New Delhi: Uncertainty continued on Monday over whether Yakub Memon, the sole 1993 Mumbai blasts convict on death row, will be hanged on July 30, with the Supreme Court asking Attorney General Mukul Rohatgi to clarify tomorrow the rules relating to curative petitions, the last judicial remedy in law.
A division bench comprising Justices A R Dave and Kurian Joseph asked Rohatgi to present before the court the relevant rules and scope of curative petitions before it decides on Memon's plea seeking a stay on his execution.
While Rohatgi was of the view that all judicial remedies available to Memon got exhausted with dismissal of his curative petition on July 21, senior advocate Raju Ramachandran, appearing for him, claimed correct procedure was not adopted by the court in dealing with his curative plea.
Ramachandran said not only the death warrant was issued during the pendency of the curative petition, Memon was also not given an opportunity by the TADA court to explain whether he had exhausted all available legal remedies. He also deprecated the delay in informing Memon about the date of his proposed execution which was conveyed to him on July 13.
"The TADA judge gives him 90 days notice for execution but the state government gives notice of only 17 days. The state government's order is premature," he said and added, "the challenge is to the issue of death warrant issued on April 30 which is completely arbitrary to the law laid down by this court."
Memon got support from Death Penalty Litigation Clinic, associated with the National Law University, Delhi, with its senior advocate T R Anndhyarujina also making similar arguments seeking stay of execution of the death warrant.
Justice Joseph appeared to share the views of Memon's counsel when he said perhaps due procedure was not followed.
He said the curative plea, after going to the four senior-most judges of the apex court, should have also gone to the bench which last heard the matter confirming his death sentence in a review plea on April 9, 2015.
Rohatgi, who said he was appearing for CBI, Maharashtra and the Centre, initially sought some time to respond to the Memon's petition, but realising that the bench was ready to hear it, contended that the convict had exhausted all legal remedies available and that his mercy pleas have also been rejected by the Maharashtra Governor and the President.
Justice Kurian also raised the issue of various stages in
such cases and procedures that are followed by a convict on death row, including approaching the Governor and President for mercy.
"What is the stage of going with the begging bowl," he wanted to know.
"Mercy is only with open hands," the judge said, adding "it is a constitutional process" and agreed with the Attorney General that it has nothing to do with the judicial process.
"You go for mercy when all your legal rights are exhausted," the bench observed.
While Rohatgi was making his submissions, elaborating on the sequence of events leading to the present state of affairs in the case, Justice Kurian raised a volley of questions on curative petitions and asked,"what is the process of curative petition".
Rohatgi stressed any issue arising in the case has to be seen in the light of the original apex court judgement of March 21, 2013, upholding the conviction and death sentence awarded by the TADA court in 2007 as "facts cannot change" and even the plea for mercy or clemency depends upon the "facts of the crime and not on judicial process."
Justice Dave at one stage said the court "cannot go into the merits. Nothing further is required as everything has been decided."
The Attorney General revisted the judicial proceeding of the case in the apex court and said after his death sentence was upheld on March 21, 2013, and the first review petition was rejected on July 30, Memon's brother had approched the President for clemency in the first week of August the same year as the hanging was scheuled for August 14.
During the pendency of the mercy plea, the execution was stayed and his petition was referred to the Governor who dismissed it on November 14, 2013. Later, the President also rejected it on April 11, 2014.
However, after the judicial pronouncement that delay in
deciding the mercy plea is a ground to commute death sentence into life imprisonment, there was a fresh round of judicial proceedings in which Memon's second review petition was heard in an open court and he failed to get any relief, Rohatgi said.
The Attorney General said it was in this background that the TADA court came out with the death warrant on April 30 and thereafter Memon preferred the curative petition, which was rejected on July 21, following which he filed another mercy plea before the Governor.
Earlier, a three-judge bench headed by Chief Justice HL Dattu had on July 21 rejected Memon's plea, contending the grounds raised by him for relief do not fall within the principles laid down by the apex court in 2002 in deciding curative petitions, the last judicial remedy available to an aggrieved person.
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.
The apex court had on June 2, 2014 stayed the execution of Memon and referred his plea to a Constitution bench as to whether review petitions in death penalty cases be heard in an open court or in chambers.
12 coordinated blasts had rocked Bombay, as the city was then known, on March 12, 1993, leaving 257 dead and over 700 injured.