Yakub's contribution to death penalty law

Yakub Abdul Razak Memon is no more but in the annals of legal history he will live on after two back-to-back judgements delivered by the Supreme Court enunciated the law on two vital aspects related to death penalty cases. One judgement laid down what the composition of Bench has to be to when deciding a curative petition of a death row convict. The other judgement delivered by the apex court after a pre-dawn hearing nonetheless made it clear that a condemned prisoner whose second mercy petition is rejected can be hanged without the mandatory 14-day notice.

The two judgements were by the same Bench comprising Justices Dipak Misra, Prafulla C Pant and Amitava Roy, while deciding on separate petitions filed by Memon. Judgments in the Supreme Court are referred by the title of the case, and surely Memon will have his place for all time to come.To understand the contribution he made to the development of law in regard to capital punishment cases, one needs to understand the controversy in question. Memon’s first petition challenged his death warrant on several grounds. After a two-judge bench due to a split verdict referred his petition to three judges, one of the judges in the two-judge bench conceived the thought that the procedure for hearing curative petitions must include the judges who passed the review judgement. 

Review petition of death row convicts is heard in open court and judges often hear arguments for days, in case of Memon it was ten days. Curative petition on the other hand is in extreme cases where there is reason to show miscarriage of justice in the original judgement. The Supreme Court Rules require curative pleas to be heard by CJI, two senior judges and the judges who passed the original judgement complained of. The question that fell for consideration was whether the words “complained of” refers to review judgement as well.

The bench headed by Justice Misra said, “Solely because the dismissal of the review petition has been nomenclature as ‘judgement’ it will not come within the ambit and sweep of the concept of ‘judgement complained of’.” In the result, the law was laid down that a curative petition of a death row convict need not comprise of the review judgement judges.

Almost 12 hours after this judgement was pronounced at 4 pm, the same bench was confronted with yet another question of law. Memon had approached them a second time around to challenge his death warrant with just hours remaining for his execution. He had received intimation of dismissal of his second mercy petition by both the President and Maharashtra Governor. His lawyers sought refuge under a SC order passed on May 27 this year. It held that no convict can be executed till lapse of 14 days from the day he receives communication on dismissal of his mercy petition. The time gap would allow convicts to consult lawyers and avail of legal remedies. 

The bench held that 14-day notice would apply only against the dismissal of the first mercy petition. This judgment ensured that for all time to come, no convict is able to defeat the process of law by filing fresh mercy petitions on the eve of hanging.