The Supreme Court split in half over over the execution of Yakub Memon with one judge staying his death warrant, while the other agreeing with the Maharashtra government that Memon deserves to be hanged for his role in the 1993 Mumbai blasts.
Now, Memon's plea has been referred to the Chief Justice of India H.L. Dattu who has been asked to constitute another Bench which will “preferably hear it tomorrow.”
The lead judge of the Bench Justice A R Dave rejected Memon's petition in a brief order while merely mentioning that the mercy plea was pending before the Maharashtra Governor and left it to him to exercise his discretion on the clemency plea before or after July 30.
However, Justice Kurian Joseph in a detailed order said there was procedural violation in the way Memon's plea was dealt with by the Supreme Court.
“The curative petition itself has not been decided as per the Supreme Court rules. The defects need to be cured first, otherwise there is a clear violation of Article 21 of the Constitution in this case,”Justice Joseph said in his order.
Refusing Attorney General Mukul Rohatgi's arguments that the curative petition was not under discussion in the current proceedings, Justice Joseph said that the argument was just a technicality.
“Such technicalities should not stand in way justice is being done. As protectors of life, the Supreme Court has come to take note of the position that a procedure has been violated in a case dealing with the life of a person after all law is for man and in such cases, law is never helpless and this court is never powerless,”Justice Joseph said.
Justice Joseph went on to stay the death warrant issued on April 30 by the TADA court in Mumbai fixing the date of hanging on July 30, saying that the curative petition is now required to be considered afresh in terms of Order 48, Rule 4 of the Supreme Court Rule 2013 dealing with the procedure mandated to be dealing with curative petitions.
After Justice Joseph delivered his order, Justice Dave took up the podium again to pronounce the common order addressed to the administration side of the Supreme Court to alert the Chief Justice of India that the current was in disagreement.
PTI reports
In the common order, the Bench referred the matter to Chief Justice of India H L Dattu to take an urgent call at 4 pm in view of the divergence of opinion on the issue of death warrant.
The Bench also requested the Chief Justice to constitute an appropriate bench and list the matter for hearing on Wednesday.
