Noting that law is after all for man, >Justice Kurian Joseph stood between lone death row convict in 1993 Mumbai serial blasts case Yakub Memon and the noose prepared for him at Nagpur Central Jail on July 30.
A divided two-judge bench on Tuesday saw Justice Anil R. Dave reject Memon's contention that Maharashtra government showed undue haste to have him executed.
Justice Dave, the lead judge on the bench, said Memon's remedies have been exhausted and a clemency plea pending before the Maharashtra Governor has nothing to do with the Supreme Court.
When his turn came, Justice Joseph, in a separate order, began by saying he disagreed with Justice Dave.
"After all law is for man, and law is never helpless and particularly the Supreme Court, which is the repository of high powers and protector of life, shall not be rendered powerless," Justice Joseph observed.
Staying the death warrant, Justice Joseph said the apex court did not follow the mandatory rules of procedure while constituting the bench of judges which dismissed the curative petition.
Justice Joseph observed that the Supreme Court committed serious procedural violation under Order 48, Rule 4 of the Supreme Court Rules, 2013 by not including all the judges, including himself, who heard Memon's review petition in the subsequent curative process.
Dismissing Attorney General Mukul Rohatgi's argument that this was only a technical hitch, Justice Joseph said this procedural lapse almost cost a man his life and would lead to miscarriage of justice.
He said a prisoner, especially a death row convict, is entitled to the due process of law under Article 21 of the Constitution.
"The curative petition (of Memon) requires to be considered afresh in terms of Order 48, Rule 4 of the Supreme Court Rules, 2013," Justice Joseph held, stalling the case.
The disagreement between the two judges has now resulted in the case being referred back to Chief Justice of India H.L. Dattu for setting up a new and larger bench of at least three judges.
In a common order, Justice Dave requested the CJI to form a bench today itself and "preferably" post the case for hearing on July 29, the eve of Memon's scheduled execution.
Memon's lawyer and senior advocate Raju Ramachandran, post lunch, also made an urgent mention before the CJI to have the case for hearing on July 29.
"I will constitute the bench," Chief Justice Dattu assured Mr. Ramachandran after taking the opinion of Mr. Rohatgi who was also present at the mentioning before the First Court.
Earlier in the day, before the two-judge bench, Mr. Rohatgi conveyed the NDA government's determination to send Memon to the gallows.
"Please remember the blasts happened in 1993 and we have full respect for the law. Memon went through the complete judicial process of review petitions, curative, mercy petitions before the Governor and the President. There is no doubt left now that this man has to the gallows," Mr. Rohatgi sent.
"The blasts happened 25 years ago... but the pain of the 257 families will not go away... how many petitions will he go on filing endlessly," the AG said.
To this, senior advocate T.R. Andhyarujina quoted from a Supreme Court precedent that a death row convict has a "right to be heard till the last breath".
"We will ensure that he is able to be heard even as the noose is tied around his neck," Mr. Andhyarujina, who appears for Death Penalty Litigation Clinic associated with the National Law University Delhi, said.
Hanging in the balance
A little over 20 years after 13 co-ordinated blasts rocked Mumbai, killing 257 and injuring over 700, the lone convict on death, Yakub Abdul Razak Memon, could be hanged on July 30 if the SC rejects his curative petition against death sentence.
Here's a snapshot of the debates surrounding Yakub's case and the ethics of the death penalty and its finality.>From messenger to mastermind
Yakub Memon would pay for his brother's sins and become the only man to be sentenced to death in the Mumbai blasts case.
>Trial and error
Trial courts have been handing out death sentences at the rate of ten a month for the last 15 years.
>Why the death penalty must end:
The world is moving away from using the death penalty. The European Union has made "abolition of death penalty" a prerequisite for membership: says Kanimozhi
Timeline
>A case for mercy
Hanging Yakub Memon will be cruel and inhuman, for more than one reason
>From 'best' CA to death row detenu
Yakub was once named the best chartered accountant by the Memon community
>Justice or vengeance?
Procedure followed to obtain death warrant for Yakub Memon suffers from serious constitutional flaws
>Yakub Memon and the story of the death penalty
This will be India's third execution since it lifted its informal 8-year moratorium