Behind the unprecedented pre-dawn hearing for a petition to save ’93 blasts convict Yakub Memon from the noose was a team of advocates in Delhi who were testing to see if the Indian judicial system could uphold the rights of a death row prisoner, as is granted by the Constitution of India.
Yakub Memon and Advocate Rishabh Sancheti
While Memon couldn’t be saved, the events that unfolded in the dead of night, the team said, signified that India’s justice system could still protect the rights of a death row convict until the very last second of his life.
Yakub Memon's execution: Timeline of events since 1993 Mumbai blasts
A team of five advocates worked on the final plea of the terror convict, all of whom got together in a tiny room in the apex court on Wednesday to draft the petition without asking, “What is in it for us?” The team included top-notch lawyers from the Capital, who came together, pro bono, for the case.
None of them had any connection to Memon’s defence team, nor were they related to the family. The team was attempting to save their 23rd prisoner on a death row, having previously saved Madanlal Barela, a poor tribal from Madhya Pradesh, who was set to go to the gallows at 5 am on a cold morning in 2013.
Even on that occasion, like in the Memon case, the team even had petitioned the Chief Justice of India (CJI), though a little earlier (7 pm), and managed to get a stay by 12.30 am. A battery of senior lawyers like Prashant Bhushan, Vrinda Grover, Raju Ramchandran (defence for Memon) and other prominent advocates was also present outside the CJI’s house in the night.
The group comprises advocates Rishabh Sancheti (who had argued in the Barela case), Sidharth Sharma, Yug Chaudhry, Paari, and Prabhu (who had drafted the petition in the Barela case). The entire team toiled from 4 pm on July 29 to 6.15 am the next day with a common commitment of exercising the convict’s rights until he went to the gallows.
“When we try to save a person, we don’t judge his conduct. We just see if he still has a right to be upheld under the Constitution. Today, while a life was lost, it was a victory for the Indian justice system,” said Sancheti, who also argued in the landmark Shatrughan Chauhan case, in which the Supreme Court narrowed down the grounds on which capital punishment can be imposed even in heinous cases, while commuting the death penalty of 15 prisoners to life imprisonment on January 21, 2014.
Sancheti was also the counsel in a similar plea floated on behalf of Santhan, Murugan and Perarivalan, convicts in the Rajiv Gandhi assassination case. “This country is already guilty of killing a person in a case which was declared to be per incuriam (in conflict with). In the Memon case, too, the prisoner’s right could have been protected by granting a 14-day stay,” he said.
Other convicts who were saved
Here are some of the other death row prisoners whom the team of five lawyers managed to save from the noose.
>> Surinder Koli (Nithari murder): On January 28, this year, the Allahabad High Court commuted the death sentence, awarded to Surinder Koli, to a life term in the murder of 14-year-old Rimpa Haldar. Koli was sentenced to death by a special CBI court in Ghaziabad on February 13, 2009. The Allahabad High Court commuted the death sentence on the ground of ‘inordinate delay’ in deciding his mercy petition earlier this year. Koli’s appeal and mercy petition were both rejected and the date of his execution was also fixed before his sentence was reduced to life in jail.
>> July 29, 4.15 pm: The team got together in the small drafting room in the Supreme Court soon after the President rejected Memon’s mercy petition at 4.10 pm. They contacted the defence team, requesting them to allow petition on a new ground, all pro bono. Senior advocate Anand Grover was roped in to argue in the final plea. “The Supreme Court had, in January, 2014, in a writ petition filed by death convict Shatrughan Chauhan, laid down guidelines for safeguarding the interests of death row convicts. We five chalked out the petition on those lines and petitioned the vacation registrar, who could, as per procedure, allow an out-of-turn hearing in a rarest-of-rare case. The Indian judicial system started rolling in the dead of the night, amidst the entire spectacle surrounding the hanging,” Sancheti told mid-day from his New Delhi office.
>> 8.30 pm: Nisha Bharadwaj, the registrar, arrived on court premises upon urgent request of the team along with Chirag Bhanusingh, registrar (judicial), Supreme Court. The petition was mentioned (signed and prepared) by advocates Sancheti and Anandita Pujari. “They sanctioned our petition and informed that it would be filed before the CJI for his order at the earliest. We were then asked to wait,” said another team member.
>> 10.30 pm: The team decided to move to 5, Krishna Marg, the residence of the Chief Justice of India amidst heavy deployment of police and media. “This was not the first time we were petitioning the CJI in the dead of the night. We had done it in some previous cases in our attempt to save death row convicts, including Madanlal Barela, a poor tribal from Madhya Pradesh who survived the gallows following our petition,” a member said.
>> July 30, 1.30 am: The team learnt that a three-member bench was constituted and a hearing would begin at 2.15 am. The hearing, however, did not start until 3.15 am. “Once we reached the SC, we realised that the entire judicial machinery was alive, including the registrars, librarians, court masters, who were all present to make the delivery of justice possible on this landmark day for the Indian judiciary,” one of the team members told this reporter.
>> 4.58 am: Grover’s arguments, citing the Chauhan case that had laid down guidelines for safeguarding the interests of death row convicts, concluded but failed to convince the bench. He argued that 14 days must lapse between the rejection of a mercy petition and execution of the sentence.
>> 6.15 am: The five lawyers left the court, having toiled for 14 hours trying to defend the last rights of yet another death row convict. They slept not a wink, and neither ate nor drank. “While there was no pressure or trauma, we were exhausted. At the end of this, we realised that the judicial institution is alive until the convict has the very last right available even minutes before going to the gallows. As lawyers, it is our duty to uphold this right,” said Sancheti, who said there was no difference between Memon’s and the previous 22 cases, in which they managed to save death row convicts. “In all these cases, we were just trying to protect the last right available to a death row person provided under Article 21 of the Constitution,” said a team member.