This Article is From Jul 28, 2015

Why Yakub Memon Must Not Hang

Unless something dramatic intervenes, within the next 48 hours, the State would have taken vengeance on Yakub Memon on behalf of all of us, including those 37, among whom I am privileged to be counted, who have endorsed a mercy petition addressed to the President drawn up by six of the most distinguished judges we have had in recent times - Justice Panachand Jain; Justice A. Suresh; Justice S.N. Bhargava; Justice P.B. Sawant; Justice K.P. Siva Subramaniam; and Justice K. Chandru.

The petitioners have not challenged the fact of Yakub Memon's involvement in the conspiracy that resulted in the death of 257 innocents in the bomb blasts that rocked Mumbai in March 1993. That is a given which the convicted person admitted to when he surrendered himself to the authorities after having been on the run for nearly a decade. The surrender was negotiated but voluntary. The negotiations took place outside the country and included his revealing Pakistan's role before and after the conspiracy was hatched and executed. In exchange, Yakub Memon was assured that he would not hang. Unless our mercy petition is accepted, he will.

The travesty of justice will lie in his losing his young and promising life, not because he was directly involved in taking life, but because he happens to be the brother of the main culprit, "Tiger" Memon, who is still hiding out, well away from the grasp of our investigating authorities. It is also where young Yakub Memon could have remained, had he not chosen to accept in good faith the bargain he was offered (and probably demanded) - that he retain his thin thread on life in exchange for telling all to the police and the prosecutors. 

That is but the beginning of the story. Yakub Memon's case has been determined by the highest court in the land as belonging to the "rarest of rare" cases where the death penalty has been invoked. As in the case of Afzal Guru, the charge is not that he lit the fuse of the bombs that destroyed lives, but that he had advance knowledge of what was being planned, and did not reveal it to the authorities in time to forestall the tragedy. That is a serious crime. It deserves to be punished. The question is: does it warrant taking a life in your name and mine?

While the principal criminals, those who planned and executed the dastardly acts, will probably live out their natural life, the insistent question that remains unanswered is whether Yakub is to hang for what he did, or as a surrogate for those who actually did the killing? And has he been made that surrogate because he is the blood brother of the principal accused? For after all, there are 10 others who were tried with him and found guilty but escaped Death Row although they include those actually responsible for laying the bombs. 

Is being directly involved in the killing a lesser crime than being involved in the conspiracy to kill? Yakub is an accessory before the fact. He is not the fact itself. That is what merits a deeper look into the totality of the case even after the Supreme Court has pronounced its sentence. For, to do so is provided for within our law.

Many take it for granted that since the Supreme Court has said its piece, that is the last word. Not so. Our Constitution provides under Article 72 for the President of India, in his own personal discretion, to "grant pardon and to suspend, remit or commute sentence in certain cases" as the learned Justices have argued in our mercy petition. It is also for the President to take his or her time to make such a decision. Thus, President Abdul Kalam kept all cases of the death sentence but one pending throughout the tenure of his office. He did so because of his principled view that it is barbarous to take a life for a life or however many lives. The learned Justices in our petition have pleaded, "Bloodletting and human sacrifice will not make this country a safer place; it will, however, degrade us all". 

That is the final sentence of the petition they have drafted. It is the conclusion they have reached after reviewing the Yakub Memon case from every angle. The grounds for their disagreeing with the Supreme Court sentence are several and I will attempt to sum them up.

First and foremost, they (and we) have pronounced ourselves against the death penalty per se. I protested when Afzal Guru was hung; I do not protest when it is revoked in the case of Nalini and others who have been convicted of being part of the conspiracy that killed Rajiv Gandhi; I hold on to that view in the case of Beant Singh's assassin. More than 130 countries have abolished the death penalty; we are among the few to retain it in the face of overwhelming evidence that the death penalty does not deter but does diminish us all. 

Indeed, our mercy petition bases itself on the Universal Declaration of Human Rights, the international Covenant of Civil and Political Rights, and the Covenant on Economic, Social and Cultural Rights, all of which India has ratified. True, India is still to ratify the Second Optional protocol that aims at abolishing the death penalty, but one fundamental general purpose of the petition is to urge the Government of India to do so.

While that is our point of general principle, while the moral principle is that, as Gandhiji put it, "taking an eye for an eye will only lead to leaving the whole world blind", we argue that the specifics of the Yakub Memon case also warrant a Presidential grant of mercy. 

First, say the learned justices, the mercy petition they have drawn up meets the procedural requirements laid down by the Government, and is in conformity with the Supreme Court's judgment on procedure in a 1976 case. Second, fixing a date for the execution in the death warrant, in this case within a very few days of the sentence, is "illegal" in view of the Supreme Court's decision made but a few months ago in the Shabnam case, namely, that time must be given for the accused and his lawyers to "participate and contest the issuance of a death warrant". 

Apart from these procedural issues, on substance there are five main considerations of fact and law that have been urged. The petition argues that when the Supreme Court has considered "the long period of incarceration" of the 10 co-accused as warranting a "mitigating circumstance" for commuting the death sentence awarded to them, why should a different yardstick be used for Yakub Memon? Several Supreme Court decisions have been cited to show that owing to the fact of lengthy incarceration, "the government to that extent is not bound by the conclusions arrived at by the Supreme Court" (emphasis added). Also, citing yet another 2014 case, Shatrughan Chauhan vs. Union of India, the petitioners say that as Yakub Memon has been medically found to be suffering from schizophrenia, he is "mentally unfit for execution."

But, most important of all is that the commuted co-conspirators played a much bigger role, a "much more critical and direct role in the actual execution of the bomb blasts than did Yakub Memon". Why should he be hanged while the others are not? Is it because his real crime is that he is a surrogate for a brother we are unable to lay our hands on? Moreover, if the mercy petitions of Rajiv Gandhi's killers and of Devender Pal Bhullar, Sardar Beant Singh's assassin, have been set aside on the ground of "delayed justice", should not the same apply to Yakub Memon, especially considering that the law under which Memon has been tried, the much-discredited TADA, has since been repealed?

Hence the petition that Yakub Memon be spared "the noose of death for a crime that was master-minded by someone else to communally divide the country". The President will decide. He might wish to bear in mind Portia's famous words in William Shakespeare's The Merchant of Venice:

The quality of mercy is not strained;
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest;
It blesseth him that gives and him that takes

Our plea is for "mercy to season justice".

(Mani Shankar Aiyar is a Congress MP in the Rajya Sabha.)

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