Trials of a death-row convict

1.

Many felt the Supreme Court was going out of its way to respect the human rights of a

prisoner on the death row.

The decision to hold the hearing of Yakub Memons 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 exparte 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 Memons
execution and issue of notice in the matter so as to hear his petition on merits remained.

2. After all, how long one can wait? was the phrase repeatedly used by the A.G., Mukul
Rohatgi, when Yakub Memons counsel before the court sought a stay on his death warrant
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.

3. In Paragraph 12 of its judgment, delivered after hearing Yakub Memons lawyers in the wee
hours of July 30, the three-judge bench of the Supreme Court, led by Justice Dipak Misra, said
that Yakub Memons 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.

4. On August 6, 2013, Yakub Memons 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.

5. The only ground on which the Justice Dipak Misra Bench dismissed Yakub Memons
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.

6. 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.
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.

7. 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.

8. disagreement between Justice Kurian Joseph and Justice Anil R. Dave, who had first
heard Yakub Memons writ petition on July 28, Yakub Memons 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 Josephs view.

9. 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.

10. 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.

11. 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. Ramans 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.

12. Yakub Memon also brought to the Presidents 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 prisoners death penalty to be
commuted to life imprisonment.

13. 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.

14. 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 Courts three-judge bench headed by Justice Dipak Misra was
hearing Yakub Memons 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.

15. Furthermore, the fact that the President sought the advice of the MHA to decide
Yakub Memons 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 Presidents 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.

16. Yakub Memons 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.

17.

It was argued by Yakub Memons 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 Memons 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.

18. 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.

19. Yakub Memons 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.

20.

the validity of the confessional statements of the co-accused

against Yakub Memonwhich were the sole basis for his
conviction and sentence and which were retracted laterwas
questioned both in the review and the curative petitions, but these
infirmities went unanswered in the Supreme Courts judgments
dismissing these petitions.

21. Yakub Memons legal struggle shows that as a death-row prisoner, he sought to avail
himself of each and every legal option provided by Indias judicial system to secure his rights.
But the Supreme Courts 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.