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Published : September 02, 2016 | Author : anant tyagi
Category : Criminal law | Total Views : 759 | Unrated

  
anant tyagi
Anant Tyagi
 

Yakub's Death Punishment: Justice or Travesty of Justice

 

Who Is Yakub Memon?

Once honoured as the best chartered accountant in the Memon community, Yaqub Abdul Razzak Memon, was perhaps the most high-profile convict in the March 1993 Mumbai serial blasts case.

Yakub, the third of six sons of the Abdul Razzak Memon, was the most highly-educated in the Memon family. He studied in an English medium school, later acquired a B.Com degree and became a qualified chartered accountant in 1990.

A year later, he set up "Mehta & Memon Associates" along with a childhood friend Chetan Mehta. A year later, they parted ways and Memon set up his independent firm, "AR & Sons", in memory of his father. This firm proved so successful that he was conferred the Best CA Award by the Memon community in Mumbai. He diversified into exports and set up a company, Tejrath International, to export meat and meat products to the Gulf and Middle East. In a very short period, Memon became a financial success and invested in six flats in the Al-Hussaini Building in Mahim, close to the famous Mahim Dargah.

The accused No. 1 in the Mumbai serial blasts, Menon's role was proved for being part of the conspiracy, financing the operation through a co-accused Mulchand Shah and his firms, arranging air tickets to fly to Dubai and then Pakistan for six other accused in the case of handling arms and ammunition, purchased the vehicles used in the bombings, and stockpiled weapons.

The Indian Central Bureau of Investigation claims that Memon was arrested at New Delhi railway station on 5 August 1994.

Justice P. D. Kode, in a Terrorist and Disruptive Activities (Prevention) Act (TADA) court, found Memon guilty of the following offences on 27 July 2007.

Subsequent Appeals And Petitions
Memon filed an appeal before the Supreme Court of India under Section 19 of the TADA Act and State of Maharashtra filed a reference before the court for the confirmation of Memon's death sentence.
On 21 March 2013, the Supreme Court confirmed Memon's conviction and death sentence for conspiracy through financing the attacks. The Court held that Memon's role was limited not only to the extent of correspondence between the masterminds and all other accused, but he was also entrusted with task of handling the explosive bags and for their safe keeping, which is stated in the confessional statements of various co-accused persons. It also held that Memon was actively involved in hawala transactions for the purpose of facilitating the blasts. The judges called him the "mastermind" and "driving force" behind the bombings. Memon has consistently claimed innocence.

Memon then filed a Review Petition seeking review of Supreme Court’s judgment confirming his death sentence. On 30 July 2013, Supreme Court bench headed by Chief Justice P Sathasivam and Justice BS Chauhan rejected Memon's application for oral hearing and dismissed his review petition by circulation. Memon then filed a Writ Petition before the Supreme Court as the issue of oral hearing of review petitions against death sentences was being heard by the Supreme Court.
On 6 August 2013, Memon's brother Suleman filed a mercy petition before the President of India. However Indian President Pranab Mukherjee rejected Memon's petition for clemency on 11 April 2014.

On 1 June 2014, SC stayed execution while a plea from Memon, that review of death penalties should be heard in an open court rather than in chambers, was heard by a constitution bench of the Supreme Court which was then extended in December 2014. On 24 March 2015, open court hearing began on Memon's review petition. Senior Counsel Jaspal Singh represented Memon. On 9 April 2015, Supreme Court dismissed Memon’s review petition.

On 30 April 2015, Maharashtra Government issued a death warrant setting 30 July 2015 as the date for Memon's execution. Memon then filed a curative petition before the Supreme Court on 22 May 2015, which was rejected on 21 July 2015. Meanwhile, Memon then filed a mercy petition with the Governor of Maharashtra and then filed a Writ before the Supreme Court of India for a stay on his execution till the mercy petition is decided. He claimed that the death warrant was illegal, as it had been issued before he had exhausted all his legal avenues of appeal.

