Yakub Memon's Hanging Proves Once Again, Death Penalty Is Cruel
By Committee for the Protection of Democratic Rights (CPDR)
05 August, 2015
Countercurrents.org
Mumbai: First of all, CPDR is opposed to capital punishment in all circumstances and we have reiterated the reasons on several occasions. Our main argument against capital punishment is that any miscarriage of justice becomes irreversible. As the famous French Enlightenment historian and philosopher, Voltaire once put it: “It is better to risk saving a guilty person than to condemn an innocent one.” Indeed, in the Indian judicial context, there is still much debate about the “rarest of the rare” idiom—what specific legal conditions should be fulfilled for a judicial bench to pass the death sentence? Indeed, in Afzal Guru’s case, the Supreme Court of India stated in its judgment that the “collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender”! The CPDR expected and demanded that the Indian state—particularly the judiciary—would rise above the loud cries of the Hindutvavadins to “hang him”, but the state chose not to heed the voices of reason.
It is shocking that the Indian state was hell bent on hanging Yakub Memon on 30th July 2015, his birthday, and used its machinery to ensure that the day and timing was met. The TADA court issued Yakub Memon’s death warrant on 30th April 2015 even as Memon’s curative petition was pending before the Supreme Court, which the latter dismissed much later, on 21st July 2015. A writ petition then filed by Yakub Memon suffered a split verdict on 28th July 2015, with one judge finding it proper to dismiss the petition even though Yakub Memon’s mercy plea was pending before the governor of Maharashtra. The other judge raised a fundamental issue—that it was necessary for the court to consider whether the petitioner’s curative petition had been decided in accordance with law—and he stayed the execution warrant. The split verdict necessitated a larger Bench to hear the matter, which was constituted the same evening and the petition was placed for hearing on 29th July 2015, a day before the execution. The 3-judge bench heard the matter and upheld the curative petition’s order and the death warrant.
The defence lawyers however did not give-up—they filed another writ petition, on the ground that Yakub Memon’s mercy plea to the President had a few hours ago been rejected and he should be given an opportunity to challenge the same. This mercy petition had for the first time brought on record the posthumous publication of an article written by B Raman, one-time head of the counter-terrorism section of the Research and Analysis Wing (RAW), India’s external intelligence agency, stating that the investigating agency had lured Yakub Memon to return to India, that he had cooperated with the investigating agency, and that he should therefore not be hanged. In the light of this, the defence lawyers argued that the death warrant should be stayed. The Bench before which the matter was placed was the same 3-judge Bench that had just dismissed Yakub Memon’s earlier petition. It held its sitting in the Supreme Court at 3.00 a.m. on 30th July 2015, concluding that the court “did not perceive any merit in this writ petition” and thereby dismissing it. Yakub Memon was hanged to death a couple of hours later.
Why did the Supreme Court not “perceive” that it was important to give Yakub Memon the 14 days period to challenge rejection of his mercy petition as had been laid down by the Supreme Court in Shatrughan Chauhan’s judgment? The President too, hastily on the night of 29th July 2015, rejected Yakub Memon’s mercy plea which had been submitted to the jailor of Nagpur Central Prison on 28th July 2015. The Home Ministry’s recommendation to the President to reject the plea came the very same night, and the President readily obliged, and, as seems evident, with no application of mind when rejecting the mercy plea.
What sort of criminal justice is this, where the Indian state induces the accused with the implicit promise of protection against the death penalty to give himself up and stand trial, and then, when he does, forgets the “mitigating circumstances” of his cooperation with the Intelligence agencies, and hangs him? And, the insistence and unfathomable haste in hanging Yakub Memon, not in the least being bothered about a possible miscarriage of justice which would then be irreversible?
CPDR condemns the hanging of Yakub Memon by the Indian state, which seems to have been motivated by the Hindutvavadi desire for revenge. It is tragic that such brutality seems to have become this state’s eternal law. Death penalty is a cruel and inhuman punishment and we demand its abolition, and pending the fulfilment of that demand, a moratoria on all such executions.
Anand Teltumde, General Secretary, CPDR, Mumbai.
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