Suspense continued over the execution of death warrant against Yakub Memon, the lone convict in the 1993 Mumbai serial bomb blasts case, after two Supreme Court judges took different stand on his fresh plea for relief on Tuesday and referred the matter to Chief Justice of India (CJI) to constitute a larger bench. The new bench, consisting of Justices Dipak Misra, Prafulla Pant and Amitava Roy, will hear the petition on Wednesday.
Memon is scheduled to be hanged at 7am on July 30, in Nagpur prison, after a TADA court issued a death warrant on April 30.
In a curious turn, senior judge of the bench Justice Anil R Dave dismissed Memon’s plea, citing a Sanskrit couplet from 'Manusmriti' on raj-dharma that “If the king does not act firmly in punishing an offender, then he is equally guilty of the sin. The king should not be carried away by the emotions while dealing with the offenders.”
Expressing inability to agree with Dave, Justice Kurian Joseph said “law is not helpless and this court is not powerless” and after finding “procedural violation” on the part of apex court while constituting the bench to hear Memon’s curative plea on July 21, he stayed the TADA court’s death warrant.
In his short order, Justice Dave refused to pass a common order staying the execution in the light of their split decision. He said Memon has exhausted his legal remedies and his fresh mercy petition is with the Governor of Maharashtra, who is yet to dispose of the plea.
However, Justice Joseph in a detailed order said, “the curative petition itself has not been decided as per the Supreme Court rules. The defects need to be cured first, otherwise there is a clear violation of Article 21 of the Constitution (right to life) in this case.”
Rejecting Attorney General Mukul Rohatgi's arguments that the curative petition was not under issue raised by Memon in his fresh plea which is under consideration, Justice Joseph said the argument was just a technicality.
“Such technicalities should not stand in way justice is being done. As protectors of life, the Supreme Court has come to take note of the position that a procedure has been violated in a case dealing with the life of a person after all law is for man and in such cases, law is never helpless and this court is never powerless,” Justice Joseph said.
Justice Joseph further said the curative petition is now required to be considered afresh in terms of Order 48, Rule 4 of the SC Rules dealing with the procedure mandated to be dealing with curative petitions.
A bench of three senior-most judges – CJI, Justice TS Thakur and Justice AR Dave – were in the curative bench and Justice Joseph himself and Justice J Chelameswar, who were part of the review bench, were excluded.
Memon, the lone death row convict, in his fresh plea challenged the TADA court’s death warrant, issued on April 30, saying the warrant for execution was issued before he exhausted all legal remedies including curative plea which was rejected by the court on July 21.
Earlier, in review plea, Memon took the grounds that he was suffering from schizophrenia and has been behind the bars for nearly 20 years, much more than a person serving life term has to spend in jail.
Twelve coordinated blasts had rocked Mumbai on March 12, 1993, leaving 257 dead and over 700 injured.
