The late Goolam E. Vahanvati, Attorney General for India, was a great host. He once hosted a lunch for his lawyer friends at his official residence, where among the choicest food and drink, there was a full roast goat put out for consumption. I heard a lawyer pulling Goolam’s leg by remarking in Hindi, “Very unjust Goolam, very unjust; so many lawyers, and only one ‘bakra’ (goat).” I was reminded of this incident as I reviewed the swirl of debates surrounding the Yakub Memon case. It seemed to me that there were just too many legal doctrines involved and only one scapegoat.
An unequal filter
The first doctrinal question was the very validity of the death sentence itself if it could not be fairly administered. Capital punishment, now even more than before, appears to be a “lethal lottery”. Actual execution is dependent on variable factors like the personal inclinations of judges, administrators and the political environment of the moment. Actual executions seem to now take place only in the case of the politically friendless like Ajmal Kasab and Afzal Guru, while some like Devinder Bhullar, Balwant Singh Rajoana and the Rajiv Gandhi assassins are deemed politically unexecutable. While the legal process ostensibly decrees hanging in the rarest of rare cases, the quality of mercy is strained through an unequal filter.
The next doctrine is that of the soft state acting tough on terror. Strangely enough, for all the much vaunted, tough legal measures against the menace of terrorism, Yakub Memon is probably the only person actually executed under the Terrorist and Disruptive Activities (Prevention) Act of 1985. Passed in the immediate aftermath of Sikh terrorism which culminated in Indira Gandhi’s assassination, the Act dispensed with many of the inherent safeguards built into the ordinary criminal law. Confessions recorded by police officers were made admissible as evidence. It also did away with the traditional appeal to a High Court. Thus, Yakub effectively ended up with one trial and one appeal, both processes which were shared with more than a hundred co-accused.
The road to execution
When a large number of persons are tried together, courts are loath to throw out prosecution cases in toto. Often, the process ends up in separating those who appear to be less guilty from those who have a greater involvement. Despite all the acquittals and reductions of sentences, there generally remains the “baddest of the bad”, upon whom the full force of retribution descends. When it came to sentencing, the question asked was the extent of variable punishment based upon individual roles in a collective crime. In this case where the designated court had sentenced 11 people to death, the Supreme Court, in appeal, commuted all but one of them to life imprisonment. The Supreme Court spared the lives of the actual planters of explosives, treating them as mere underlings. However, two factors operated against Yakub. The court held: “these two factors — a commanding position and a crime of ‘utmost gravity’ ordinarily merit the extreme penalty even accounting for the guilty plea and mitigating factors. This is the special reason which warrants death penalty to the accused”. Where even the prosecution case was of a conspiracy hatched abroad by Dawood Ibrahim and given effect to by Yakub’s brother, Ibrahim (Tiger) Memon, it is hard to see Yakub as having played a commanding role when contrasted with the principal conspirators. However, when compared with the people actually apprehended and put on trial, Yakub was the biggest fish available to fry. Yakub probably would not have been sentenced to death had he had his brother’s company through the trial and appeal.
With the sentencing having been done by 2013, and the mercy petition having been rejected for the first time in 2014, the road to execution seemed clear. A couple of new Supreme Court judgments emerged which granted a fresh ray of hope. In a case dealing with delayed executions, the court ruled that condemned prisoners needed to be given at least 14 days from the rejection of their mercy petition to prepare themselves for death. In another ruling, the court which normally disposed of review petitions by circulation in chambers, decided that in capital cases, such matters required to be heard in open court. These and other judgments came into play last month, as the death warrant was communicated to Yakub, fixing the date of July 30 for his execution.
A new writ petition was filed by Yakub where he argued that the warrant could not be issued so long as his last legal remedy, of a curative petition, was still pending. For those who still don’t know, a curative petition is not provided for in the Constitution. It is an innovation of the Supreme Court to cure basic defects if any in its disposal of a matter after the hearing and review stages. No such defect was found and the curative petition was dismissed on July 21.
‘Bringing Yakub back’
At this stage, a new controversy emerged with a hitherto unpublished article of the late B. Raman being published by a web portal. Raman wrote about the circumstances under which he, as the head of the Research and Analysis Wing, ensured that Yakub was brought back to India to face the law. The article detailed Yakub’s cooperation with the Indian agencies which led to securing evidence against the Pakistani establishment regarding its involvement in the bomb attacks. Raman felt that the prosecution seeking the death penalty for Yakub was not warranted, but the article was not published in Raman’s lifetime for fear of interfering with the judicial process. Raman’s brother authorised journalist Sheela Bhatt to release the articles only when Yakub’s imminent execution necessitated full disclosure. This voice from beyond the grave was not evidence on which a court could have acted. It could at best have been taken into account while deciding a fresh mercy petition. Several people including former Supreme Court judge H.S. Bedi, one of the best judges of criminal cases to serve on the court, urged the court to take a re-look at the case.
A last-ditch attempt
Yakub’s writ petition was heard on July 28 by Justices A.R. Dave and Kurian Joseph who differed with each other. Justice Dave found no fault with the warrant and dismissed the petition. Justice Joseph refused to wash the court’s hands of the case. He even questioned whether the bench hearing the curative petition had been correctly constituted. A split verdict in a death penalty should ordinarily have resulted in a stay of execution till a larger bench could be constituted to hear the case. However, Justice Dave declined to be a party to an order of stay, and the matter was placed before the Chief Justice who constituted a new bench of Justices Dipak Misra, Prafulla C. Pant and Amitava Roy to hear the case the very next day.
The three-judge bench heard the matter afresh through the day and dismissed it around 4 p.m. just before the court rose for the day. Shortly thereafter, Yakub’s mercy petition was turned down a second time by the President. Around 9 p.m., a fresh writ petition was filed in the Supreme Court, seeking at least 14 days for Yakub to prepare himself for execution. The matter was assigned to the same three-judge bench. In an unprecedented move, just hours before the scheduled execution, the doors of the Supreme Court were opened after midnight. The bench again sat at 3 a.m. on July 30 to hear this last plea. “Judges sleep, justice does not,” remarked Mr. K. Parasaran, India’s former Attorney General. That night, India was glued to reality television as an unprecedented contingent of sleepless, breathless reporters relayed to the world the last gasp efforts of a host of lawyers who simply gave their best and utmost to save or extend a human life.
It was not to be. The new petition was dismissed by the Supreme Court around 4.50 a.m. Soon, Yakub went to the gallows on the date predetermined in April this year, when his death warrant was signed by a sessions judge. Justice according to the law was done and seen to be done. But did Justice triumph? Was Yakub served his just deserts or was he made a scapegoat of by the system? I leave it to the reader to judge.
(Sanjay Hegde is a Supreme Court lawyer.)
Correction
,>>A few early morning callers were sceptical whether The Hindu got its spelling right in the Editorial page article, “ >Lethal lottery or just deserts? ” (August 5, 2015). “Isn’t it just desserts?” they wondered.
The correct spelling is indeed just deserts, which means “what one deserves or merits” – usually punishment. Because it’s spoken with the stress on the second syllable – just deserts – many writers infer the spelling desserts, a familiar word pronounced the same way. Ref: Oxford dictionary entry: http://www.oxforddictionaries.com/definition/english/deserts ; plural noun: what a person deserves with regard to reward or (more usually) punishment.
