On Monday, the Supreme Court will hear a “limited” plea by Yakub Memon, the lone death row convict 1993 Mumbai serial blasts, that his death warrant was issued in undue haste before his legal remedies were exhausted.
But there is a high possibility that the hearing will not be confined to just this petition.
The Supreme Court bench of Justices Anil R. Dave and Kurian Joseph may use the hearing on Monday as a platform to trigger the court's exceptional powers under Article 32 of the Constitution and take cognisance of an article written by a former R&AW top officer B. Raman favouring clemency to Memon for co-operating with investigating agencies to unravel the blasts probe.
>The article , if found true, serves as a strong “mitigating factor” to re-consider the death penalty awarded to Memon. The apex court could take a re-look at the sentencing in the light of the new circumstances, and consider commuting his death sentence to life.
“The article is in public domain, and so the court under Article 32 can suo motu take cognisance of a document of that nature. Without discounting the tragedy of the blasts, Memon did provide valuable information about Pakistan involvement in the blasts, in the training and handling of explosives. Evidence was collected on the basis of information given by him. He performed valuable services to the nation, and if we had promised him that this would be taken as a mitigating factor in court, we as a nation should keep our promises,” senior advocate and Rajya Sabha MP K.T.S Tulsi said.
Mr. Tulsi is one of the signatories in a petition submitted before the President to re-consider the death penalty to Memon.
But strangely, it was left to Mr. Raman to expose Memon's co-operation with the agencies and highlight it as a mitigating circumstance for clemency. Why has Memon himself been singularly quiet about these circumstances and not seek clemency on their strength even as successive courts dismissed his appeals, review petitions and curative petition.
“May be he did not know the implication of the fact that his help to the agencies would be a mitigating circumstance in court for commuting death penalty. May be he was precluded from saying anything. May be his lawyer did not present it in courts... There are many points which the apex court should consider now,” a legal expert, said on the condition of anonymity.
Former Supreme Court judge, Justice K.T. Thomas, said it is time to re-consider the majority decision of the Supreme Court in the Bachan Singh case, which upheld the death penalty as constitutional.
In re-considering Memon's death penalty, the Supreme Court has to also follow the principle set out in its April 2013 judgment in Shanker Kisan Rao Khade vs Maharashtra case that capital punishment can be awarded only if there is “zero mitigating circumstances” favouring the convict.
Again, the judgment held that death penalty should not be given merely because the judge concerned thinks it fit. The award of death penalty should be “society-centric”, that is the litmus test is whether the society will approve the awarding of death sentence or not. To accomplish this, the court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to the crime.
“Courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges,” the Supreme Court held.