DC Debate: The number of mercy petitions that can be filed to save a life

Curative petition dismissal is final

Almost four decades ago, the Supreme Court, speaking through Justice V.R. Krishna Iyer, declared in G. Krishtagoud vs AP state that “rejection of one clemency petition does not exhaust the power of the President or the Governor.”

A second mercy petition is maintainable technically. Unless the second mercy petition contains new material or new grounds, it serves no purpose. The fact that 1993 Mumbai blasts convict Yakub Memon’s earlier petition was rejected by the UPA government is not a ground of substance. His second petition was substantially the same as the first petition filed by his brother on his behalf, which was rejected before the recent writ petitions were filed in the Supreme Court.

There is no provision in the law for filing writ petitions one after the other after a curative petition is dismissed. The first writ petition was heard and disposed of a day earlier. The second writ petition could not have been filed immediately thereafter unless it was kept ready by the time the first petition was disposed of. One can appreciate the zeal of the lawyers but not the futile exercise which added suspense to the agony of the convict detracting his attention from his intense prayers to the Almighty for the peace of his soul after execution.

I was asked by the former president of our club: “What is this midnight tamasha in the Supreme Court?” I told him this is the glory of the Indian judicial system. I salute the judges and the lawyers who sacrificing their legitimate rest and sleep, sat through the night; the lawyers hoping to get the execution stayed and the court conscientiously taking up the petition, hearing it in open court at length and dictating the order in the wee hours of the day.

At the same time, I am against adventurous litigation causing undue hardship and inconvenience to the Judges without any benefit to the convict. Once, Justice M. Hidayatullah remarked in open court: “There is an Act called the Prevention of Cruelty to Animals Act, 1960 but there is no law to prevent cruelty to judges.” Even the President of India had to deal with the second mercy petition and dispose it off that very night keeping in view the deadline for the execution.

Yakub Memon had the satisfaction of meeting his kith and kin in Nagpur jail on July 29 itself, unlike Afzal Guru, who was unjustifiably, denied such satisfaction. I am against the death sentence which serves no purpose unless it is carried out within a reasonable time. It does not deter terrorists and suicide squads, who are always prepared to die while killing others.

The death sentence punishes family members more than the convict. The execution of death sentence several years after it was imposed first is inhuman. On this ground alone, the death sentence awarded to Yakub Memon should have been commuted to life.

Parliament should abolish the death sentence and try to provide for reform of all convicts, particularly, the condemned prisoners and help them to become normal, law abiding citizens. (P.P. Rao, a senior advocate in the Supreme Court)

Yakub’s multiple petitions not illegal

The Indian Constitution and legal system provided the right to the citizen of the country to seek justice by filing an abundance of petitions. No one has the right to question his fundamental right when a person is trying to avail legal and constitutional remedies till his last breath.

Whoever questions such legitimate right can be termed as obstructionist of the judicial process and also an anti-humanist. There was nothing wrong or illegal on the part of Yakub Memon, convict in the 1993 Mumbai serial blasts, in moving the courts by filing a number of petitions and also seeking mercy from the Governor and the President to save his life.

If moving petitions one after another is wrong or illegal, why did the judges of the Supreme Court hold proceedings in the middle of the night, a few hours before his execution. It was his fundamental right guaranteed under the Constitution and that’s why the Constitution makers provide an opportunity to even the guilty to express his last wish before his execution. His last wish claiming innocence may not be accepted a few minutes before the execution, but it gave him a sense of relief before his death that he claimed his innocence.

There is no bar in either the legal system or in the constitutional process for an affected citizen to knock the door of the judiciary only in its working hours. The affected party has the right to move the court at any point of time, 24 hours of a day. It is for the judiciary to examine the urgency and decide whether the grievance of the party is to be heard or not.

The several levels of the judicial system in India allows for repeated appeals, give the accused multiple opportunities to address issues of faulty counsel or judicial impropriety and at least get justice at any of these layers. The verdict against Yakub Memon at the trial court is itself against the principles of natural justice. The trial court had erred in appreciating the fact that he never participated in the execution of the blasts.

The charge against him was that he has assisted the perpetrators in procuring the ammunition and another crucial fact was that he surrendered and cooperated with the investigation agency in proving the offence. Indian criminal jurisprudence provides certain safeguards for the surrendered accused. But none of them were considered by the trial court while awarding capital punishment to Yakub Memon who was a surrendered accused.

When one looks into the case of cine actor Sanjay Dutt, the charge against him was that he concealed a part of the consignment of weapons that were procured for the Mumbai blasts. Dutt’s act was nothing but assisting the perpetrators.

Moreover, he did not surrender. He was arrested by the police on the information of his father, actor-turned-politician Sunil Dutt, but he was awarded five years of imprisonment by the apex court. The trial court also erred in considering the gravity of the charges against Yakub Memon. (Bojja Tharakam, A Senior advocate at Hyderabad HC and human rights activist)