Statements on Yakub Memon’s Hanging

August 5, 2015

CPDR Statement condemning the hanging of Yaqub Memon by the Indian state

August 5, 2015

First of all, CPDR is opposed to capital punishment in all circumstances and we have reiterated the reasons on several occasions. Our main argument against capital punishment is that any miscarriage of justice becomes irreversible. As the famous French Enlightenment historian and philosopher, Voltaire once put it: “It is better to risk saving a guilty person than to condemn an innocent one.” Indeed, in the Indian judicial context, there is still much debate about the “rarest of the rare” idiom—what specific legal conditions should be fulfilled for a judicial bench to pass the death sentence? Indeed, in Afzal Guru’s case, the Supreme Court of India stated in its judgment that the “collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender”! The CPDR expected and demanded that the Indian state—particularly the judiciary—would rise above the loud cries of the Hindutvavadins to “hang him”, but the state chose not to heed the voices of reason.

It is shocking that the Indian state was hell bent on hanging Yakub Memon on 30th July 2015, his birthday, and used its machinery to ensure that the day and timing was met. The TADA court issued Yakub Memon’s death warrant on 30th April 2015 even as Memon’s curative petition was pending before the Supreme Court, which the latter dismissed much later, on 21st July 2015. A writ petition then filed by Yakub Memon suffered a split verdict on 28th July 2015, with one judge finding it proper to dismiss the petition even though Yakub Memon’s mercy plea was pending before the governor of Maharashtra. The other judge raised a fundamental issue—that it was necessary for the court to consider whether the petitioner’s curative petition had been decided in accordance with law—and he stayed the execution warrant. The split verdict necessitated a larger Bench to hear the matter, which was constituted the same evening and the petition was placed for hearing on 29th July 2015, a day before the execution. The 3-judge bench heard the matter and upheld the curative petition’s order and the death warrant.

The defence lawyers however did not give-up—they filed another writ petition, on the ground that Yakub Memon’s mercy plea to the President had a few hours ago been rejected and he should be given an opportunity to challenge the same. This mercy petition had for the first time brought on record the posthumous publication of an article written by B Raman, one-time head of the counter-terrorism section of the Research and Analysis Wing (RAW), India’s external intelligence agency, stating that the investigating agency had lured Yakub Memon to return to India, that he had cooperated with the investigating agency, and that he should therefore not be hanged. In the light of this, the defence lawyers argued that the death warrant should be stayed. The Bench before which the matter was placed was the same 3-judge Bench that had just dismissed Yakub Memon’s earlier petition. It held its sitting in the Supreme Court at 3.00 a.m. on 30th July 2015, concluding that the court “did not perceive any merit in this writ petition” and thereby dismissing it. Yakub Memon was hanged to death a couple of hours later.

Why did the Supreme Court not “perceive” that it was important to give Yakub Memon the 14 days period to challenge rejection of his mercy petition as had been laid down by the Supreme Court in Shatrughan Chauhan’s judgment? The President too, hastily on the night of 29th July 2015, rejected Yakub Memon’s mercy plea which had been submitted to the jailor of Nagpur Central Prison on 28th July 2015. The Home Ministry’s recommendation to the President to reject the plea came the very same night, and the President readily obliged, and, as seems evident, with no application of mind when rejecting the mercy plea.

What sort of criminal justice is this, where the Indian state induces the accused with the implicit promise of protection against the death penalty to give himself up and stand trial, and then, when he does, forgets the “mitigating circumstances” of his cooperation with the Intelligence agencies, and hangs him? And, the insistence and unfathomable haste in hanging Yakub Memon, not in the least being bothered about a possible miscarriage of justice which would then be irreversible?

CPDR condemns the hanging of Yakub Memon by the Indian state, which seems to have been motivated by the Hindutvavadi desire for revenge. It is tragic that such brutality seems to have become this state’s eternal law. Death penalty is a cruel and inhuman punishment and we demand its abolition, and pending the fulfilment of that demand, a moratoria on all such executions.

