Games played in Yakub Memon’s case


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In the recent past, India has witnessed vigorous debates on the death sentence of Yakub Memon. The freedom of speech and expression that this country holds itself proud for, manifested itself in its brightest form on this issue.

 

However, once the Supreme Court passed its judgment on 30 July, 2015 dismissing Yakub’s last ditch attempt at life, one side of this debate allegedly found new facts that it had presumably suppressed hitherto.

 

The said side of the debate did not hesitate in questioning the soundness of Supreme Court’s judgment on older and newer grounds. To quote from an article from a leading daily newspaper of 1 August, 2015, "But the satisfaction of meting out justice would have been greater had our courts upheld the mitigating circumstances offered by Memon to keep aside his death penalty, even though perpetrators of terrorism deserve the capital punishment. Failing to do so diminished India."

 

The above statement, besides being a contempt of Court, is based on an alleged article of Mr B Raman (R&AW) which lacks any proof of authenticity. Some authors claim that as per the said article, Yakub had surrendered and helped Indian Intelligence in lieu of a promised immunity from execution. Let us examine this in light of realities. One, Mr. Raman expired in 2013 and he did not whisper about any such incident in his lifetime. Two, this posthumous article, published in the name of Mr Raman, does not state anything about any such immunity offered or any agreement/arrangement between the government and Yakub. Three, this article does not even suggest that Yakub had surrendered to the Indian Government. Four, it was never pleaded by Yakub during trial that he helped the government in any way. What prevented the defense from revealing this gospel truth or from filing an application for becoming an approver?

 

The above article is also the basis of Owaisi’s assertion that "A person who surrendered and who co-operated in establishing that the real perpetrators Tiger Memon and ISI is now being sent to gallows." It is interesting to note that the, Courts have found that Yakub himself was the "real perpetrator" of the conspiracy. An excerpt from Supreme Court order dated 21 March, 2013:

 

"Essentially, A-1’s deeds can’t be viewed distinct from the act of Tiger Memon, hence, both owe an equivalent responsibility for the blasts. They were the architects of the blasts, without whom the plan would have never seen the daylight. From this conduct, it is not hyperbole to state that, he was one of the ’driving sprit’ behind the plan of the 1993 blasts, whereas the other appellants played a far lesser role and thus a lesser contribution to the crimes resulting from this plan. To be clearer on the dominant position, the blasts on 12 March, 1993 was at the discretion of the masterminds, meaning thereby, they had the effective control over the incident. It is this effective control over the incident, which is absent in the role played by rest of the appellants." (A-1 is Yakub Memon)

 

(Yakub Abdul Razak Memon versus State of Maharashtra, Criminal Appeal No. 1728 of 2007, Para 499)

 

Above is only one of the many rounds of litigation that Yakub played. Trial was the first round, followed by an appeal before Supreme Court, two review petitions, one curative petition, another writ petition thereafter, and then another night-long hearing. This makes a total of eight hearings, which is unprecedented. As held by Hon’ble Court in the night-long hearing (Yakub Abdul Razak Memon Versus State of Maharashtra, WP (Crl.) No.135 of 2015 and Anr.): "The issue that had seen the end after the day’s drill at 4.15pm yesterday, i.e., 29 July, 2015, appears to have unending character because precisely after ten hours, about 3.15am on 30 July, 2015, it has risen like a phoenix possibly harbouring the idea that it has the potentiality to urge for a second lease of life ..." 

 

The Court further added that endlessly gaining time in the garb of challenging the rejection of repeated reckless mercy pleas "would be nothing but travesty of justice."

 

Yakub had tried to postpone his fate behind the veil of "right of proper hearing". In the process he even abused the process of Court, and took patently untenable grounds. His curative petition was perfectly heard under the Supreme Court Rules, 2013. Still he took an objection that it was not circulated to the relevant judges. This was a misused objection.

 

Order XLVIII of Supreme Court Rules, 2013 provides, "The curative petition shall be first circulated to a Bench of the three senior-most judges and the judges who passed the judgment complained of, if available."

 

The ’judgment complained of’ was passed by Justice P Sathasivam and Justice B S Chauhan, both of whom had retired in the year 2014 itself. The occasion of circulating the judgment to them did not arise. However, Yakub took non-circulation of the judgment to them as a flimsy ground and failed. He then tried to impress upon the Court that his death warrants are in violation of the jail manual that required 14 days time between rejection of mercy plea and execution. This again was a baseless argument, as, his mercy plea was rejected on 11 April, 2014, giving him more than a year to satisfy himself. It is not each time that a mercy plea is filed that the fresh period of fourteen days has to be granted. Such an interpretation would empower the convict to inordinately postpone his execution by repeatedly filing mercy pleas; and then to seek clemency on the ground of inordinate delay.

 

When the delaying games were lost, efforts were made to portray him as an underprivileged fighting for justice. However, the people and obviously the Court could see that a convicted criminal who can arrange funds for the entire blast conspiracy, engage the Country’s best advocates to defend himself, got eight rounds of hearings and an open media coverage cannot be an underprivileged. He still remained a threat to the society.

 

Time has come when we start waking up to the fact that each and every person of the society has a fundamental right to feel safe from terrorism. State has a duty to protect this right of individuals that form the society. It is therefore appropriate that we should start seeing the blast victims in the light of the definitions of human rights, violated victims and underprivileged martyrs.

 

(The author is an advocate and secretary of Adhivakta Parishad Delhi state, also a member of Group of Intellectuals and Academicians)




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