KRISHNADAS RAJAGOPAL writes in "The Hindu"
The right to challenge the rejection of the mercy petition was denied; and this is wholly opposed to the constitutional scheme.
— Memon specifically sought reconsideration of the verdict delivered on his review petition on April 9, 2015. But the July 29, 2015 judgment pronounced by a three-judge bench hardly addresses this specific issue. Justice S.S.M Quadri in the 2002 Rupa Ashok Hurra judgment by a five-judge Constitution Bench on curative petitions observes that “...declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice”.
— The Supreme Court Rules, 2013, while dealing with curative petitions, says “three senior-most judges” of the Supreme Court should be part of the Curative Bench. The Chief Justice of India is never described in any statute or the Constitution as the “senior-most judge”. His distinct identity in law is the “Chief Justice of India”. An example for this is found in The Constitution (Ninety-Ninth Amendment) Act, 2014. So, should the curative process in the Memon petition have included the third senior-most judge in the Supreme Court, Justice J.S. Khehar?
— Why was Memon not given an opportunity to file additional written arguments as permitted under Order 48 Rule 4 (2) of the Supreme Court Rules, 2013 as part of the curative process? The 2013 Rules say “Unless otherwise ordered by the Court, a curative petition shall be disposed of by circulation without any oral arguments but the petitioner may supplement his petition by additional written arguments”.
— Memon’s writ petition under Article 32 of the Constitution for quashing the death warrant was rejected by a three-judge bench (Justices Dipak Misra, P.C. Pant and Amitava Roy) at 4.15 p.m. on July 29 — the eve of the execution — and the judgment was uploaded at around 11:00 p.m., a few hours before Memon was scheduled to be hanged to death. If he had not got a reasonable opportunity to read for himself the judgment before he was sent to the gallows, does it not amount to violation of natural justice? Again, did Memon get an opportunity to read the judgment delivered at around 5:00 a.m. on July 30, refusing to give him a 14-days breather between the President’s rejection of the mercy petition and the hanging? It is not enough if the lawyer knows the judgment, the case is filed by Memon, and he should read it himself. The case is in his name, the lawyer only pleads. The judgment is not for the lawyer, but for Memon.
— Article 137 is a constitutional remedy available to a person to file a review (against the July 29, 30 judgments). This was denied to him.
— The right to challenge the rejection of the mercy petition was denied; and this is wholly opposed to the constitutional scheme.
— An argument has been brought up that the first mercy petition filed by his brother Suleiman on behalf of Yakub Memon was dismissed in 2014, and there was no need for further time for him to prepare for the July 30 execution. This argument, however, does not take into account that Yakub Memon had filed several petitions (a review heard in open court for 10 days, a curative petition, two writ petitions, of which one merely sought 14 days’ time to make peace with God and settle family affairs) which gave him hope of continued existence in life. When a final ‘No’ is said, should some reasonable time not be given for him to reconcile to his fate?
— Has a constitutional court, anywhere in history, refused a person begging to live for just two more weeks? After spending 21 years in jail, what would have happened if his life was extended for just another 14 days, that too, in a single cell in the jail?
— Why was the final petition seeking a 14-day breather posted to the same three-judge Bench, which dismissed Memon’s plea for quashing the death warrant earlier the same day (July 29) and was exhausted hearing the case? In the normal course, the roster would have been a bench of two judges.
— In the history of the Supreme Court, has any case been heard with such speed? A three-judge bench, on July 29, decided Memon’s writ petition on merits without even issuing notice or giving an opportunity to file a counter.
— Under Article 21 of the Constitution, the Supreme Court is the protector of life. But why did the Supreme Court put so much strain in the last two days before Memon’s hearing?Should it have been more composed? What was the hurry? Memon could have continued his existence of 21 years for a few more days in a single jail cell.
Questions to the President
1. In the history of this country, has the President decided any clemency petitions eight hours before the execution? Again as a supplementary question, has the President given the Union Home Minister a personal hearing on a clemency plea?
2. Was the disclosure by B. Raman ever considered by the President before rejection of the mercy plea?
3. Was the condemned man’s plea that he is schizophrenic considered by the President while deciding the mercy petition? It goes against the principles of natural justice to hang a sick man.
4. Memon spent 21 years in jail. Did the President consider whether he was a reformed person? Was his conduct in jail considered? Under the theory of punishment, a reformed person should not be executed. Retribution should not be the sole reason to send a person to the gallows.
5. Has a person who has spent 21 years of his life behind bars without a single parole, a “zero person”, been executed before in the history of this country? Was Memon worth hanging?