On 28 July 2015, Memon filed a fresh writ petition before the Supreme Court challenging the order passed in the curative petition contending that the required quorum was not present based on the interpretation of the Supreme Court Rules. After the hearing, the two judges disagreed on the issue and passed an order requesting the Chief Justice of India (CJI) to urgently constitute a larger bench. On July 29, the Supreme Court rejected his petition. Memon also submitted a petition for clemency to Maharashtra Governor C. Vidyasagar Rao and a fresh petition to President Mukherjee, both of which were rejected. As a final resort Memon's lawyers filed a plea for 14-day stay of execution with Supreme Court Chief Justice citing that there needs to be 14 day period between a mercy plea rejected by president and the execution. A three-judge bench convened at 2:30 IST to hear the arguments. After hearing the arguments the bench upheld the execution, rejecting Memon's lawyers arguments. Memon was executed by hanging in Nagpur Central Jail at around 6:30 AM IST on 30 July 2015.

Literature Review
The Supreme Court on Tuesday dismissed the curative plea filed by 1993 Mumbai blast convict Yakub Memon paving the way for his hanging on 30 July.

Will someone shed a tear for Yakub Memon? In story of his return, lies an answer. Yakub Memon fell into CBI hands partly by chance and partly on his own volition. While he may believe that rest of the Memons had nothing to do with Tiger’s bomb conspiracy, the ‘atmosphere’ in India was strongly against the family, he was told.

The Supreme Court on Tuesday dismissed the curative petition filed by Yakub Abdul Razak Memon, convicted in the 1993 Mumbai serial blasts case, paving the way for his hanging on July 30.Memon will be hanged at 7 A M on July 30, which also happens to be his birthday, in Nagpur Central Jail for his involvement in Mumbai blasts that claimed 350 lives and over 1200 injured.Yakub allegedly handled his brother Tiger Memon’s funds and was accused of having funded the training of 15 youths who were sent to Pakistan for learning the art of handling arms and ammunition. He was also accused of funding the escape of the Memon family following the blasts in Mumbai.

Yakub Abdul Razak Memon or Yakub Memon is a classic case of how some of the well educated people can become terrorists in the name of religion. Yakub who was sent to the gallows was a chartered accountant. Such an educated man becoming a terrorist was unheard of in the early 1990s.

The Supreme Court turned down on Tuesday the mercy plea of terror mastermind Yakub Memon – convicted in the 1993 Mumbai serial bomb blasts case. He will be hanged by the Maharashtra government at 7am on July 30.

The only well- educated member of the Memon family was found guilty of criminal conspiracy and arranging money and managing its disbursement through the co-accused in the Mumbai serial blasts case.The Supreme Court on Thursday upheld the death sentence of Yakub Abdul Razzak Memon in the 1993 Mumbai serial blasts case.The apex court said Yakub, younger brother of Tiger Memon, was the mastermind of the 1993 Mumbai serial blasts.

The Supreme Court commuted the death sentence of 10 other accused to life imprisonment.

Justice or Travesty of Justice
The Memons who deserve to be hanged are Tiger and Ayub (still in Pakistan as ISI protectees). They were at the core of the conspiracy to bomb several public places in 1993, which left 257 people dead. This is not to say he was blameless, but he certainly was not the man who deserved the maximum punishment for the sufferings of those who died in the 1993 blasts.

Former Additional Secretary in the Cabinet Secretariat, M Raman, headed the Pakistan Desk at the Research and Analysis Wing, India's external intelligence agency. mentioned in his unpublished article, the sequence of Yakub Menon’s apprehension who came back largely voluntarily (barring Yakub, who may have been caught through luck or a negotiated surrender). The families’ return was aided by the Indian CBI. Prima facie this establishes the fact that even if anger and fear may have prompted the Memons to aid (or passively support) the bombings which later led them all to flee to Pakistan, they had hoped that Indian law would treat them with fairness.

Raman and Rahman's writings suggest that Yakub provided crucial evidence to link his brothers' evil deeds with Pakistan, but, surprisingly, neither he nor his family got the benefit of becoming approvers in the case which could have led to lighter sentences for their roles in the blasts.

This is yet another classic case where a weak state has chosen to show strength against the weak by indirectly winking at injustice. Strong states do not let public emotions and political posturing get in the way of delivering real justice. In the Indian case, the political need to satiate public anger against the Memons made the "weak" Narasimha Rao government ignore the real reasons why the Memons came back and decided to treat Yakub and some other Memons as key villains deserving no leniency. (Even if they came back only to save their property, the fact is they came back to face Indian law.)

This is known is psychology as displaced aggression. If you can’t hit back at the person who wronged you, you hit out at those who are easily available.

Hear what Raman had to say about Yakub: “The cooperation of Yakub with the investigating agencies after he was picked up informally in Kathmandu and his role in persuading some other members of the family to come out of Pakistan and surrender constitute, in my view, a strong mitigating circumstance to be taken into consideration while considering whether the death penalty should be implemented.”

