Yakub Memon Was Judicially Garroted, So Grave Doubts Remain

By choosing speed over due process, the Supreme Court has given short shrift to justice, writes Saurav Datta

Unprecedented Hearing

• “Unprecedented” seems to be the commonly used word to describe and praise Supreme Court’s judgment on Yakub Memon
• It was an unprecedented court gathering called upon by CJI HL Dattu in Courtroom 4 of the Supreme Court
• Attorney General taking umbrage at Yakub Memon’s pleas accused Yakub of playing “a game to delay the hanging”
• Court also sided with Rohatgi adding that Yakub should have started making all final arrangements after May itself

By choosing speed over due process, the Supreme Court has given short shrift to justice.

“Unprecedented”, right now, is the most commonly used term to describe and praise the Supreme Court’s swift and determined actions to bring Yakub Memon to justice (or whatever it means to myriad hawks, doves and vultures). A clarification here – it isn’t the first time that the Chief Justice of India has heard the pleas of a man whose execution was imminent – a matter of only a few hours.

On September 8, 2014, a bench was hastily convened at 1.30 am, after Senior Advocate Indira Jaising rushed to Justice H L Dattu’s residence and urged him and Justice Anil Dave to stay Surinder Koli’s hanging, scheduled at 5.30 am. The court granted her plea.

The “unprecedented” in today’s event is CJI Dattu’s decision to constitute a three-judge bench and have a ‘proper’ hearing in Courtroom 4 of the Supreme Court. Probably because of the judiciary’s burning desire to show Yakub the law’s so-called majesty before sealing his fate. Another “unprecedented” event – the court’s tearing hurry to hear and decide the final pleas in the wee hours of dawn, for a reason which, in the light of what subsequently unfolded, appear as quite perverse.

Lethal Oversight, Or Worse?

The humdinger began in the evening, when the court held that there was nothing wrong in the way in which Yakub’s curative petition was heard and dismissed. Justice Deepak Misra, who wrote the judgment for himself and Justices P C Pant and Amitava Roy, also held that the death warrant issued by the TADA court on April 30 suffered from no legal infirmity.

No death warrant can be issued till a convict has exhausted all legal remedies. Yakub filed a curative petition on May 22, and on May 26, he was informed of the president’s rejection of his mercy plea. The warrant was served on him on July 13, and the court dismissed the petition on July 27. So how did the court conclude that the warrant was flawless?

Legal remedies are exhausted not when a petition is filed, but when it is dismissed. Did the court mean and expect that Yakub should have apprehended, nay, known, that his petition wouldn’t stand a chance? And if this was indeed the expectation, forget about the public’s faith, what does it say about the court’s belief in its own impartiality?

After both the Maharashtra governor and the president rejected Yakub’s mercy pleas in a disconcertingly quick succession, his lawyers knocked on the Supreme Court’s doors with a couple of modest prayers. One, that the mercy petitions, dismissed in undue haste, be reviewed lest he suffers irreparable injustice at the hands of the State.

Two, that the warrant be stayed for 14 days from the date of his being served with the information of his mercy pleas’ rejection. This contention was based both on law and the hope of a minimalist humane consideration from the court. Because, after having all doors finally shut upon him, a death row inmate needs and deserves some time to meet his family and loved ones, say the final goodbyes and prepare his will.

Pleadings Go Unheard

Attorney General Mukul Rohatgi, taking extreme umbrage at these pleadings, accused Yakub of playing “a game to delay the hanging” and belligerently attacked his humble request for a few more days to live. The court sided with Rohatgi, adding that Yakub should have started making all final arrangements immediately after his review petition was dismissed in May. He had ample opportunity to do so, and couldn’t be allowed any more.

The bench had been impatient and condescending towards him earlier too, when it said that the court which heard his review petition had done him a favour by hearing his case for 10 days, when the ‘stipulated’ time was only 30 minutes. The fact that half-an-hour would be grossly insufficient given the nature of the case, the voluminous evidence and complex arguments must have eluded the judges.

This also indicates two things. One, that the court didn’t want him to have a legitimate expectation of getting some relief out of his curative petition. It could also indicate, and quite dangerously, that the court is sending out a message – that curative petitions would hardly succeed because the judges would have made up their minds anyway even before hearing the case.

Spectacle Of Obscene Haste

There are paeans galore in the media and among the people – paeans to the Supreme Court’s nobility and Indian democracy, because the judges deigned to assemble at an ungodly hour and deliver justice.

What could have been driving the judges that they set aside everything and embarked upon this heroic task of meeting the July 30, 7.00 am deadline? Why would Justice Misra, heading the bench, insist upon delivering the judgement on July 29 itself? To be fair to the court, since it had upheld the validity of the death warrant, it could well have pulled out all stops to see to it that it is executed (pun, intended).

But then there were many questions which were either ignored or remained unanswered, despite being repeatedly raised by Yakub’s lawyers. Could paucity of time be a probable reason? If yes, what prevented the bench from having a “normal” hearing in the morning, like what happens every day, and adequately address all issues?

A grim occasion which required sombre and detailed judicial attention was turned into a spectacular show of judicial might. The court held that “not executing the warrant would be a travesty of justice.” Is executing the warrant at a hitherto unprecedented speed not “travesty”?