On the morning of July 29, a constitutional bench of the
Supreme Court headed by the chief justice was hearing whether the assassins of
Rajiv Gandhi should be released from jail or not in Court Number 1. Suddenly a
commotion broke out outside the room. Some of us rushed out to check.
Proceedings in the Yakub Memon case had begun in adjoining Court Number 4. As I sat in the front row of the chief justice’s court, focusing on our matter, a few lawyers and journalists slipped in and out, whispering in the ears of the counsels about Yakub’s hearing.
I had little idea of what Yakub’s lawyers were arguing to Justice Dipak Misra who was chairing the three-judge bench. Memon was represented by eminent advocates: T. R. Andhyarujina, Raju Ramachandran and Anand Grover, senior counsels, along with a team from Delhi’s National Law University, the Death Penalty Litigation Group.
At 1 p.m., the court broke for lunch, and I rushed to Court Number 4, but the courtroom was so packed that I could not enter. Outside, however, mostly among journalists, the buzz was “Arre yeh petition dismiss hone wali hai.” (“The petition is going to be dismissed”).
They were talking about Yakub’s family, mainly his daughter. During lunch, our teammates in Court Number 4 seemed sceptical about Memon’s chances. As a novice member of this group, all I did was observe. After lunch I returned to Court Number 1, but my thoughts were on Memon: the 1993 blasts and the trial that followed. Mostly though, it was Yakub’s daughter who occupied my mind: what would she be thinking as her father’s life hung in balance; how would she cope with his hanging if his petition failed?
y 4 p.m., Memon’s fate had been decided. His petition had been dismissed. Tension and disquiet was writ large on the face of his counsels. For the first time I felt inexplicable grief in a legal battle in which I was neither involved nor had read a single page of the petition. I called my friend Mrinal who has excellent knowledge of prison systems to discuss all this. While I was talking to her, I saw one of Yakub’s counsels deep in conversation with a member of our team, Siddhartha Sharma, who focuses on the death penalty and has significant experience in dealing with these kinds of cases. I rushed to them. Siddhartha was suggesting the possibility of another petition—as the last resort. With the consent of all, work on this petition started in feverish earnest.
We gathered at the Jagdish Swarup E-Library of the Supreme Court and started drafting the petition. Advocate Rishab Sancheti, another member of our team, asked me to go to the office of the advocate-on-record (AoR) in the C. K. Daphtary block. Just as I was about to leave, Rishab asked me to become the pairokar for Yakub. This simply meant I had to become “friend of the convict” and attest that the documents were being filed on behalf of the convict. I gave my consent and quickly reached the AoR’s office to prepare the affidavit and other papers. By then, it was almost 6 p.m. and we were racing against time.
Anindita Pujari, our AoR, asked me to check on the deputy registrar on duty in order to file this urgent petition on Yakub’s behalf. The deputy registrar informed us that she was on her way to the Supreme Court as two more petitions were being filed for Yakub. We had no idea about these petitions and we waited for her. Meanwhile news reports were telling us that the President had rejected Memon’s last mercy petition.
By now, it was around 8.30 p.m. We began calling up other senior counsels and advocates, appealing to them to join us. Around then, the registrar also arrived and asked us to come inside his room. The security protocols, the police personnel said, meant we had to provide the names of five people who would go inside to meet the registrar. We decided upon Rishab, Anindita and Anand Grover from our side. Two other advocates who also filed petitions had given their names. The Registry after listening to all the parties accepted only this petition, and asked us to wait for hearing. It was a slightly odd exercise for most of us, entering the Supreme Court after dark.
Lily Thomas, a renowned lawyer and a very senior member of the Bar, reached the court to try to rescue Yakub from execution. Lily, who is in her late 80s, came alone with her petition which had a single point argument, that the “death penalty should be abolished in India”. Though the Supreme Court Registry refused her petition, her presence gave us strength and reflected support for commutation of the death sentence.
Around 11 p.m., we moved to 5 Krishna Menon Marg in the hope of getting the matter listed for hearing at the CJI’s residence. We found the media already there, telecasting live. A strong force of abolitionist lawyers including Yug Mohit Chaudhry, Nitya Ramakrishnan, Vrinda Grover, Prashant Bhushan and Anand Grover was ready to fight this last battle to avert the execution. The grounds of this petition concentrated mainly on the procedure set by this court itself in the Shatrughan Chauhan case. Therefore the principal argument derived from Supreme Court guidelines in the Shatrughan Chauhan v Union of India, Writ Petition (Criminal) 55 of 2013.
The SC had held the following in the case: “It is necessary that a minimum of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and scheduled date of execution.” Since the President had rejected his last mercy petition few hours ago, Memon was entitled to the 14 days time as per guidelines. Those 14 days would be for him to prepare for execution, making his will, meeting friends and family, and to remember god.
I was flustered but optimistic, hoping the court could take our submission on account, and provide relief. We were sitting outside the CJI’s residence around 00.30 a.m. and neither we nor the media had any clue about what would happen next. Suddenly we came to know that the hearing might take place at Justice Misra’s home. We moved to his Tughlak Road residence. But police had blocked the road from both sides and nobody was allowed to enter.
We were waiting outside the Tughlak Road police station when we received a call from the Registry that the hearing would take place in open court.
t 2 a.m. on July 30, we gathered again inside Court Number 4. It was an unprecedented night when the Supreme Court opened its gates and the library for the first time to deliver justice and sustain the rule of law. Proceedings began at 3.30 a.m. Our team of lawyers had advanced the submissions and put forth all essential points before the bench to record. Arguments went on for an hour or perhaps a little longer. At 5 a.m., the order upheld Yakub’s execution at the scheduled hour. Following the order, lawyers, the media, researchers and onlookers started to head back home.
At 7 a.m. Yakub Memon was executed. It was touted as “closure” by some; as conclusion of the due process of law by others. But the question that still haunts me is this: why did the Bench not consider the crucial point that his last mercy petition was rejected by the Home Ministry in a clearly predetermined manner without properly examining the fresh grounds? Why did they not acknowledge mitigating facts that surfaced after B. Raman’s article? Is not even the slightest iota of doubt cause enough to commute this final and irreversible punishment? Comparisons will also be drawn with the commutation of the death sentence of Davindra Pal Singh Bhullar on grounds that he was suffering from schizophrenia. The apex court chose to disregard Memon’s long history of mental illness.
In India there are hundreds of convicts on death row, living in misery because of procedural lapses and indecisive behaviour of our executives. However, Yakub’s verdict has initiated a debate in society on our sentencing policy and present penal statutes. At the same time resolution passed by the Tripura State Assembly is a welcome step. Can we hope that our lawmakers will come up with a comprehensive and equitable penal policy soon?