New Delhi, July 27 (The Telegraph): A two-judge Supreme Court bench was split today on whether to stay the July 30 execution of 1993 blasts convict Yakub Memon, and posted his writ petition for further hearing tomorrow morning.

Justice A.R. Dave, who headed the bench, opposed a stay saying accused could not be allowed to move plea after plea. But Justice Kurian Joseph raised a technical issue about the bench that had rejected Yakub's curative petition on July 21 and argued his latest petition should be heard.

The possibility of reference to another bench, perhaps a larger one, cannot be ruled out if the two judges stick to their stands.

Yakub wants the execution stayed till Maharashtra governor C.V. Rao decides his latest mercy plea, moved after Rao and President Pranab Mukherjee had rejected one clemency petition each.

"What is... a mercy petition? You go with a begging bowl when you have exhausted all remedies," Justice Kurian Joseph remarked but still favoured a stay.

Yakub has contended the April 30 death warrant by the Tada court does not "stand in the eye of the law".

The Tada court had on July 27, 2007, sentenced Yakub to hang for the serial blasts of March 12, 1993 that killed 257 people and injured over 700 in what was then Bombay.

The apex court has upheld the sentence and rejected two review petitions from Yakub - the second on April 9 this year - and also his curative petition, usually seen as the last legal option.

When arguments began today, attorney-general Mukul Rohatgi initially sought time to file a response - which could have boosted the chances of a stay - but Justice Dave felt the matter had already attained finality.

Taking the cue, Rohatgi cited the rejection of Yakub's previous two clemency pleas and argued there was no point hearing the fresh writ petition. Justice Dave agreed and said: "The matter ends there."

But Justice Kurian Joseph interjected to make a technical point relating to the dismissal of Yakub's curative petition by the bench of Chief Justice H.L. Dattu and the two other senior-most judges, Justice T.S. Thakur and Justice Dave.

He said that under Order 48, Rule 4, of the Supreme Court rules, the three senior-most judges deciding a curative petition should hear it along with the judges who had heard (and rejected) the review petition.

The curative bench should therefore, Justice Kurian Joseph argued, have included himself and Justice J. Chelameshwar, who had heard the last review plea along with Justice Dave. "Curative petition was not circulated to us," he observed.

The last review petition had, however, been rejected unanimously.

Rohatgi cited the judgment in the 2002 Rupa Hurra case, where a curative petition was heard for the first time, to argue a curative petition can only cite two grounds: denial of natural justice to the petitioner, and a judge's alleged bias. Yakub has claimed neither.

Justice Dave then observed that the courts could not wait indefinitely so that a person can file repeated review petitions - convention allows just one but more have often been entertained - and later a curative petition.

"First review petition has gone. Second review petition has gone. He may file a curative petition after three years," Justice Dave observed.

But Justice Kurian Joseph said: "It is inconceivable that (the) three judges who heard the review petition for more than 10 days are not part of the curative petition. Is it not all the more reason (to allow the writ petition to be heard)?"

Yakub's counsel Raju Ramachandran agreed: "The judicial process is still incomplete. There are infirmities in the (way the) curative petition (was) decided."

Senior counsel T.R. Andhiarujina, appearing for the National Law University in Delhi which is supporting Yakub, said the execution should be stayed and the matter heard as the convict was in "last agony".

Justice Dave retorted: "If he is in last agony, let it be brought to an end."

When Andhiarujina tried to press with his argument, Justice Dave snubbed the petitioner saying: "You are an outsider, how can you say (meaning the university has no locus standi)?"

Rohatgi said there would be "100 million such cases coming to the court" if such litigation were allowed.

To this, Justice Kurian Joseph said the court could always intervene if it found any decision "oppressive to judicial conscience".

"Mercy or clemency has nothing to do with legal proposition," Rohatgi argued, prompting Justice Kurian Joseph to counter: "It is a constitutional provision."

Photo credit: The Telegraph