ANAND TELTUMBDE
General Secretary
CPDR, Mumbai.

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CRPP Statement condemning the judicial murder of Yakub Memon for satisfying “collective conscience”

Capital punishment is the most premeditated of murders.
-Albert Camus
What says the law? You will not kill. How does it say it? By killing!
-Victor Hugo

July 31, 2015

The CRPP strongly condemns the judicial murder of Yakub Memon who was hanged to death on 30 July 2015 at 7 in the morning after a prolonged drama in the Supreme Court till the wee hours of the same day. The media was abuzz with stories about how vibrant the Indian democracy and its legal apparatus are as the jurists burnt the midnight oil to consider even the last bit to see if Yakun Memon can be reprieved so that his death sentence be commuted to life. If in Mohd. Afzal Guru’s case every procedure was violated by the State, in that of Yakub Memon the Supreme Court made a farce of all the procedures while pretending that even it sat into the early hours of the 30th July to consider the last minute plea of someone who was facing the gallows the same day at seven in the morning. The Supreme Court even made its own judgements redundant when it had commuted the death sentence of many citing the reasons of undue delay which in itself amounts to torture for those condemned to death.

Still it is difficult to ascertain what lurks behind this haste to take away the life of someone whose ‘offence’ had been proved only through the confession of another person. The haste with which the two executive authorities of the State—Maharashtra Governor and the President of India—rejected Yakub Memon’s mercy petition overnight without giving him time at all to challenge in the court further shows the political and premeditative nature of the decision to take away the life of someone.

The political nature of the decision becomes all the more evident when one looks back through memory lane. In 1987, forty two Muslims were picked up by the Provincial Armed Constabulary (PAC) from Hashimpura town near Ghaziabad in Uttar Pradesh—arguably within shouting distance from New Delhi, dotted at present with flashy malls and multiplexes—and killed one by one at almost point-blank range. The victim Muslims were thrown out of a PAC truck like gunny bags and, as they fell, were showered with bullets until they died. This was the precursor of the Rath Yatras led by the BJP leadership under LK Advani that finally resulted in the demolition of the Babri Masjid in December 1992. The build-up towards the demolition of the Babri Masjid through rath yatras punctuated with communal riots saw scores of Muslims getting targeted including the town of Meerut where Hashimpura is located. After almost 28 years, all the policemen who remained till date to see the trial end were left scot free for want of evidence. Post-Hashimpura, the build up towards the destruction of Babri Masjid and its aftermath saw hundreds of thousands of people perishing in communal riots most of them Muslims. Muslim women were targets of Hindu fundamentalists and their property also became easy targets of destruction. All those perpetrators, masterminds of such crimes against humanity were set free. When we move ahead in our memories to the days of the Gujarat carnage no less than 2000 Muslims lost their lives and the scale of destruction of their property knows no bounds. But the top police officials, administrative officers, who oversaw the crime of social engineering—that ensured Narendra Modi rule Gujarat for more than a decade and finally reach Delhi riding on the pulpit of bones of the slain—are out on bail and back in their posts. The most glaring example is the bail given to Maya Kodnani and Babu Bajrangi.

By 2015 we have passed a long road where we could see a series of blasts triggered by Hindu fundamentalist forces in public places, mosques, trains etc. This was more or less admitted by the mastermind Aseemananda himself. The likes of Colonel Purohit and his organization Abhinav Bharat also established a well-knit network of Hindu fundamentalist forces with specific plans to target the most vulnerable sections of the society to foment hatred against the minorities and finally realize a Hindu-fundamentalist state. But we are also witness to the present government going slow in expediting such cases. It is not to say that these people should be given death penalty. But the emphasis is to expose the outright prejudice towards the Muslim community patronized both by the Congress and further championed by the BJP and RSS so as to deepen the fangs of communal fascism in the subcontinent.

