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NEW DELHI: Death for 1993 Mumbai bomb blasts accused Yakub Memon is hanging by a thread that will be determined now at the nth hour by a three member bench of the Supreme Court on Wednesday.
In a bizarre development, even while Memon’s lawyers and family prepare for justice in the apex court, the jail authorities are preparing for his execution that is still scheduled for July 30. Unless it is commuted to life imprisonment on July 29 by the three judge bench constituted by the Chief Justice of India that will hear Memon’s petition to stay the execution. This step was taken following differences in the two judge bench that heard Memon’s petition on Tuesday.
Justices A R Dave and Kurian Joseph differed on the issue of entertaining the plea of Memon.
While Justice A R Dave dismissed Yakub Memon's plea, Justice Joseph Kurian stayed his death warrant, according to reports.
Memon, in his plea, had claimed he was suffering from schizophrenia since 1996 and has remained behind the bars for nearly 20 years, much more than a person serving life term has to spend in jail. He had sought commutation of death penalty, contending that a convict cannot be awarded life term and the death sentence for the same offence. His lawyers pointed out that he was in deep agony.
The points that have weighed with Justice Joseph leading to a division in the bench are:
1. the curative petition should have been circulated to all the apex court judges who had delivered the main judgement as per the proper procedure. To this Attorney General Mukul Rohatgi, representing the government that has opposed Memon’s petition, said that two of the judges had since retired. The bench responded, “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.”
2. Why a convict cannot argue a fresh reason for commuting his punishment if that served the ends of justice. The Bench did observe during the hearing, “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.”
3. Why the President had sought the Maharashtra Governor’s opinion on Memon’s mercy plea. Both were independent authorities under the Constitution for deciding clemency.The President rejected Memon’s mercy petition in April 2014.
Senior advocates T R Andhyarujina and Raju Ramachandran maintained, with evidence, that there had been no delay on Memon’s part to file a curative petition. And that the TADA court had issued the death warrant in haste without waiting for him to avail of the legal remedy.
Meanwhile senior political leaders, academics, actors, lawyers and others have come out with petitions urging the President to commute Memon’s death sentence into life imprisonment. Forceful arguments against the death penalty have been made. However, the government remains unmoved and is arguing for his execution. This despite the revelation by the late Additional Secretary, Cabinet Secretariat B.Raman that Memon had been brought to India under ‘mitigating circumstances’ and that these should weigh on the authorities in his favour. Raman who had second thoughts about releasing an article---now published---he had written in 2007 was the office in charge of getting Memon back into India. And that clearly an agreement had been struck whereby Memon would not be executed but given life imprisonment instead.
Memon himself has been maintaining that he had voluntarily surrendered in Nepal to the Indian authorities on the condition that he would not be hanged. And that his family---wife and children---who had fled with him after the Mumbai blasts laid at the door of his brother Tiger Memon, would be allowed to return to India. The last was accomplished, though the prosecution decided not to honour the ‘mitigating circumstances’ as detailed by Raman.
