Not the end of Memon’s fight

Death warrants cannot be issued unilaterally by lower courts without following due process under Article 21: SC

July 22, 2015 01:58 am | Updated November 28, 2021 07:40 am IST - NEW DELHI:

The Supreme Court’s dismissal of the curative petition of Yakub Memon, the lone death row convict in the 1993 Mumbai serial blasts case, may not mean the end of his legal journey.

On May 27, a Bench of Justices A.K. Sikri and U.U. Lalit quashed the death warrant issued against a couple, Shabnam and Saleem, guilty of murdering seven members of a family. In its order, the Supreme Court laid down “essential safeguards” available to a death row convict before a death warrant was issued by a lower court.

The essence of this judgment was that death warrants could not be issued unilaterally by lower courts without following the due process of law under Article 21 of the Constitution. The Supreme Court sent a clear message that death row convicts had to be heard first before the courts fixed the time of their execution. Not doing so was against the principles of natural justice.

Lower courts were bound to issue prior and sufficient notice to the death row convict to enable him or her to consult his advocates and to be represented in the proceedings on the issuance of the warrant.

Besides this, a copy of the execution warrant must be immediately supplied to the convict and legal aid should be provided to the convict, if necessary.

Though the death warrant in the Memon case was not “open-ended”, whether the rest of the procedure was followed by the court was a question of fact on which a challenge may rise in a higher court of law.

Legal experts say that a writ petition can be filed in the Supreme Court on the basis of this judgment.

Mercy petition filed by Mr. Memon’s brother, Suleiman, to spare his brother's life was rejected by President Pranab Mukherjee in May 2014. But this does not prevent Yakub Memon from moving his own mercy petition as a matter of right, and even challenge its dismissal in a court of law.

Koli case

According to Mr. Memon’s long-time lawyer Shubail Farook, rejection of a mercy plea can be challenged in a constitutional court as was recently seen done in the case of Surendra Koli, Nithari serial killings convict. The Allahabad High Court had commuted Mr. Koli’s death sentence in the murder of 14-year-old Rimpa Haldar to life sentence on January 28, this year. The High Court had held there was “avoidable and unnecessary” delay of three years and three months in disposing of Mr. Koli’s mercy petition. It further held that Mr. Koli suffered solitary confinement all this time. Both inordinate delay and extended periods of solitary confinement are mitigating factors against death penalty.

Former Additional Solicitor-General Indira Jaising said it is justiciable to file a writ petition against the rejection of a mercy plea on the grounds of miscarriage of justice or even non-application of mind.

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