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In an impassioned plea to the President, the former Governor of West Bengal, Gopalkrishna Gandhi, has invoked the late A.P.J. Abdul Kalam’s opposition to the death penalty to urge a reconsideration of the rejection of Yakub Memon’s mercy plea. Here is the full text of his appeal:

Gopalkrishna Gandhi

His Excellency

The President of India,

Esteemed Rashtrapatiji.

Namaskar.

At this point in time, when the nation is paying solemn tribute to former President (Dr.) A.P.J. Abdul Kalam whose conscientious opposition to the death penalty is widely known, I urge you to reconsider the rejection of Yakub Memon’s mercy plea. In fact, President Kalam had, as recently as earlier this month, expressed his opposition to the concept of capital punishment. He expressed this opinion to the Law Commission, which has been holding deliberations regarding the desirability and efficacy of the death penalty. It would, I suggest, be a fitting tribute to the humane legacy of President Kalam to grant Yakub Memon his life, for which course there are also other compelling reasons.

It was in 1997 that Dr. Shankar Dayal Sharma the President of India, upon an appeal by Mahashweta Devi and other eminent citizens granted reprieve to two boys from Andhra Pradesh, though their own mercy petitions had earlier been rejected by the President’s office. The reprieve in that case came virtually on the eve of their scheduled execution, and established the supreme constituent power of the President of India under Article 73 of the Constitution, to reverse his earlier decision, and heed voices of conscience to commute a death sentence.

Yakub Memon submitted to Indian jurisdiction, when he may quite easily have evaded justice. A respected officer of Indian intelligence has spoken of his cooperation with the law, thus rendering the death penalty completely inappropriate in his case. Former Supreme Court judges have openly said that his execution would be unjust. Public protestations of this nature and from such quarters are rare. They must give us pause, for whether or not there was a secret understanding with Memon that is being disregarded, a doubt would irretrievably be cast on India’s integrity of process if in the face of this, Yakub Memon is executed.

As many as 300 persons from all walks of life including former judges, lawyers, politicians and others have appealed to Your Excellency.

The head of the Indian republic, as President K.R. Narayanan memorably said, is guided by the prerogatives the Constitution gives him, and the privilege of intervention which his vast moral influence confers on him. I understand that this is also the broad position in law as enunciated in the Kehar Singh judgment of the Constitution Bench of the Supreme Court.

Less than a fortnight ago, the Law Commission of India held a day long consultation on Capital Punishment. I cannot say what conclusions the Law Commission will draw from these deliberations. I can, however, suggest that this, and other cases where mercy is sought will be understood more fully once the deliberations of the Commission are received.

I am sharing this letter with the press as this is a matter of urgent, general and public interest.

In the confidence that you will consider this representation, I am,

Yours truly,

Gopalkrishna Gandhi

SC split over Yakub Memon, new bench to hear on execution eve

Noting that law is after all for man, Justic Kurian Joseph stood between lone death row convict in 1993 Mumbai serial blasts case Yakub Memon and the noose prepared for him at Nagpur Central Jail on July 30.

A divided two-judge bench on Tuesday saw Justice Anil R. Dave reject Memon’s contention that Maharashtra government showed undue haste to have him executed.

Justice Dave, the lead judge on the bench, said Memon’s remedies have been exhausted and a clemency plea pending before the Maharashtra Governor has nothing to do with the Supreme Court.

When his turn came, Justice Joseph, in a separate order, began by saying he disagreed with Justice Dave.

"After all law is for man, and law is never helpless and particularly the Supreme Court, which is the repository of high powers and protector of life, shall not be rendered powerless," Justice Joseph observed.

Staying the death warrant, Justice Joseph said the apex court did not follow the mandatory rules of procedure while constituting the bench of judges which dismissed the curative petition.

Justice Joseph observed that the Supreme Court committed serious procedural violation under Order 48, Rule 4 of the Supreme Court Rules, 2013 by not including all the judges, including himself, who heard Memon’s review petition in the subsequent curative process.

Dismissing Attorney General Mukul Rohatgi’s argument that this was only a technical hitch, Justice Joseph said this procedural lapse almost cost a man his life and would lead to miscarriage of justice.

He said a prisoner, especially a death row convict, is entitled to the due process of law under Article 21 of the Constitution.

"The curative petition (of Memon) requires to be considered afresh in terms of Order 48, Rule 4 of the Supreme Court Rules, 2013," Justice Joseph held, stalling the case.

The disagreement between the two judges has now resulted in the case being referred back to Chief Justice of India H.L. Dattu for setting up a new and larger bench of at least three judges.

In a common order, Justice Dave requested the CJI to form a bench today itself and "preferably" post the case for hearing on July 29, the eve of Memon’s scheduled execution.

Memon’s lawyer and senior advocate Raju Ramachandran, post lunch, also made an urgent mention before the CJI to have the case for hearing on July 29.

"I will constitute the bench," Chief Justice Dattu assured Mr. Ramachandran after taking the opinion of Mr. Rohatgi who was also present at the mentioning before the First Court.

Earlier in the day, before the two-judge bench, Mr. Rohatgi conveyed the NDA government’s determination to send Memon to the gallows.

"Please remember the blasts happened in 1993 and we have full respect for the law. Memon went through the complete judicial process of review petitions, curative, mercy petitions before the Governor and the President. There is no doubt left now that this man has to the gallows," Mr. Rohatgi sent.

"The blasts happened 25 years ago... but the pain of the 257 families will not go away... how many petitions will he go on filing endlessly," the AG said.

To this, senior advocate T.R. Andhyarujina quoted from a Supreme Court precedent that a death row convict has a "right to be heard till the last breath".

"We will ensure that he is able to be heard even as the noose is tied around his neck," Mr. Andhyarujina, who appears for Death Penalty Litigation Clinic associated with the National Law University Delhi, said.