There are three tragedies inherent in the Yakub story.

First, there is the inability of the political and legal system to deliver real justice and focusing instead on what is easy to do. Yakub was an easy target and he is being shown no mercy just to prove that the state means business when it comes to dealing with terrorism. Actually, it proves the opposite. It testifies to the impotence of the state which cannot bring the real culprits, Dawood Ibrahim and Tiger Memon, to justice and is instead happy to send someone else to the gallows. The only message being sent is that the next time one should not trust the Indian legal system to help those who surrender voluntarily and seek to nail the real criminals. Second, if Memon is hanged despite the facts that are now re-emerging, it will prove yet again that political support is the key to getting convicts an easier sentence. We know that political support in Punjab and Tamil Nadu helped both Balwant Singh Rajaona (convicted for the assassination of Punjab CM Beant Singh) and the three convicts facing death sentences for the Rajiv Gandhi assassination in getting their sentence converted from capital punishment to life imprisonment.If Yakub Memon is hanged for lesser offences that what Rajaona and Rajiv's assassins have been convicted for, it would make this assessment obvious. Third, the final tragedy would be to establish religion as the central issue in tackling terrorism. Politicians are happy to mouth the truism that terror has no religion, but that is not how they behave. It would be a real tragedy if the only politician batting for Yakub Memon is a Muslim politician like Asaduddin Owaisi of MIM. All the so-called "secular" parties are staying mum for reasons of political cowardice.

Without in any way reducing the culpability of various members of the Memon family for aiding or abetting the Mumbai blasts, the hanging of Yakub Memon, if it finally comes to that, would be a triple disaster for the country. Giving the victims of the blasts a sense of closure does not mean denying a fair deal to the Memons who came back to face Indian law.

Fair Trial
Eminent jurist and former Attorney General of India Soli J Sorabjee termed Yakub Memon's trial as a fair one. Speaking to CNN-IBN on 30 Jl 2015. He said, "It was a fair trial. Three courts found evidence against him. There has to be some finality. I don't think he was framed or the trial was rushed. He was given all legal options". Heaping praise over the judiciary which gave all opportunities to Yakub Memon he said "role played by the court shows the concern it had towards him. I'm proud of the judiciary. Full opportunity was given to Yakub to present his case. The Supreme Court showed genuine concern for the human rights." On 30 July 2015, The Supreme Court had never before heard a matter post-midnight inside the court premises. The proceedings commenced at 3.30 am, and Memon’s hanging was scheduled for 7 am, three-and-a-half-hours later. At 11 am on 29 July 2015, Memon had submitted a 14-page mercy petition to President Pranab Mukherjee. At around 10.45 pm that night, the petition was rejected. By 1.30 am on Thursday, word had gotten around that Anand Grover and Yug Mohit Chaudhary, the advocates arguing for Memon, had gone to meet the Chief Justice of India, HL Dattu, earlier that night along with a few others including Prashant Bhushan, a Delhi-based lawyer and activist.

After waiting for instructions at the Supreme Court till around 10 pm, Memon’s lawyers decided to go to Dattu’s residence. Information that was trickling in through hearsay at this point indicated that the group at Dattu’s house had argued that the execution was taking place even though Memon had been deprived of the due process, and that there were new and serious grounds in favour of his sentence being stayed. They were successful in convincing Dattu that Memon’s case deserved to be heard, and so, the final hearing was scheduled. Proceedings in the Supreme Court are usually a three-stage process that consists of the original appeal, the review petition and the curative petition. While the order of conviction of a district or trial court is usually challenged before a high court through a criminal appeal, and an order of the high court is challenged before the Supreme Court, Section 19 of the now repealed Terrorist & Disruptive Activities (Prevention) [TADA] Act stipulated that an appeal from the order of a trial court can only be made to the Supreme Court. This provision eliminated one stage of appeal that is available to most other convicts. In the cases of those who have been convicted under the TADA act, a person aggrieved by the first appeal decided by the Supreme Court has the option of filing a review petition before the same bench that decided the first appeal. A review petition can only be filed if there is an error in the judgment that is apparent on the face of the record—that which would be readily observable by a spectator. Thereafter a person aggrieved by a decision in the review petition can file a curative petition on the grounds of the violation of natural principles of justice and an apprehension of serious bias.

