Memon clutches at SC's last straws

In a glimmer of hope for Mumbai blasts accused Yakub Abdul Razak Memon, the Supreme Court (SC) Bench hearing a petition to quash his death warrant, decided on Monday to examine whether Memon’s curative petition was rightly decided. Though Memon, who is scheduled to be hanged on Thursday, never raised this point in his latest petition, one of the two judges of the Bench, Justice Kurian Joseph sitting with Justice AR Dave, raised this point. Justice Joseph asked Attorney-General Mukul Rohatgi to enquire whether the SC Rules provide for the judges, who heard the review petition, to also be part of the curative proceeding. “The curative petition was not circulated properly,” Justice Joseph said.

A Bench of Chief Justice Hl Dattu, Justices TS Thakur and AR Dave had dismissed Memon’s curative plea inside the court chambers on July 21. His review petition was heard in the open court for ten days by a three-judge Bench comprising Justices AR Dave, J Chelameswar and Kurian Joseph. The point that Justice Joseph was driving through was that the curative petition had to include him and Justice Chelameswar as well. 

The Attorney-General who appeared for Maharashtra did not agree with the judge. Stating the law on the subject, as provided under Rule 4 of SC Rules, Rohatgi said that the curative is always against the original order of the SC upholding the death penalty and not the review order. Justice Joseph argued that the position may not be the same since the SC ruling on September 2, 2014 by which review petitions of death row convicts need to be heard in open court, as a matter of rule.

Memon’s lawyer, senior advocate Raju Ramachandran was quick to buy this argument and present it as his own. Memon’s lawyer also submitted that the death warrant issued by a TADA court on April 30, 2015 fixed his execution date on July 30, even as his legal remedies of filing curative petition and mercy petition was pending. 

Rohatgi argued that there is no time limit for filing curative plea and the warrant cannot endlessly wait till the convict wishes or not wishes to exhaust his legal remedies. But Memon’s lawyer raised the point of the State’s delay to inform him of the warrants on July 13, giving him just 17 days notice prior to his execution date.

The judgement of SC upholding death for Memon was passed on March 21, 2013. Rohatgi said that the Rules required only these judges, if still serving, to be part of the curative proceeding. But Justice Joseph was still firm on his opinion and said, “This makes it all the more reasonable for the judges who heard the review petition to be part of the curative Bench.”

Justice Joseph’s view was not shared by the other judge sitting on the Bench. Justice Dave, who headed the Bench, though agreeing to post the matter for Tuesday, found no reason to entertain the petition on merits.