yakub memon
1993 Mumbai serial blasts convict Yakub MemonIANS

Yakub Memon--the only death row convict in 1993 Mumbai serial blasts case--is unlikely to get any relief after he filed a fresh mercy plea on Tuesday, hours after the Supreme Court rejected his curative petition seeking to commute his death sentence to life imprisonment.

Memon's latest mercy petition was addressed to the Maharashtra governor even as his previous plea was rejected by the President. Though the governor of a state has powers under Article 161 of the Indian Constitution to grant pardon to a death row convict, he cannot exercise his discretionary powers because Memon has been convicted under a central law, according to a senior advocate.

He was awarded death penalty under the provisions of Terrorist and Disruptive Activities (Prevention) Act in 2006. In such cases, the governor is not empowered to grant pardon to a person who has been awarded death sentence.

"Since Memon has been convicted under a central law, the power under Article 161 of the Indian Constitution does not extend to granting mercy to a person who has been sentenced to death under TADA," M Ajmal Khan, senior advocate, Madurai Bench of Madras High Court, told IBTimes India.

"In any case," he continued, "once the President rejects a mercy petition by refusing to use his powers granted under Article 72 of the Indian Constitution, the governor cannot exercise his powers under Article 161."

The Supreme Court had on 21 March 2013 rejected Memon's appeal, following which he petitioned the President in March 2014 seeking pardon. President Pranab Mukherjee also rejected the mercy plea on 11 April 2014.

Memon then again moved the apex court with a curative review petition, which was rejected on Tuesday. Apparently to delay the execution, which was scheduled at Nagpur central jail on 30 July, Memon filed the latest mercy plea to the Maharashtra governor.

The death row convict's petition to the governor has triggered speculations whether he will get a reprieve from the hanging.

The President has powers to have a view on a mercy petition independent of the government, according to lawyer and Congress leader Manish Tiwari, who quotes an interpretation of Article 72 that confers powers on the President to pardon death row convicts.

"The President in exercise of power under Article 72 is entitled to go into the merits of the case notwithstanding it has been judicially concluded. He can come to a conclusion different from that recorded by the court," said the Supreme Court's constitutional bench in the Kehar Singh vs Union of India case in 1989.

But the moot question is: under what circumstances the governor could have used his powers under Article 161 to pardon a death row convict like Memon?

Two conditions need to be fulfilled, says advocate Khan. "First, the mercy petition should not have been rejected by the President. Secondly, the conviction should have been done under the provisions of a law over which the executive powers of the state extend, for instance the Indian Penal Code. In case if the conviction is done under provisions of a Central law, the governor has no powers."

Yakub Memon's lawyers were probably guided by precedence of a death convict approaching a state governor for mercy, according to Abdul Rahman, another advocate of the Madurai Bench. 

"It has happened in the case of one KM Nanavati who approached the governor to get his death sentence commuted," Rahman said.

He referred to the case between Nanavati and State of Bombay, in which the governor did grant reprieve using his powers under Article 161, but it was held "unconstitutional", since it was in contrast to the Supreme Court rulings under Article 145.

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