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Yakub case: serious procedural error, violation of fundamental rights

Saurav Datta | Updated on: 13 February 2017, 3:25 IST

The burden

  • Yakub Memon\'s case has deeply polarised public opinion
  • Some eminent persons have petitioned the President for clemency
  • Others, like Justice Anil Dave, are determined to let a \'terrorist\' hang

The choice

  • CJI HL Dattu can choose to agree with Justice Dave and let the execution go ahead
  • He can also agree with Justice Kurian Joseph about a procedural lapse and constitute a bigger bench to hear the curative petition

The hope

  • Yakub\'s lawyers are hoping for the latter for three key reasons
  • Mitigating factors on Yakub\'s side - B Raman\'s disclosure that he helped investigating agencies
  • The reasons for dismissing the original curative petition were not entirely correct
  • TADA court which announced the execution date didn\'t hear out Yakub, as is the law

Yakub Memon and his case before the Supreme Court seem to be struggling under a double burden.

The first is deeply polarised public opinion. Some retired judges and other eminent individuals have petitioned the President for clemency, but their plea is being drowned under the demands of the BJP, public prosecutor Ujjwal Nikam and many others, who are determined that a 'terrorist' must hang.

The second is the opinion of Justice Anil Dave of the Supreme Court. During the 28 July hearing, while refusing to entertain Yakub's lawyers' pleas, he almost warned them by saying "You know who you are trying to save".

This could have been influenced by Attorney General Mukul Rohatgi's contention that demanding the fullest due process for Yakub is nothing but delaying the inevitable, because the gallows is the only place for the man held guilty of engineering the deaths of 257 people in the devastating Mumbai bomb blasts of 1993.

Also read: The story of Yakub Memon: his hanging will leave many questions unanswered

Contrary to the claims of those in support of Yakub's execution, he hasn't exhausted all his legal remedies, even though his curative petition was dismissed by the Supreme Court on 21 July.

In fact, the very dismissal of the petition has been challenged on grounds of violation of the procedure which the court itself had laid down. And this is reflected in the opinion of Justice Kurian Joseph, who sharply disagreed with Justice Dave.

What does the split verdict mean?

The answer lies in the definition of a curative petition, and the procedure in which it is to be heard and decided by the court.

This legal remedy is a last-resort measure, and can be availed of when there has been an evident error in a judgement.

In its 2002 ruling, the Supreme Court defined a curative petition, but did not lay down an exhaustive list of "errors" which a person could claim as having caused him irreparable and grave injustice.

So, these errors could be substantive - for example, if the court has mistakenly ignored evidence which could be beneficial to an accused, or if it has relied upon a false claim made by the prosecution.

They could also be procedural - for instance, there was a flaw in the manner in which a case was heard.

The procedural error

It is this, a procedural error, on which Justice Joseph based his opinion. According to the rules of the Supreme Court, a curative petition must be heard by the three senior-most judges of the court, and the judges who had dismissed the review petition.

Yakub's review petition was dismissed on 9 April this year, by a bench comprising Justices Dave, Joseph and Jasti Chelameswar. On 21 July, a bench of Chief Justice of India HL Dattu, and Justices TS Thakur and Dave, dismissed his curative petition.

Justices Joseph and Chelameswar were missing from the bench which dismissed the curative petition. Thus, there was a clear procedural violation.

Yakub's lawyers contended that this breach of rules was a grave error, and rendered the dismissal of his curative petition invalid in the eyes of law. Moreover, since it is a question of life and death, every rule of procedure must be scrupulously followed.

Anything otherwise would be a violation, and in this case, an irreversible one, of his fundamental right to life as guaranteed by the Constitution.

Justice Joseph agreed, and also emphasised that even if a person was to be hanged, it was incumbent upon both the government and the judiciary to ensure that there is absolutely no violation of mandatory procedure.

On the other hand, Justice Dave said even though the violation has been proved, it is 'irrelevant' and hence Yakub's lawyers' claims 'don't appeal' to him.

The choice before Dattu

On 29 July, Justice Dattu has to make up his mind - whether to constitute a larger bench to hear Yakub's curative petition afresh, or to agree with Justice Dave and refuse to intervene.

There are three reasons Yakub's lawyers are fervently hoping for the former.

First, if the curative petition is heard all over again, they would get an opportunity to claim that there are mitigating factors on Yakub's side.

Yakub's lawyers say since it is a question of life & death, every rule of procedure must be precisely followed

This has been made possible because of the late B Raman's disclosure of how Yakub actually helped the investigating agencies in exposing Pakistan's role in the blasts.

When the Supreme Court upheld Yakub's death penalty in 2013, it wasn't aware of this crucial detail. For obvious reasons, the prosecution, eager to secure a conviction by any means possible, had suppressed this fact from the court.

Second, the Supreme Court had erred in dismissing the curative petition, because it had wrongly interpreted the law to hold that a curative petition could be entertained only on two grounds - that the person was not given the opportunity to be heard, and that a judge on the bench was biased.

Yakub's lawyers contend that there is no restriction on the number, or kinds of grounds, on which a curative petition is to be admitted, and this factor hadn't been considered by the court.

Third, it would give them an opportunity to challenge the death warrant itself. The law stipulates that the convict must be heard before a warrant is issued. The TADA court, while setting the date of 30 July, had acted unilaterally, without giving Yakub's lawyers an opportunity to present their case.

There is an aphorism that the Supreme Court is supreme not because it is infallible, but because it is final. Echoed by judges, lawyers, and legal scholars alike, it is the clearest confession of judicial errors, some of which could, and have, cost people their lives. Today, Justice Dattu has an opportunity to make amends, even if it is only in a single case.

First published: 29 July 2015, 11:52 IST
Saurav Datta @SauravDatta29

Saurav Datta works in the fields of media law and criminal justice reform in Mumbai and Delhi.