When enthusiasm becomes subversion

 Yakub Memon's case was taken up by a Division Bench of the Supreme Court consisting of Justices A.R.Dave and Kurian Joseph on 27th July. This petition has been filed after the normally available judicial remedies , that is Review Petition and Curative Petition, were dismissed by the Supreme Court.
According to "Supreme Court of India: Practice and Procedure", a curative petition has to be circulated among three senior most judges and such serving judges who were members of the Bench which passed the judgement / order, subject matter of the petition. The relevant extract is given below:

"F. Curative petition:
As laid down by this Court in the case of Rupa Ashok Hurrah
vs. Ashok Hurrah 2002 (4) SCC 388, even after dismissal of a review
petition under Article 137 of the Constitution, Supreme Court, may
entertain a curative petition and reconsider its judgment/order, in
exercise of its inherent powers in order to prevent abuse of its process,
to cure gross miscarriage of justice and such a petition can be filed
only if a Senior Advocate certifies that it meets the requirements of this
case. Such a petition is to be first circulated, in chambers, before a
Bench comprising of three senior most judges and such serving judges
who were members of the Bench which passed the judgment/order,
subject matter of the petition."

There is no reference to Curative Petition in our Constitution. This additional judicial remedy has been introduced by the apex court. Objective of this provision is to prevent miscarriage of justice and not to use this tool as a dilatory weapon.

The extract given above is clear that any curative petition has to be circulated, apart from three senior most judges, among members of the Bench which passed the judgement which is the subject matter of the petition. The reference here is not to the judgement on the review petition, but the judgement on the original petition.

It is easy for an enthusiast to get carried away. This is what happened to Justice Kurian Joseph. In the process, justice was inadvertently subverted. Justice Dave made a desperate observation that such interpretations as made by Justice Kurian Joseph will only lead to inconclusive judicial proceedings. (Justice Kurian Joseph was not in the Bench that dealt with the original petition, he was only in the Bench that took up the Review Petition.) Justice Kurian Joseph's contention is both substantively and technically incorrect, enabling, albeit unintentionally, a tragic abuse of the judicial process.

Consequently, the case is being referred to a larger Bench. Division Bench consisting of two judges has of late become dysfunctional leading to dilatoriness because of contradictory views of two judges. A fair judicial system needs to ensure that proven criminals do not enjoy some imaginary rights at the cost of natural justice to the victims. No judge, howsoever enthusiastic or rebellious, has a right to torpedo this salient principle.

Clemency for Yakub Memon?

There is a lot of demand from articulate sections that the death sentence on Yakub Memon should be commuted to life sentence.  There is unanimity that he is guilty, but these articulate persons are of the view that he is not guilty enough to face the gallows.

Mr.B.Raman, a former RAW official, had opined that Yakub Memon's life should be spared because he was co-operative and with his assistance, we could make headway in cracking the case.

Some advocates of leniency have put a spin on Raman's plea and have concluded that Yakub Memon had surrendered of his own volition and that there was a deal between him and the government that he would not face death sentence. Facts seem to be otherwise. Memon was taken into custody in Kathmandu by the Nepalese security forces because of his suspicious behaviour and after investigation, he was packed off to Delhi. Given this fact, any 'deal' with the government of India was unnecessary and unlikely.

It is note-worthy that he did not refer to any such understanding in the court proceedings at any stage.

Mr.Raman based his plea for clemency on the basis of Yakub Memon's co-operation. In a dastardly crime, co-operation of the guilty is not a ground for leniency. A murderer is not entitled to lesser punishment simply because of confession and enumeration of crime details.

It is true that many persons on the death row have obtained relief from the court. Each case is unique and cannot act as an unexceptional precedent for others.

Shouldn't an opportunity be given to Yakub Memon to reform himself and turn a new leaf? This argument is fallacious because he is too well-educated to have been unaware of the consequences of his action. Ancient Indian jurisprudence required a more deterrent punishment for the educated criminals.

It is pleaded that he is sought to be executed because he is a brother of Tiger Memon who was the brain behind the bomb blasts and who is now absconding. The Supreme Court has judged him on his conduct and not as a brother of Tiger Memon. Relationship with the latter cannot conveniently be trotted out as a mitigating factor.