When SC opened its doors at 3 am for Yakub

Yakub Memon's mercy petition was rejected by a three-member bench amid high drama that saw the Supreme Court throwing its doors open in the middle of the night in an unprecedented move.

The Supreme Court dismissed 1993 Mumbai blasts convict Yakub Memon's last-minute attempt to escape the gallows by rejecting his plea for a stay on the death warrant.

"Stay of death warrant would be a travesty of justice. The plea is dismissed," said Justice Dipak Misra, heading a three-judge bench, in an order in Court Room 4 which was opened for an unprecedented 90-minute hearing that started at 3.20 am and ended a little before dawn.

The court's decision brought the curtains down on last ditch attempts by Memon's lawyers to stop the execution which was carried out at 7 am at Nagpur Central Jail.

The denouement came after fast-paced developments the whole of Wednesday when the Supreme Court had upheld the death warrant and President Pranab Mukherjee and Maharashtra Governor Ch Vidyasagar Rao rejecting Memon's mercy petition.

Late in the night, lawyers for Memon changed strategy and rushed to the residence Chief Justice of India H L Dattu and petitioned him for an urgent hearing to stay the hanging on the ground that 14 days time should be given to death row convict to enable him challenge the rejection and for other purposes.

After consultations, the CJI constituted the same three-judge bench that had earlier decided on the death warrant issue to go into the late night plea.

Senior lawyers Anand Grover and Yug Chowdhury said that the authorities were "hell bent" on executing Memon without giving him the right to challenge the rejection of his mercy petition by the President as right to life of a condemned prisoner last until his last breath.

Grover said a death row convict is entitled to 14 days reprieve after rejection of mercy plea for various purposes. Opposing Memon's plea, Attorney General Mukul Rohtagi contended that Memon's fresh plea amounts to abusing the system.

A death warrant upheld just 10 hours ago by three judges cannot be quashed, he said, adding that the whole attempt appeared to be to prolong the stay in jail and get the sentenced commuted.

Dictating the order, Justice Misra said ample opportunity was granted to the convict after rejection of the first mercy petition by the President on April 11, 2014 which was communicated to him on May 26, 2014.

He said the rejection could have been assailed before the Supreme Court.

Justice Misra observed that really ample time was granted after rejection of the first mercy petition to prepare himself for the last and final meeting with family members and all other purposes.

"As a consequence, if we have to stay the death warrant it would be a travesty of justice," the bench said, adding that "we do not find any merit in the writ petition".

Further, it said while pronouncing the order on Wednesday perceived any error in the death warrant issued by the Terrorist and Disruptive Activities (Prevention) Act court on April 30 for the execution on July 30.

In the instant case, it is a clear expose of assertion of concept of justice in a totally different backdrop, the court said.

The bench said the AG had submitted that at the drop of a hat one can add new challenges and developments and expect the President to act in exercise of power under Article 72 and thereafter on rejection of clemency they would challenge that in a court of law.

"We will be failing in our duty by allowing so," it said. The court observed that on the first glance the submissions made on behalf of Memon looked attractive but on finer consideration the case of the convict does not carry much weight.

Reacting to the order, Grover said it was a tragic mistake and a wrong decision.

The AG said the legal process has come to an end and it was not a question of victory. 

The condemned prisoner did not move the apex court when the President had rejected his mercy petition on April 4, 2014 which was communicated to him on May 26, 2014.

While maintaining that a convict after his conviction can at any stage make representation to a Constitutional authority like a governor and the President for pardon and remission of sentence, the bench said the mercy petition on Memon's behalf was moved to the President of which he had knowledge.

"In the instant case, Suleman, brother of the convict, on his behalf, submitted a mercy petition to the governor which was later decided by the President on April 11, 2014 and communicated to Memon on May 26, 2014," the bench noted.

It said it was not going into the second mercy plea in which grounds of him suffering from schizophrenia have been raised along with the fact that new evidence in the light of an article by a former Research and Analysis Wing officer has been taken for grant of leniency which was disputed by the attorney general.

The bench noted the sequence of events since the rejection of the second review petition on April 9, to the dismissal of the curative petition on July 21, 2015.

Memon's senior counsel Raju Ramachandran submitted that there was a procedural violation in the issuance of the death warrant on April 30 by a TADA judge in Mumbai for his execution on July 30.

They said the death warrant was issued while the curative petition was yet to be filed.

Further, while the TADA court had granted 90 days notice for his execution, Memon was served with the notice about his execution on July 13 by the Maharashtra government, giving him just 17 days time before his execution, which suffers from incurable procedural irregularity, Ramachandran said.

The counsel for Memon also submitted that the second mercy petition to the governor was filed on July 22 and until it is decided, the death warrant cannot be executed.

While holding that there was no legal fault in the TADA court issuing the death warrant, the bench said the May 27, 2015 judgment in the Shabnam case, laying the guidelines for it, was not applicable with retrospective effect as the warrant was issued before the verdict.

Memon's lawyer had contended that non-application of the guidelines was in violation of Article 21 of the Constitution.

However, the bench said the "postulations laid in the Shabnam case held that sufficient notice has to be given to the convict before issuance of the death warrant so as to enable him to consult his advocate."

"That being the purpose, it has to be seen in the proper perspective of the case," the judges said and added the state government informed him about the execution on July 13 and the curative petition was filed on May 22 and therefore, "he cannot take the plea that he did not had the legal remedies."

Noting that the curative petition was dismissed on July 21, the bench said "In our view the purpose behind the said mandate has been complied in the case."