Due to a variety of circumstances, in Memon’s case, there had already been six stages of litigation: the original appeal, a review petition, a second review petition, a curative petition, a writ petition challenging the warrant of execution of death sentence and proceedings to re-determine this writ petition. Every imaginable argument had been made, and I remember wondering why the court had decided to conduct the hearing on its premises in this manner for this particular case. The court could have chosen to reject the request, or the bench could easily been convened at the house of one of the judges as has been done in the past. However, if the Supreme Court had deemed it necessary to hold an open court hearing at 3.30 am, I reasoned, there must have been very strong reasons for it to do so.The debate can be endless on the issue whether the justice was granted to Yakub or he became victim of prejudiced course of justice.It appears however that the each and every page of the law book was turned in this case.

Mercy Petition of Yakub Menon’s Death Penalty - Due Process Followed or Not

Under Article 72 of the Constitution, the President can grant pardon, and suspend, remit or commute a sentence of death. However, the President does not exercise this power on this own. He has to act on the advice of the Council of Ministers. This too has been made clear by the Constitution. The conflict of Art .72, with another statute, came before the Court in the case of Maru Ram v. Union of India. The issue in this case was, whether S. 433-A of Criminal Procedure Code, would affect the Art.72 and Art.161 of the Constitution. It was argued that since Sections 432 and 433-A, are statutory provisions, and modus operandi of the Articles 72 and 161, therefore it would render Article 433-A ineffective. The reason for this was that, it was different from the other two sections and therefore it would be against the Constitutional Provisions. However, the court held that although the powers under Art. 72 and Art. 161 and Sections 432 and 433-A may be similar, but they are not identical. This decision was later affirmed in Ramdeo Chauhan v. State of Assam it was held that the power under Article 72 and Article 161 of the Constitution is absolute and cannot be hampered by any statutory provisions such as Section 432, 433 and 433-A of the Code or by any prison rules. A similar question minimum of 25 years after conviction, places a limitation on the exercise of power under Art.72. The Bombay High Court in the above case held that it is not allowed to the Courts came up before the Court in the case of Madhav Shankar Sonawane v. State of Maharashtra here the issue was that whether Section 307 of the Indian Penal Code, read with Section 34 of the Indian Penal Code, which has a sentence of to hold that a convict shall have to undergo a minimum period of sentence even with an exercise of constitutional jurisdiction by high constitutional functionaries under Article 72 and 161. After looking at all these cases, it can be concluded that in n o situation can any legislation place a limitation on the power under Art. 72 and Art. 161.

21 Years of Solitude
Few Pertinent Questions Do Come on The Surface.

Memon’s writ petition under Article 32 of the Constitution for quashing the death warrant was rejected by a three-judge bench (Justices Dipak Misra, P.C. Pant and Amitava Roy) at 4.15 p.m. on July 29 — the eve of the execution — and the judgment was uploaded at around 11:00 p.m., a few hours before Memon was scheduled to be hanged to death. If he had not got a reasonable opportunity to read for himself the judgment before he was sent to the gallows, does it not amount to violation of natural justice? Again, did Memon get an opportunity to read the judgment delivered at around 5:00 a.m. on July 30, refusing to give him a 14-days breather between the President’s rejection of the mercy petition and the hanging? It is not enough if the lawyer knows the judgment, the case is filed by Memon, and he should read it himself. The case is in his name, the lawyer only pleads. The judgment is not for the lawyer, but for Memon. Some of the frivolous questions are in circulation in print and social media as under:

a. Article 137 is a constitutional remedy available to a person to file a review (against the July 29, 30 judgments). This was denied to him.
b. Has a constitutional court, anywhere in history, refused a person begging to live for just two more weeks? After spending 21 years in jail, what would have happened if his life was extended for just another 14 days, that too, in a single cell in the jail?
c. In the history of the Supreme Court, has any case been heard with such speed? A three-judge bench, on July 29, decided Memon’s writ petition on merits without even issuing notice or giving an opportunity to file a counter.

