the date of execution. It was argued by Yakub Memon’s counsel that had he been heard at the time of the issue of the death warrant, he could have told the court about his intention to file a curative petition and requested the court to delay the death warrant pending the result of the curative petition. Justice Misra, however, held that the purpose of the mandate requiring the hearing of the convict at the issue of warrant had been complied with in Yakub Memon’s case.
However, the facts suggest otherwise. Had the TADA court waited for the outcome of the hearing of the curative petition in the Supreme Court, it could have issued the death warrant only on July 22, giving him the minimum of 14 days’ notice. This would have effectively given him more days to live, and also more scope to explore further legal options.
Besides, Yakub Memon alleged that the state had arbitrarily reduced the period of 90 days’ interregnum, fixed by the TADA judge in his discretion, between the date of death warrant and the date of execution, by intimating him about the death warrant just 17 days before the date of hanging. Justice Misra, however, reasoned that as the state had fulfilled the minimum period of 14 days’ notice before execution, the maximum period fixed by the judge (90 days) in his discretion need not be complied with.
Yakub Memon’s review and curative petitions both reveal serious infirmities in the judgments of the TADA trial court and the Supreme Court regarding his conviction and sentencing. The trial court held him guilty under Section 3(3) of TADA, in its order of conviction, but in the order of sentence, the offence under TADA was read with Section 120-B of Indian Penal Code (IPC), which his counsel termed as highly irregular.
Section 3(3) of TADA deals with conspiracy to commit a terrorist act and only prescribes a maximum punishment of life sentence with fine. Section 120-B (1) of the IPC says that whoever is a party to a criminal conspiracy to commit an offence punishable with death, be punished in the same manner as if he had abetted such offence. Section 109 of the IPC says that whoever abets any offence shall be punished with the punishment provided for the offence.
Therefore, it is clear that the trial court relied on Section 120-B as an afterthought in its judgment in order to impose the death sentence on Yakub Memon, although TADA, under which he was found guilty in the conviction judgment, did not envisage death sentence for the same offence. Both the review and the curative benches of the Supreme Court, however, did not answer this contention in their judgments.
Besides, the validity of the confessional statements of the co-accused against Yakub Memon—which were the sole basis for his conviction and sentence and which were retracted later—was questioned both in the review and the curative petitions, but these infirmities went unanswered in the Supreme Court’s judgments dismissing these petitions.
Yakub Memon’s legal struggle shows that as a death-row prisoner, he sought to avail himself of each and every legal option provided by India’s judicial system to secure his rights. But the Supreme Court’s lack of concern for his substantive rights closed his options much faster than one would expect, given the serious infirmities that his lawyers had unravelled.
