Yakub execution: A complex affair

Those who sought a reprieve for a condemned Yakub Memon must rue their delay in showing their frenetic intent so late in rescuing a man condemned to the gallows. It goes without saying that it’s the President they should have directed their prayer and that too way back in 2013. Civil Society activists’ intent on rescuing Yakub should have done this as soon the Supreme Court pronounced death sentence only on Yakub. Clemency for the condemned is the sole prerogative of the Head of the State of our Republic.

The other riddle post-execution is that prior to his death, Yakub had not even once mentioned former intelligence officer B Raman’s supposed assurances. The former intelligence officer was a key person who, along with officers of the CBI and the Intelligence Bureau, had put in best efforts to crack Yakub Memon and bring him to justice in India. Yakub did not say anything about B Raman’s assurance or to trial judges Patel or Kode. In addition, Raman had not separately written to either of us that he had given an undertaking. Why and how has this Raman Effect surfaced now (no reference to the famous Nobel Prize winning scientist)?

The CBI had previously acted swiftly to free 26 of the 189 charged in 1993 by Bombay Police, as it concluded after appraising their investigation that these 26 were innocent. This is a matter of record. They were given an honourable discharge in 1995 itself. Another reprieve, also in 1995, was to tell the Court of Judge Patel that CBI was dropping the “Waging War” charge which Bombay Police charge sheet mentioned against all 189 accused. Had I known of Raman assurance it would have been known to the public <g data-gr-id="62" style="display: inline; color: inherit !important; font-size: inherit !important; border-bottom-width: 1px; border-bottom-style: solid; border-bottom-color: transparent; background-image: url(data:image/png;base64,iVBORw0KGgoAAAANSUhEUgAAA+gAAAACCAYAAADLlPadAAAABmJLR0QA/wD/AP+gvaeTAAAAKklEQVRYhe3OQQEAIAgEsMM6xrMb9SQGny3B6vb7AQAAAFad7QAAAACQDAGHAlfrnYEmAAAAAElFTkSuQmCC), url(data:image/png;base64,iVBORw0KGgoAAAANSUhEUgAAAAEAAAACCAYAAACZgbYnAAAABmJLR0QA/wD/AP+gvaeTAAAAEklEQVQImWNY/ejYfyYGBgYGABiLA1VQQvxSAAAAAElFTkSuQmCC); background-size: 0px 2px, 100% 2px; background-position: 200% 100%, 0px 100%; background-repeat: no-repeat, no-repeat;">prosecutor.</g> CBI prosecution was professionally conducted. The execution of Yakub Memon is an enduring mystery for some but not for the CBI.

Yakub Memon was certainly guilty of a crime – involvement in the conspiracy which led to the heinous bomb blasts in Mumbai which took the lives of 257 persons. It is, however, clear that Yakub Memon was singled out for severe punishment because his brother Tiger Memon, the main conspirator along with Dawood Ibrahim eluded the law. Yakub Memon was prepared to return from Pakistan and cooperate with the authorities. Despite the fact that he had provided valuable information and evidence as to how the ISI in Pakistan assisted the conspirators; a fact attested to by the former senior intelligence officer, he deserved the death sentence. In fact, the Supreme Court had dismissed the revision petition disregarding these mitigating factors. The three-member bench of the Court also rejected his curative petition, overruling the procedural errors raised by Justice Kurian Joseph in an earlier two-member bench.

However, certain activists do believe that the President of India could have exercised the powers accorded to him under Article 72 of the Constitution. Unfortunately for them, this was not how it turned out. What has, thus, worried many activists is that the Supreme Court’s decisions on appeals on the death penalty have been inconsistent and marked by the views of the individual judges who constituted the bench. In 2014, the Supreme Court commuted the death sentences in some important terrorist cases.

The three persons convicted in the Rajiv Gandhi assassination case, which was a major terrorist attack, got their sentences commuted to life imprisonment. Soon after, Devinder Pal Singh Bhullar who was sentenced to death for a terrorist blast also got his sentence commuted to life. In both these cases, there was strong political backing for commuting their sentences in Tamil Nadu and Punjab respectively.

The fact is since 2004, in the past eleven years, only three convicted persons have been hanged. If we exclude Ajmal Kasab, who was a Pakistani national, the other two are Muslims, Afzal Guru and Yakub Memon. However, the <g data-gr-id="55" style="display: inline; color: inherit !important; font-size: inherit !important; border-bottom-width: 1px; border-bottom-style: solid; border-bottom-color: transparent; background-image: url(data:image/png;base64,iVBORw0KGgoAAAANSUhEUgAAA+gAAAACCAYAAADLlPadAAAABmJLR0QA/wD/AP+gvaeTAAAAK0lEQVRYhe3OMQEAIAwDsA6DHPh/ZoTJ2JMoSPW7PwAAAMCqsx0AAAAAkgHerQKHq3BtYQAAAABJRU5ErkJggg==), url(data:image/png;base64,iVBORw0KGgoAAAANSUhEUgAAAAEAAAACCAYAAACZgbYnAAAABmJLR0QA/wD/AP+gvaeTAAAAEklEQVQImWP4vGvnfyYGBgYGABl4A2hm/SKhAAAAAElFTkSuQmCC); background-size: 0px 2px, 100% 2px; background-position: 200% 100%, 0px 100%; background-repeat: no-repeat, no-repeat;">blood lust</g> displayed by certain right-wing political parties with regard to those accused of terrorism is selective. 

Yakub Memon’s fate may underline the need for a review of the death penalty. The “rarest of rare” doctrine is interpreted subjectively by individual judges. The bulk of those who are convicted on the death penalty are poor and who belong to the socially oppressed sections according to a study by the National Law University, Delhi. 75 percent of those who are death row convicts are economically vulnerable i.e. the poor, 75 percent belong to the backward classes and minorities.

It is, therefore, necessary to mobilize public opinion and the political parties to support a review of the death penalty. Our judiciary must exhaustively come out with a less fluid definition of “rarest of the rare”.