Supreme Court Upholds Death Warrant in Yakub Memon Case, Dismisses Writ Petition Challenging Execution

Bench Rules Curative Petition Properly Heard, Death Warrant Issuance Complies with Legal Safeguards Despite Pending Second Mercy Petition

In a significant judgment dated July 29, 2015, the Supreme Court of India dismissed the writ petition filed by Yakub Abdul Razak Memon, a convict sentenced to death for his role in the 1993 Bombay blasts under the Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987. The petitioner sought to stay the execution of his death sentence scheduled for July 30, 2015, pending the disposal of a second mercy petition filed by his brother, after earlier mercy petitions had been rejected by both the Governor of Maharashtra and the President of India.

The case was heard by a three-judge Bench comprising Justices Dipak Misra, Prafulla C. Pant, and Amitava Roy, following a division of opinion between two other Supreme Court judges on the constitutionality and procedural propriety relating to the curative petition filed by the petitioner.

Justice Anil R. Dave had earlier dismissed the writ petition, emphasizing that the petitioner’s conviction and death sentence had been affirmed by this Court, and that his review and curative petitions were also dismissed. He noted that the President and Governor had rejected mercy pleas, and while a subsequent mercy petition was pending, the execution schedule was valid.

However, Justice Kurian Joseph dissented, highlighting procedural irregularities in the curative petition’s adjudication. He contended that the curative petition was not heard by the constitutionally mandated Bench of the three senior-most judges and the judges who passed the judgment under challenge, as required by Rule 4 of Order 48 of the Supreme Court Rules, 2013. He ordered a stay on the death warrant until the curative petition was correctly considered.

Addressing this conflict, the larger Bench held that the curative petition heard by three senior-most judges, though not including the original judges who delivered the main judgment (who were no longer available), was valid and in accordance with legal provisions. The Court explained that while the curative petition challenges the main judgment (and not the review judgment), the absence of original judges is understandable given their unavailability, and the Chief Justice’s discretion in constituting the Bench must be respected.

On the merits, the Court noted the extensive legal process the petitioner had undergone, including the original trial, appeal, review, and curative petition, all upheld by this Court. The Court affirmed that the death warrant issued by the TADA Court on April 30, 2015, directing execution on July 30, 2015, was legally valid. The petitioner was served the death warrant on July 13, 2015, thus complying with the procedural safeguards laid down by this Court in earlier precedents such as Shatrughan Chauhan v. Union of India and Shabnam v. Union of India. These rulings mandate that sufficient notice must be given to allow the convict to consult lawyers, prepare mentally and legally, and have a last meeting with family.

While the petitioner’s counsel argued that the issuance of the warrant violated procedural requirements because the TADA Court did not hear the petitioner on the date of the warrant issuance, the Supreme Court found that the petitioner had availed multiple opportunities to contest his conviction and sentence, including a 10-day hearing on the review petition. The Court held that the procedural safeguards were adequately met.

Regarding the second mercy petition filed by the petitioner’s brother on July 22, 2015, the Court acknowledged that while another mercy petition can be filed under Articles 72 and 161 of the Constitution, and may be challenged on limited grounds, the issuance of the death warrant was not invalidated by the pending petition. The Court declined to interfere in the executive’s decision-making process on mercy petitions.

In conclusion, the Supreme Court dismissed the writ petition, upheld the validity of the death warrant, and ruled that the curative petition was properly decided. The Court emphasized that the convict’s constitutional rights, including the right to life under Article 21 and the right to fair procedure, were duly safeguarded throughout the process.

Statutory provisions

Constitution of India, 1950 - Articles 21, 32, 72, 141, 142, 161;

Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section relating to death sentence;

Criminal Procedure Code, 1973 - Sections 413, 414;

Supreme Court Rules, 1966 - Order 40 Rule 3;

Supreme Court Rules, 2013 - Order 48 Rule 4.

Yakub Abdul Razak Memon v. State of Maharashtra, Thr. the Secretary, Home Department (SC) : Law Finder Doc Id # 696816