Yakub Memon’s Mercy Petition: How the Supreme Court's Late-Night Hearing Left Several Questions Unanswered

AP Photo/Tsering Topgyal
03 August, 2015

On 30 July 2015, last Thursday, Bhagwandas Road in New Delhi—where the Supreme Court of India is located—was bustling with an unusual amount of activity at around 3 am. As I made my way to court room number four to witness the final plea against the execution of Yakub Memon for his role in the 1993 Mumbai blasts, I was greeted by several outdoor broadcasting (OB) vans just outside the court premises, students, journalists, activists, and of course, lawyers. A bench of three judges from the Supreme Court—Justice Dipak Misra, Justice Prafulla C Pant and Justice Amitava Roy—had been constituted to hear the petition, and it was, by all accounts, an unprecedented event.  The Supreme Court had never before heard a matter post-midnight inside the court premises. The proceedings commenced at 3.30 am, and Memon’s hanging was scheduled for 7 am, three-and-a-half-hours later.

At 11 am on 29 July 2015, Memon had submitted a 14-page mercy petition to President Pranab Mukherjee. At around 10.45 pm that night, the petition was rejected. By 1.30 am on Thursday, word had gotten around that Anand Grover and Yug Mohit Chaudhary, the advocates arguing for Memon, had gone to meet the Chief Justice of India, HL Dattu, earlier that night along with a few others including Prashant Bhushan, a Delhi-based lawyer and activist.

The Supreme Court rules state that any urgent application should be filed with, and scrutinised by the vacation registrar. Reports suggest that Memon’s final petition was filed by Rishabh Sancheti, one of Memon’s advocates, and the Advocate-on-Record (AOR)—an advocate who is entitled under the Supreme Court of India rules to act and plead for a party in the Supreme Court of India—Anindita Pujari with the vacation registrars between 8.20 pm and 8.45 pm on Wednesday.

After waiting for instructions at the Supreme Court till around 10 pm, Memon’s lawyers decided to go to Dattu’s residence. Information that was trickling in through hearsay at this point indicated that the group at Dattu’s house had argued that the execution was taking place even though Memon had been deprived of the due process, and that there were new and serious grounds in favour of his sentence being stayed. They were successful in convincing Dattu that Memon’s case deserved to be heard, and so, the final hearing was scheduled.

A little before the proceedings began, I struck a conversation with a journalist at the court premises. As we discussed the impending hearing, he predicted, “They’re probably going to extend the date by 14 days.” This appeared to be the prevalent sentiment among those present at the court, and I was inclined to agree. When I had first heard of the Supreme Court uncharacteristically convening that night, I assumed that this anomaly had been prompted by someone who conclusively thought that there were substantial grounds for the court to sit in this unprecedented manner. My assumption led me to believe that the court would reverse, or at the very least modify the decision—to not stay Memon’s execution—that had been passed in the evening.

Proceedings in the Supreme Court are usually a three-stage process that consists of the original appeal, the review petition and the curative petition. While the order of conviction of a district or trial court is usually challenged before a high court through a criminal appeal, and an order of the high court is challenged before the Supreme Court, Section 19 of the now repealed Terrorist & Disruptive Activities (Prevention) [TADA] Act stipulated that an appeal from the order of a trial court can only be made to the Supreme Court. This provision eliminated one stage of appeal that is available to most other convicts. In the cases of those who have been convicted under the TADA act, a person aggrieved by the first appeal decided by the Supreme Court has the option of filing a review petition before the same bench that decided the first appeal. A review petition can only be filed if there is an error in the judgment that is apparent on the face of the record—that which would be readily observable by a spectator. Thereafter a person aggrieved by a decision in the review petition can file a curative petition on the grounds of the violation of natural principles of justice and an apprehension of serious bias.

Due to a variety of circumstances, in Memon’s case, there had already been six stages of litigation: the original appeal, a review petition, a second review petition, a curative petition, a writ petition challenging the warrant of execution of death sentence and proceedings to re-determine this writ petition. Every imaginable argument had been made, and I remember wondering why the court had decided to conduct the hearing on its premises in this manner for this particular case. The court could have chosen to reject the request, or the bench could easily been convened at the house of one of the judges as has been done in the past. However, if the Supreme Court had deemed it necessary to hold an open court hearing at 3.30 am, I reasoned, there must have been very strong reasons for it to do so.

