Monday’s hearing of Yakub’s writ petition against his death warrant (W.P. [crl] 129/2015) in Court No.3 of the Supreme Court took a turn, which was completely unexpected by counsel on both the sides.

The author of this unexpected turn, was undoubtedly Justice Kurian Joseph.

As Yakub’s counsel, Raju Ramachandran was prepared to argue on merits, little did he expect Justice Joseph to provide him a new ground on a platter.

The ground of attack is that Yakub’s curative petition was improperly dismissed by three senior Judges of the Supreme Court on July 21, without circulating it to two more Judges, Justices J Chelameswar and Kurian Joseph, who were part of a three-Judge Bench (the third Judge was Justice Anil R Dave, who was part of the curative Bench as well) which heard and dismissed his review petition.

Justice Dave, who sat next to Justice Joseph, showed no response to this new ground being canvassed by Ramachandran, thanks to Justice Joseph’s query.

The AG, Mukul Rohatgi, suggested that as the curative petition is against the main judgment, its circulation among the Judges who heard the review petition is not required. Justice Joseph disagreed with this view, saying that the curative petition is also against the review judgment.

The AG , who called the curative petition as the ‘second arrow in the bow’ wondered why Yakub did not file a curative after the rejection of his review petition in chambers in 2013. The scope of the review petition was expanded later with the Supreme Court making it mandatory to be heard by a Bench of three Judges in open court.

To this, Justice Joseph said rather than Yakub being responsible for the delay, the delay was useful to him.

Ramachandran advanced two major arguments: One, the death warrant was issued, before Yakub could file his curative petition, and the warrant remained during the pendency of the petition. In terms of the Supreme Court’s recent judgment in Shabnam, such a warrant was illegal.

Second, in view of the curative petition being dismissed on July 21, whatever mercy petitions filed on behalf of Yakub earlier, and considered and dismissed by the Governor and the President, were wiped out, and Yakub is entitled to file fresh mercy petitions, after the dismissal of his curative.

Further arguments will continue on Tuesday, July 28.

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Photo by Andy Dolman