Mumbai: A three-judge bench of the Supreme Court consisting of Justices Dipak Misra, Prafulla C Pant and Amitava Roy could decide today whether 1993 blast convict Yakub Memon's should be hanged as scheduled on his 53rd birthday which falls on Thursday.
The three-member judge has been constituted after a disagreement between Justices AR Dave and Kurian Joseph on whether the death penalty to be carried out on 30 July should be stayed.
"There will be no order in law if one judge has stayed it (death warrant) and the other has not", the court said.
What Justice Dave, who was not in favour of staying the death penalty, said
Justice Dave was of the view that there was no infirmity in the dismissal of curative petition of Memon on 21 July and it was open for the Maharashtra Governor to take a call on his mercy plea as the condemned prisoner has exhausted all available legal remedies.
When asked to add a line on staying the death warrant, Justice Dave refused.
"Sorry, I will not like to be part of staying the death warrant. Let CJI decide," Justice Dave said and quoted a couplet from Manu Smriti relevant to the issue.
Differing with Justice Kurian that the apex court has not followed the rules laid down by itself in deciding Memon's curative petition, Justice Dave said, "submissions made about the Curative Petition do not appeal to me as they are irrelevant and there is no substance in them. In these circumstances, the Writ Petition is dismissed".
He noted that the conviction of Memon has been confirmed by this court and the review petition as well as the curative petition filed by him have also been dismissed, in addition to the fact that the President and the Governor of Maharashtra have also rejected applications for pardon "possibly because of the gravity of the offence committed by the petitioner."
Justice Dave said since it was submitted that one more application has been made by Memon to the Governor which was still pending, "it would be open to His Excellency the Governor of Maharashtra to dispose of the said application before the date on which the sentence is to be executed, if His Excellency wants to favour the petitioner."
However, there is reason for hope for Memon given what Justice Dave's brother judge said.
Why Justice Kurian said it wasn't right to hang Yakub Memon presently
Justice Kurian, who himself had raised a point which was not in Memon's plea that the apex court had not followed correct procedure in deciding his curative petition, said "this defect needs to be cured" and "the curative petition has to be heard afresh". The judge said in such circumstances, the death warrant has to be stayed.
The judge observed that he was unable to agree with his brother judge on dismissing the plea.
"I regret my inability to agree with my learned brother (Justice Dave), and gave reasonings to draw a point dug by him that a three-judge bench headed by CJI did not follow the established procedure in deciding Memon's curative petition," the judge noted.
While elaborating the procedure laid by the apex court on the curative petition, Justice Kurian said, "Thus, it is found that the procedure prescribed under the law has been violated while dealing with the Curative Petition and that too, dealing with life of a person.
"There is an error apparent on the face of the order in the Curative Petition. The mandatory procedure prescribed under law has not been followed," he said.
The judge said since the review petition was heard by a bench comprising Justices Dave, J Chelameswar and himself, the curative petition should have come to them, but instead circulated only to the apex court's three senior-most judges who dismissed it on 21 July.
Justice Kurian said Article 21 of the Constitution guarantees life to a person and "the person shall be deprived of his life only in accordance with the procedure established by law."
The judge also reportedly questioned the awarding of the death penalty to Memon. "We are not on the grounds taken in the petition. But can death penalty be awarded for conspiracy?" he noted according to a Times of India report.
He said though the senior counsel and the Attorney General referred to various grounds available in a Curative Petition, "in the nature of the view I have taken in the matter that the Curative Petition itself has not been decided in accordance with the Rules prescribed by this Court, that defect needs to be cured first."
"Otherwise, there is a clear violation of Article 21 of the Constitution in the instant case," Justice Kurian said, while noting the contention of Rohatgi that "this is not an issue raised in the writ proceedings."
However, the judge said such technicality would not come in the way of principle of natural justice.
"I do not think that such a technicality should stand in the way of justice being done. When this Court as the protector of the life of the persons under the Constitution has come to take note of a situation where a procedure established by law has not been followed while depriving the life of a person, no technicality shall stand in the way of justice being done.
"After all, law is for man and law is never helpless and the Court particularly the repository of such high constitutional powers like Supreme Court shall not be rendered powerless," said Justice Kurian.
"In the above circumstances, I find that the order dated July 21 passed in the Curative Petition is not as per the procedure prescribed under the Rules. Hence, the Curative Petition has to be considered afresh in terms of the mandatory requirement under Rule 4 of Order XLVIII of the Supreme Court Rules, 2013.
If the Supreme Court does dismiss his petition, Memon's last hope may be the Maharashtra Governor. However, it may mean that his execution won't be carried out on 30 July.
According to a Times India report, if the curative petition by Memon against the death penalty is upheld, then it would automatically stay the execution that is to be held on 30 July. The report also says that even if the plea is dismissed the Maharashtra government is not certain to push through the execution of memon the next day.
The scenarios that could emerge from Wednesday's hearing may include restoration of the curative petition. If restored, it would see the July 30 execution date automatically rendered null since the judicial process would be on. Or, Yakub's plea could be dismissed. In this case, legal experts are divided over whether execution can take place the very next day .