As 1993 Mumbai serial Mumbai bomb blasts convict Yakub Memon Monday told the Supreme Court that he could not be executed on July 30 as this would be in "flagrant" violation of the court's earlier directions, the central government strongly opposed it saying that he has already exhausted all the legal and administrative remedies.
However, a bench of Justice Anil R. Dave and Justice Kurian Joseph adjourned the hearing as Justice Joseph raised doubts over the composition of the bench that had rejected Memon's curative petition on July 21.
Hearing will commence on Tuesday when the court would be addressed on the question whether bench that heard the curative petition was in accord with the Supreme Court Rules.
"The matter ends here. Then that is the end of the matter," Justice Dave observed as Attorney General Mukul Rohatgi took the court through the list of the dates starting with the pronouncement of judgment on March 21, 2013 by the apex court upholding Memon's death sentence, rejection of his two review petitions and curative petition and rejection of his mercy petition both by the president and the Maharashtra governor.
"There is no authority left to be moved now," Rohatgi said.
At this, Justice Kurian observed: "You go with a begging bowl only when your legal remedies are over. You don't go for mercy petition when one has a legal right."
He said this as Rohatgi said that a mercy petition can only be filed if permissible under law. After the mercy petition has been rejected by the president and the governor in 2014, the same can't be moved again as fact and circumstance of the case remain the same, he added, citing the second mercy petition by Memon addressed to Maharashtra governor soon after the rejection of curative petition on July 21.
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Justice Kurian also raised objection to the curative bench's composition, saying "it is inconceivable that three judges who had heard the review petition for ten days were not, except for one (Justice Dave), on the curative bench".
He cited Order 48, Rule 4 (1) of the Supreme Court Rules which says: "The curative petition shall be first circulated to a Bench of the three senior-most judges and the judges who passed the judgment complained of, if available."
Noting that of these judges who delivered the March 21, 2013 judgment upholding Memon's death sentence, two - Justice P.Sathasivam (later the chief justice) and Justice B.S.Chauhan - are now retired, Justice Kurian said: "It is not all the more reason that it (curative petition) should go to the judges who had heard the review petition" in the open court.
As Rohatgi said in that case, the strength of the bench would have gone to six, Justice Kurian said: "Curative petitions have gone to seven judges also."
He also expressed some misgivings about the order passed in the rejection of curative petition.
As Justice Dave said that "someone can file curative petition after three years", Memon's counsel Raju Ramachandran said that the review petition was rejected on April 9 and he was informed about it on April 21 and next day, he wrote to prison authorities that he would be moving a curative petition.
He told the court that the day Memon was told about the rejection of his review petition, the jail superintendent told him that he could file curative petition and mercy petition before the president and the governor.
As senior counsel T.R.Andhyarujuina sought to bring to the notice of the court article written by former intelligence agency RAW official B.Raman on the understanding under which Memon had come to India to face trial, Rohatgi sought to reject it saying that it article was by a former officer who is not alive.
Ramachandran also said that the execution of Memon can't take place on July 30 as it was "beyond the law and the constitution and in flagrant violation of the direction of this court", noting that the government obtained the death warrant on April 30 from the TADA court while curative petition was filed on May 12.
Memon was not even informed about the death warrant otherwise he could have told the TADA judge of his intention of moving a curative petition, he said.
Ramachandran told the court that the TADA court while issuing the death warrant gave 90 days' time for the execution on July 30, but the government sat over it and it was only on May 13 that Memon was informed about it while the curative petition was still pending.