As the hearing began, one of the first things that Grover emphatically stressed upon was that he was not challenging the death sentence. He said, “All I’m asking for, is the period of 14 days given to me by this Court in Shatrughan Chauhan v. Union of India.” Last year, on 21 January, a three-judge bench comprising P Sathasivam—the governor of Kerala and then the chief justice of India—Ranjan Gogoi and Shiva Kirti Singh commuted the death sentences of 15 convicts. The court concluded that any undue delay caused in the execution of  a convict’s death sentence would “amount to torture” and violate Article 21 of the constitution which states that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The ruling further stated that, “It is necessary that a minimum period of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution,” to allow “the prisoner to prepare himself mentally for execution.” This judgment was the plank upon which Memon’s lawyers were going to argue that his execution—scheduled for later that day—deserved to be delayed by a period of 14 days, at the very least.

In August 2013, six years after Memon had first been sentenced to death by the TADA court in 2007, his brother Suleman had filed a mercy petition to the president of India. Mukherjee rejected the petition in April 2014 and his decision was not challenged by either Yakub or Suleman. In hindsight, the filing of this petition cost Yakub Memon 14 days of his life.

Memon went on to file a review petition that was dismissed by the Supreme Court on 9 April 2015. The oral arguments for this petition continued for ten days, as opposed to the maximum limit of 30 minutes that had been prescribed by the Supreme Court in Shatrughan Chauhan. He then filed a curative petition on 22 May, which was also dismissed on 21 July. After Memon’s curative petition was rejected, he submitted one mercy petition to the governor of Maharashtra on 22 July, and one to the president of India on 29 July 2015.

The proceedings following the curative petition weren’t free of controversy. During the hearing of the first writ petition in the Supreme Court challenging the death sentence, Justice Kurien Joseph took notice of the fact that the bench that heard the curative petition was not appositely constituted.  Order XLVIII of the Supreme Court Rules, 2013 deals with curative petitions. It stipulates that a curative petition has to be heard by the three most senior judges of the Supreme Court and the judges who passed the judgment that is being challenged in the curative petition, if available. Only the three most senior judges heard Memon’s curative petition.

This, Joseph held, meant that the fundamental rights of the petitioner had been infringed. Justice Anil R Dave on the contrary, dissented with Joseph and held that the submissions regarding the constitution of the bench that heard the curative petition were “irrelevant” and “without substance.” On account of two dissenting orders passed by both the judges, the writ petition was referred to a three-judge bench that, on 29 July decided the challenge against Memon.

A few aspects of these proceedings that took place approximately ten hours before the Supreme Court convened again at 3.30 am are of critical importance. During this hearing, Memon’s lawyers argued that since Memon had filed another mercy petition before the governor of Maharashtra that was still pending, any warrant or order of execution was null and void. However, the court held that the mercy petition filed by Memon’s brother had attained finality for all practical purposes, since Memon had not challenged the order of the president rejecting his mercy petition. All the rights regarding the death sentence arising from the Shatrughan Chauhan judgment had to be computed from the date on which Memon’s brother was given the receipt of the rejection order—26 May 2014—of the petition that he had submitted.

At the time that the mercy petition filed by Memon’s brother was dismissed in 2014, several petitions challenging Order XL Rule 3 of the Supreme Court Rules, 1966 were pending before the Supreme Court in a case titled Mohd. Arif alias Ashfaq vs. Registrar, Supreme Court of India and Others. This rule prohibited oral arguments in review petitions filed before the Supreme Court and its constitutionality had been challenged by several convicts on death row among others. The challenges were on the grounds that in cases where the convicts are sentenced to death, an exception must be made and oral arguments must be permitted even in review petitions. Memon was one of the petitioners in the aforementioned proceedings. This challenge was successful in that the Supreme Court judgment dated 2 September 2014, held that convicts on the death row must be allowed to make oral arguments albeit for a maximum duration of 30 minutes. Memon was effectively permitted to re-file a review petition and make oral submissions. Moreover, the remedy of filing a curative petition before the Supreme Court was still available to him.

