The Supreme Court on Monday stayed the execution of the death sentence of Yakub Abdul Razak Memon, “mastermind” of the 1993 Mumbai serial blasts.
A Bench comprising Justices J.S. Khehar and C. Nagappan on Monday issued notice to the Maharashtra government and the Union of India on Memon’s writ petition. Staying the execution proceedings, the Bench further referred the petition to a Constitution Bench.
It will now be tagged along with an identical plea filed earlier by another death-row convict, Mohammed Arif, a Pakistan national and main accused in the 2000 Red Fort attack case.
The court had recently stayed the execution of the death sentence of Arif.
From his “death cell” at Nagpur Central Prison, Memon questioned the legality and constitutional validity of Order XL Rule 3 of the Supreme Court Rules, 1966, which prescribes that judges can choose to hear and dismiss review petitions by “circulation” — in judges’ chambers — rather than in open court with the convict allowed to make oral arguments.
He also argued that the Bench reviewing the death sentence should have a minimum strength of at least three judges as the issue involves taking a person’s life.
In his petition, Memon pointed to how the Supreme Court had dismissed his review petition against death penalty in 2013 without giving him the right to oral audience. In such cases of review, he argued that “the convict must be left with no doubt in his mind that every possible opportunity was given to him under the Constitution of India before his life was taken away following the procedure established by law.”
Instead, this rule “makes no exception for death sentence cases, which, by judicial definition, are treated as rarest of the rare.” He termed it a case of “treating unequals equally,” whereby death sentence cases are reviewed the same way as any other civil and criminal review petition “though the ramifications and consequences of such matters include the heavy cost of human life.”
“I would draw distinction between killing and detention and even corporal punishment. I think there is a difference not merely in quantity but also in quality. I can recall the punishment of detention. I can make reparation to the man upon whom I inflict corporal punishment. But once a man is killed, the punishment is beyond recall or reparation,” Memon quoted Mahatma Gandhi, saying this is a principle oft-seen in the court’s own judgments dealing with the legality of capital punishment.
Memon alleged that he has been twice punished with incarceration of 20 years without bail since 1984, followed by the death sentence. The petition said he suffers from memory and psychiatric disorders.
The 1993 blasts in 12 crowded areas of Mumbai claimed over 200 lives.