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Lawyer Dushyant Arora breaks down last night's Yakub Memon legal proceedings

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Asmita Bakshi
Asmita BakshiJul 30, 2015 | 18:40

Lawyer Dushyant Arora breaks down last night's Yakub Memon legal proceedings

There was a flurry of reports branding this as "unprecedented". What are the cases in which the Supreme Court has convened in the middle of the night and why do you think this was different?

It is unprecedented to the extent that the Supreme Court has never assembled inside the court premises for an open court hearing in the middle of the night. However, there have been instances when urgent matters have been mentioned at the residence of the chief justice of India. Surinder Koli's execution was stayed by the SC at 1.40am by three judges at the residence of the Chief Justice of India. 

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Can you give us an overview of the arguments of the petitioner?

The petitioners extensively relied on the following guidelines of the SC in Shatrughan Chauhan and Anr vs Union of India 2014"Some prison manuals do not provide for any minimum period between the rejection of the mercy petition being communicated to the prisoner and his family and the scheduled date of execution. Some prison manuals have a minimum period of one day, others have a minimum period of 14 days."

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 for the following reasons:- 

(a) It allows the prisoner to prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs.

(b) It allows the prisoner to have a last and final meeting with his family members. It also allows the prisoners’ family members to make arrangements to travel to the prison which may be located at a distant place and meet the prisoner for the last time. Without sufficient notice of the scheduled date of execution, the prisoners’ right to avail of judicial remedies will be thwarted and they will be prevented from having a final meeting with their families. It is the obligation of the superintendent of jail to see that the family members of the convict receive the message of communication of rejection of mercy petition in time."

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This was the primary ground stressed by the petitioners and argued at length last night. 

1. Convict has right to legal aid at all stages including after rejection of mercy petition. Superintendent of jail is duty-bound to intimate the convict and the nearest legal aid cell after the mercy petition is rejected. Counsel for petitioner alleged that this had not been done, hence Article 21 had been violated. 

2. The rejection of the mercy petition by the governor should forthwith be communicated to the convict and his family in writing or through some other mode of communication available. When the arguments started, the petitioner argued that this has not been done and even if it has been, they had no knowledge. (The AG later said that Yakub was served with written order rejecting the mercy petition at night.) 

3. The rejection of the mercy petition by the President should forthwith be communicated to the convict and his family in writing. Petitioner argued this was not followed. 

4. The mercy petition to the President in April 2014 was filed by Yakub's brother and couldn't displace his personal right to opt for mercy petition, the petitioner's counsel argued. 

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What were the arguments proffered by the attorney general (AG)?

The AG had the following counter arguments:

  1. Petitioner's arguments were a ruse to infinitely delay execution and later plead that execution should be stayed because excessive delay has happened.
  2. It was irrelevant whether it was Yakub Memon's brother who filed the petition or whether he filed it himself: the petition was filed "for" the convict.
  3. The petitioner had ample time to settle his affairs, and ccouldn't be permitted to file mercy petitions again and again.
  4. Prayer in latest petition sought "quashing" of warrant, even though the validity of warrant had already been upheld. So, prayers in the latest petition are faulty and hence petition should be dismissed. 

What was the basis of the decision?

The three-judge bench of the SC based their decision to reject the mercy plea on the folowing grounds:

1. Ample time was given to convict.

2. Execution warrant was communicated to Yakub Memon on July 13. Curative rejected on July 21. Memon's earlier mercy plea filed by brother dismissed on April 11, 2014. Ample time to settle affairs. AG informed the court that even the family was with convict.

Court said: "Any extension of time will be 'travesty of justice'." 

Procedurally, if a mercy petition is rejected a second time, can the date of rejection of the first one apply to the second when granting the 14-day period?

Answer to this will depend on facts and circumstances of each case. But clearly in this case the SC held that it can. 

Do you think Article 72 was wrongly interpreted? Why/why not?

Interpretation of 72 not raised before court. 72 is about discretionary power. No question of wrong interpretation. 

While people are lauding the bench for convening at 3am, the other side's opinion is that it was unnecessary and could have been done later today. Your thoughts?

Challenge to rejection of mercy petition was inevitable. I think that the court should have stayed execution until order on mercy petition was passed plus petition challenging order was heard. Don't agree with the argument that infinite petitions would be filed. Also don't agree that challenge to petition would have been prolonged. If court can sit at 3.30am and decide in 1.5 hours, surely the court could have decided the challenge the next day itself, thus avoiding the need for a 3am hearing.

However, broadly speaking it is heartening that the court is willing to hear petitions at such hours in matters which require urgent hearing. 

Do you think, and this one's the most widely debated one, Yakub was given due process? 

Firm opinion, yes.  

What role do you think the courts play in shaping the fate of the death penalty? Yes, it has evolved in the SC, but do you think they can participate actively in having it abolished/keeping it or do you think that can only be done by the legislature?

Yes, courts can abolish death penalty and hold it to be unconstitutional - no bar whatsoever. 

How, in your opinion, did public opinion shape this case procedurally (seen as it was unprecedented) and otherwise?

Only hearing was unprecedented. Don't think public opinion had any role to play in the late night hearing. 

(Disclaimer: Dushyant Arora had not read the complete judgment before answering these questions.)

Last updated: July 30, 2015 | 21:46
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