The final hearing that would seal Memon’s fate was underway and Mukul Rohatgi, the attorney general of India, entered the court at 3.15 am; the judges were yet to arrive. No one present in the court that night displayed even the slightest hint of exhaustion. You could be forgiven for thinking this was an ordinary hearing on an ordinary day. The judges entered the Court at 3.30 am and Grover began the arguments. Memon’s lawyers argued that they had heard unconfirmed television reports that the president of India had rejected the petition filed by Memon. They submitted that if these reports were true, no execution could be carried out until Memon had exercised the following rights, as accrued to him under the Shatrughan Chauhan judgment:

i) The right to a period of 14 days between the receipt of the order of the rejection of a convict’s mercy petition and his execution. In Shatrughan Chauhan’s case, the Supreme Court had held that the grant of this period is necessary, among other things, to allow the convict to make his peace with his God, meet his family with a sense of finality, draft his will, and settle his affairs.

(Strangely enough, similar arguments in the same case had been used before the court earlier during the day and had been unequivocally rejected. The only difference was that the 14-day period in that case was being asked for in the context of a mercy petition pending with the governor of Maharashtra. Now, it was being sought on the premise of the rejection of a mercy petition by the president of India.)

ii) The right of the convict and his family to receive the order of rejection of his mercy petition in writing.

iii) The duty of the Superintendent of Jail to forward the order of the rejection of the mercy petition to the nearest legal aid cell. This is a right to assist a convict in challenging the order rejecting the mercy petition.

The attorney general asserted that the arguments advanced by Memon’s lawyers were a “game” to indefinitely delay the execution, so that he could later plead that his sentence of death be commuted to a life sentence on the grounds of this very delay. He further stated that no death warrant would ever be executed if Memon’s arguments were accepted and that petition after petition would be filed, perhaps by different people, perhaps with different grounds. He argued that even if the Supreme Court granted 14 days to Memon, Memon would file yet another mercy petition on the thirteenth day that followed this period and would once again claim 14 more days, repeating this process infinitely, and thus frustrating the sentence against him.

Rohatgi went on to say that the proceedings were an abuse of the process of law and that the fact that the previous mercy petition had been filed by Memon’s brother and not by Memon himself was irrelevant. The period of 14 days, he concluded, had to be computed from the time the mercy petition filed by Memon’s brother was rejected in 2014. He said. “It was filed for the convict. It doesn’t matter who filed it.” Rohatgi then went on to inform the court that Memon’s family was already with him, and that the order rejecting his petition had been given to him at around 10 pm. At one point, during the proceedings, the attorney general addressed the court and said, “My lords, I hope they [Memon’s lawyers] have due authorisation to argue.” Grover immediately assured the court that authorisation had indeed been obtained. In a case such as this one, where a man was going to be hanged in less than four hours, one can only wonder what would have happened even if Memon’s lawyers had been unable to obtain authorisation.

Rohatgi continued by pointing out that the written prayer in Memon’s petition did not seek an extension of 14 days, but the quashing of the death warrant—the validity of which had already been upheld by the Supreme Court. While a hearing such as this one was bound to consist of technical arguments, it is noteworthy that the government appeared to attempting to defeat the petition by relying on hyper-technicalities such as this one, around the nature of the prayer.

The court heard both the sides patiently, without interruption and at length. During the course of the entire proceedings, the only question put forth by the court, to Grover was, “Are you challenging the order of the president of India rejecting his mercy petition?” Grover responded by saying, “I don’t even have a copy of the order, how can I challenge it?”

The court dispelled all the arguments made by Memon’s lawyers by holding—for the second time in less than 20 hours—that since Memon had never challenged the order that rejected the mercy petition filed by his brother, the order in that petition had attained finality. The court described the petition before it as an “expose of the manipulation of the principle of rule of law.”

Memon’s lawyers argued that one year had passed since that mercy petition had been filed by his brother, and that Memon was now pleading new grounds such as deteriorating mental health. They also said that Memon had not challenged the order in the previous mercy petition because the remedy to file a review and curative petition was still available to him. However, neither argument found favour with the Supreme Court. It accepted the arguments of the attorney general and held that, since the mercy petition filed by Memon’s brother had been rejected in 2014, Memon had been given ample time to settle his affairs and enjoy all rights granted by the judgment in Shatrughan Chauhan.

The court also observed that, since the oral arguments in that matter had been heard for ten days as opposed to the 30 minutes that is mandated, Memon had been provided with plenty of opportunity. It would, according to the court, be a “travesty of justice” to grant any further extension.