Point Wise Assessment As Under
The course of justice cannot go on and on and has to be brought to an end at some point of time.

a. Can a Court grant 14 days more on the premise based on emotional considerations rather on legal nicety? The reckoning of the period of 14 days commences from when to when? In the absence of clarity, by account of logic. it has to be counted from the time the first mercy petition was filed.

b. Can we afford ignoring the quantum and nature of punishment from the conduct of crime and over all perspective? Can matter dealt with under TADA be equated with the case under normal laws? It was one of the deadliest attacks on the financial capital of India, killing more than 250 people and injuring 713. The attacks were allegedly planned and carried out by one of the country’s most wanted men, Dawood Ibrahim, and his accomplice Tiger Memon to avenge Muslim deaths during the Hindu-Muslim riots that had rocked the city a few months earlier. In Sep 2001, Yakub was allowed some time out of jail after his father Abdul Razak Memon died.

c. If the SC heard the case with speed and alacrity, this can be not refuse and alibi saying that why the court should not have acted in the same way as normally seen.

Relevance of Capital Punishment
"Society is justly ordered when each person receives what is due to him. Crime disturbs this just order, for the criminal takes from people their lives, peace, liberties, and worldly goods in order to give himself undeserved benefits. Deserved punishment protects society morally by restoring this just order, making the wrongdoer pay a price equivalent to the harm he has done. This is retribution, not to be confused with revenge, which is guided by a different motive. In retribution the spur is the virtue of indignation, which answers injury with injury for public good... Retribution is the primary purpose of just punishment as such... Rehabilitation, protection, and deterrence have a lesser status in punishment than retribution."

"Retribution is just another word for revenge, and the desire for revenge is one of the lowest human emotions — perhaps sometimes understandable, but not really a rational response to a critical situation. To kill the person who has killed someone close to you is simply to continue the cycle of violence which ultimately destroys the avenger as well as the offender. That this execution somehow give 'closure' to a tragedy is a myth. Expressing one’s violence simply reinforces the desire to express it. Just as expressing anger simply makes us more angry. It does not drain away. It contaminates the otherwise good will which any human being needs to progress in love and understanding."

Purpose of Punishment

What is the purpose of punishment? We take our lead from one major source, our parents—and they no doubt took their lead from their own parents. When your young child emulates what he just saw in a Rambo movie, you give him a stern lecture about what is real and what is not, what is acceptable in real life and what is not. When your child tries some crazy acrobatic move off a piece of furniture and hurts himself, you might spank him to be sure that he remembers never to do it again.

So when the child grows up, breaks into a home, and steals electronics, he gets caught and goes to prison. His time in prison is meant to deprive him of the freedom to go where he wants anywhere in the world, and to do what he wants when he wants. This is the punishment, and most people do learn from it. In general, no one wants to go back. But if that child grows up and murders someone for their wallet or just for fun, and they are in turn put to death, they are taught precisely nothing, because they are no longer alive to learn from it. We cannot rehabilitate a person by killing him or her.

Nevertheless, if would-be criminals know undoubtedly that they will be put to death should they murder with premeditation, very many of them are much less inclined to commit murder. Murder still happens very frequently. So some criminals disregard this warning for various reasons. In a larger sense, capital punishment is the ultimate warning against all crimes. If the criminal knows that the justice system will not stop at putting him to death, then the system appears more draconian to him. Hence, he is less inclined to break and enter. He may have no intention of killing anyone in the process of robbing them, but is much more apprehensive about the possibility if he knows he will be executed.

Conclusion
Supreme Court must be saluted the way it has functioned to ensure that justice is done. "Complete access to justice was given to Yakub Memon for the last 22 years. Justice has been done and the Supreme Court must be saluted," A curative petition was filed and was dismissed on July 21, 2015. A new writ petition was heard from July 27 till Wednesday. Even the Maharashtra governor and the President rejected his (Yakub's) clemency pleas again. Then fresh petitions were moved at midnight in the Supreme Court. Mukul Rohatgi, Attorney General while talking to India Today TV, earlier in the day, said, "Death penalty can not be abolished in India at this point of time. There has to be some kind of deterrence."

It appears that the politicians and some vested interests in society clamoured more for this person as he belonged to so referred minority community particularly in newly surcharged society, based on religion fervor and narrow considerations projecting the entire case exercise as some sort of designed and created one with some motives even involving the courts up to the highest Court of the land. If a judge gave a dissenting view, it was flared and considered true by all means at the cost of majority assenting judgment. The same did not happen perhaps in countless cases of such nature. Despite extraordinary move of the Supreme Court, by opening up the Court at mid night and providing repeated moves for reviews and curative petitions, it can be reasonably summed up that all talks of gap of 14 days is eye wash as by application of all reasons, the gap is to be counted from the day the first review petition which was rejected.




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