SC split over Yakub, new Bench to hear plea today

R Sedhuraman

Legal Correspondent

New Delhi, July 28

Chief Justice of India HL Dattu today constituted a new Bench headed by Justice Dipak Misra to decide the validity of the warrant to hang Yakub Memon, sentenced to death for his role in the 1993 serial blasts in Mumbai that had left 257 persons dead and over 700 injured. The other members of the Bench are Justices Prafulla C Pant and Amitava Roy.

The Bench will hear the plea tomorrow. This has become necessary as Justices Anil R Dave and Kurian Joseph today delivered a split verdict on Memon’s writ petition challenging the death warrant obtained by the Maharashtra government from an anti-terror court on April 30, slating the execution for July 30.

Justice Dave dismissed Memon’s plea observing that the 53-year-old death-row convict had already exhausted all legal and other options and there was no way the SC could let him reopen the decided issue to escape death by hanging.

But Justice Joseph kept the death warrant in abeyance, finding fault with the procedure adopted by the SC to reject his curative petition a week ago on July 21. Justice Joseph said that under the SC rules, Memon’s curative plea should have been considered by the three senior most SC judges – CJI Dattu and Justices TS Thakur and Dave -- and the three judges – Justices Dave, J Chelameswar and Joseph -- who had dismissed his review petition. But he and Justice Chelameswar were excluded from the Bench that went into the curative petition, he explained.

Justice Joseph delivered the verdict despite the fact that Memon’s writ petition did not even talk about the procedure adopted for deciding his curative petition. Memon has challenged the death warrant only on the ground that it had been issued even before he had filed the curative petition.

Explaining his logic, the judge said the SC could not remain a spectator after taking note of the procedural lapse. Under the Constitution, the SC should ensure complete justice without getting entangled in procedures as the apex court and its judges were neither helpless nor powerless for the purpose, he said.

Since a split verdict is not enforceable, the Bench passed a common order referring the petition to the CJI for posting it before a new Bench. Arguing for the Maharashtra government, Attorney General Mukul Rohatgi pleaded that such a convict should not be allowed to abuse the judicial process, ignoring the sentiments of the thousands of families rendered victims by the genocide unleashed by the terrorists.

Under the SC rule, the curative plea was to be considered only by the judges who had dismissed his appeal on March 21, 2013 if they had not retired, not by the judges who had decided his review petition. The appeal had been rejected by Justices P Sathasivam and BS Chauhan and both have retired, the AG said.