On 1 August 2015, Anup Surendranath, a faculty member at the National Law University (NLU) Delhi faculty and the director of the Death Penalty Research Projectresigned from the post of Deputy Registrar (Research) in the Supreme Court of India.  A post by him on his Facebook profile read as follows:

“It would be silly and naive to see the events of the last 24 hours at the Supreme Court as some triumph of the rule of law—the two orders at 4pm on 29th July and 5 am on 30th July (and the reasoning adopted therein) are instances of judicial abdication that must count amongst the darkest hours for the Supreme Court of India.” At this juncture, it would be useful to consider the following points:

Q.1: Does the Constitution of India prescribe the maximum number of mercy petition convict can file?

Ans: No. Moreover, in G Krishta Goud & J Bhoomaiah v. State of A.P (1976), the Supreme Court categorically held that, “The rejection, however of one clemency petition does not exhaust the power of the President or the Governor.” This meant that the president is not prohibited from considering more mercy petitions filed by the same person.  Even the government of India does not prohibit the submission of multiple mercy petitions. Clause VII-(A)[2] of the Procedure Regarding Petitions for Mercy in Death Sentence Cases prescribed by the home ministry stipulates as follows:

“In cases of death sentences where a petition for grant of pardon etc. has earlier been rejected by the President of India in exercise of his powers under Article 72 of the Constitution of India, it would not be open for the Government of a State to seek to exercise similar powers under Article 161 in respect of the same case. However, if there is a change of circumstances or if any new material is available, the condemned person himself or anyone on his behalf may make a fresh application to the President for reconsideration of the earlier order. Once the President has rejected a mercy petition, all future applications in this behalf should be addressed to and would be dealt with by the President of India.

Q.2: Does the Shatrughan Chauhan judgment promise 14 days between the rejection of a mercy petition and the execution?

Ans: Yes.

Q.3: Did Yakub Memon exploit the absence of a limit to mercy petitions to delay his execution? Is there any merit in the submission of the attorney general that unlimited petitions would be filed by proxy petitioners leading to the repetitive raising of new grounds?

Ans: I will first deal with the spectre of unlimited proxy petitions raised by the attorney general. This spectre is dispelled by the fact that the second and final petition filed by Memon was filed in his personal capacity. If he wanted unlimited proxy petitions to be filed, it is safe to assume that even the second petition would have been filed by another relative, which was not the case.

The second submission of the attorney general was that even if the convict was granted 14 days, he would file another petition on the thirteenth day and then seek 14 more days. Perhaps, the attorney general would have done well to read the rules framed by the government: a fresh petition can only be filed if there is a change of circumstances or if new material is available. To argue that a convict in the custody of the state and pitted against its might, will be able to abuse alleged lacunae in the law and prevent his execution is preposterous to say the very least. Memon had filed the second mercy petition a little more than one year after his brother had filed the mercy petition. Is it beyond the realm of possibility to consider that new circumstances such as the deterioration of Memon’s mental health may have arisen in this time?

Q.4: Given that the government felt that convicts may abuse the absence of a maximum permissible limit for mercy petitions, did the Supreme Court lay down any guidelines to prevent such alleged abuse or avoid such controversies in the future?

Ans: No. Any attempt to restrict the number of mercy petitions a convict can file would be patently unconstitutional.

Q.5: Did the president of India return Memon’s latest petition saying, “I have already decided your mercy petition in 2014, and that is the final order?”

Ans: No.

Q.6: If the president of India treated Memon’s latest petition as a fresh, independent petition, shouldn’t the Supreme Court of India also have treated his mercy petition the same way and granted to him 14 days, bearing in mind its judgment in Shatrughan Chauhan?

Ans: I’m going to leave this unanswered.

Q.7: While hearing the writ petition against the execution of Memon’s death warrant, Justice Anil R. Dave remarked to Memon’s lawyers, “I hope you know who you are trying to save.” On the same day, while hearing another case he remarked, “concerns in the other case appeared to be for a person who killed 257 people.” Was Memon destined to be condemned?

Ans: With the greatest respect for the judiciary, such statements will definitely make people wonder if Memon had a fair chance.

Q.8: Was justice served by the fact that the court sat at 3.30 am or denied because a technicality took away 14 days from Memon?

Ans: I’ll leave this unanswered as well.

On 30 July 2015, at 5 am, the hearing for Yakub Memon’s plea was concluded against his favour. By 7:01 am, two hours later he had been executed and declared dead. Memon is the only person to have been hanged for the blasts in Mumbai.