Justice Kurian Joseph repeatedly questioned why the curative plea was not circulated among all the judges who had heard Memon’s review petition.

In an unexpected twist to Yakub Memon’s last-ditch fight against his execution, scheduled for July 30, a Supreme Court judge on Monday raised doubts about the procedure followed by the court while hearing the curative petition filed by the lone death row convict in the 1993 Mumbai serial blasts case.

The curative petition, a rare remedy, is the last of a series of judicial processes made available to a condemned man in the Supreme Court. Once his original appeal against the death penalty is dismissed, a death row convict can file a review petition and then a curative petition.

The two-hour hearing started with Justice Kurian Joseph, on the Bench with Justice Anil R. Dave, asking the Maharashtra government, led by Attorney-General Mukul Rohatgi, whether it did not find anything missing in the way the curative petition was dealt with.

Though the hearing was on Yakub’s petition challenging the “undue haste” being shown by the State government to execute him, Justice Joseph’s queries became the central focus. Justice Joseph said a curative petition should be circulated not only among the three senior-most judges of the Supreme Court but also among the judges “who passed the judgment complained of, if available.” However, he pointed out that neither he nor Justice J. Chelameswar, despite being part of the Bench that dismissed Yakub’s review petition on April 9, 2015, after hearing it on merits in open court for a considerable number of days, were included in the subsequent curative process.

‘Curative plea must also be circulated among those who passed the verdict’

Justice Kurian Joseph’s queries on the curative process of Yakub Memon’s plea against his death sentence became the central focus of Monday’s hearing.

The judge drew the court’s attention to Order 48 in Part 4 of the Supreme Court Rules, 2013, dealing with the procedure for hearing ‘curative petitions.’

Justice Joseph said a curative petition should be circulated not only among the three senior-most judges of the Supreme Court but also among the judges “who passed the judgment .” However, he pointed out that neither he nor Justice J. Chelameswar, despite being part of the Bench that dismissed Yakub’s review petition on April 9, 2015, after hearing it on merits in open court for a considerable number of days, were included in the subsequent curative process.

Justice Joseph said only Justice Anil R. Dave, who led the Review Bench, was included in the Bench that dealt with the curative plea.

On July 22, 2015, the Curative Bench, of Chief Justice of India H.L. Dattu and Justices T.S. Thakur and Dave, dismissed Yakub’s plea.

Attorney-General Mukul Rohatgi countered that there was no need to include Justice Joseph or Justice Chelameswar in the curative process. He said curative petitions challenged the original judgment of confirmation of the death penalty, and not the review of the original judgment.

“Since Justice P. Sathasivam and B.S. Chauhan who delivered the original judgment in 2013 had retired, the judges who authored the judgment complained of as under Order 48 were not available,” he reasoned.