Successive governments in Delhi have failed miserably to deal with any of the pressing problems of the broad masses of the people and not a single political party in the parliament is shying away from playing shadow games to facilitate the full fledged expropriation of the wealth and resources of the peoples in the subcontinent by the multinational corporations. The policies of successive governments at the centre and the states have inflicted ever more hardships on the lives of the general masses (more than seventy percent of the largest democracy) with rural India becoming graveyards for the peasantry. The ever-growing spectre of unemployment is threatening to engulf the length and breadth of the subcontinent. In such a scenario where politics and the talk of good governance have been reduced to spectacles of rhetoric with the expectations of the aspiring middle class hitting its nadir, the only way out for the ruling classes is to whip up the politics of a so-called ‘collective conscience’, a euphemism for jingoism that can get satiated only through the blood of the minorities, the other—especially the Muslims. The build-up towards the pre-meditated murder of Yakub Memon is nuanced with a parallel narrative of the possibilities of his death sentence getting commuted to life by a vibrant democracy that vouches on the rule of law. The plot further gets thickened with the sudden dovetailing of the so-called “terrorist” attack in Gurdaspur which, as usual, will be shrouded in intrigue till all of us lose our memories and our criticality to know as to who was behind this “attack”?
The terror theatre of Gurdaspur successfully dovetailed the narrative of the ideology of ‘war against terror’ into the common sense of the people so much so that the consent for the hanging to death of Yakub Memon or all ‘traitors’ become absolute and unquestionable. The politics of retribution and revenge once again took centre stage with death penalty becoming the ideal deterrent and the marker of a stronger, resolute national security state.

Death penalty in a class divided society like India with national, regional, communal and casteist prejudices can only result in further strengthening the ideology of a Hindu Brahmanical social order where death penalty is reserved as the right of the minorities—Muslims, Kashmiri Muslims, Dalits, and other oppressed nationalities. As long as the social and economic basis for this ideology of appropriation, oppression, domination, discrimination and exploitation prevail and pervade the social fabric of the subcontinent, justice itself gets periodically hanged! Death and destruction become the markers of a society that claims to be the largest democracy in the world.

The CRPP calls upon all democratic and freedom-loving people of the subcontinent to see through this politics of retribution and hate and reject the ideology underlying it lock stock and barrel.

In Protest,
SAR Geelani
President

Amit Bhattacharyya
Secretary General

MN Ravunni
Vice President

Sukhendu Bhattacharjee
Vice President

Sujato Bhadra
Vice President

P. Koya
Vice President

Rona Wilson
Secretary Public Relations

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PUDR Statement on Yakub Memon’s Hanging

July 22, 2015

PEOPLE’S UNION FOR DEMOCRATIC RIGHTS

On 15th July, the Maharashtra government announced that it has initiated the process for hanging Yakub Memon. On 30th July, 2015 ‘he is to be hung by the neck till dead’. The announcement seemed inevitable after the Supreme Court had rejected his review petition on 10th April this year. Except that Yakub Memon has still not exhausted all legal remedies as he has a curative petition due to be heard in the Supreme Court on 21st July. While the state government is treating the matter as already dried and dusted and making a mockery of the justice system, there are some very valid reasons for drawing attention to Yakub’s case for upholding our faith in the judicial process:

1. Controversial arrest: The police claimed to pick Yakub up from the New Delhi Railway Station on 5th August 1994. In a letter written to the Supreme Court in 1999, Yakub stated that he came to India on 28th July 1994. He had been detained on 24th July at Kathmandu airport and then handed over to the Indian agencies.

2. Implicated and sentenced for trying to help: Yakub has maintained all along that he had no foreknowledge of and had no hand in the conspiracy leading to the Mumbai blasts of 1993. He was working towards voluntarily returning to India to clear his name. He co-operated with the investigating agencies and provided vital leads which have been acknowledged. However, the Court never regarded these as mitigating factors.

3. No justice under TADA: The Supreme Court in its 2013 judgement confirming death sentence awarded by the TADA court in 2007, held that Yakub officiated for Tiger Memon in Mumbai in the planning of the attacks in the latter’s absence. The Court accepted that Yakub was nowhere directly involved in the execution of the blasts, but his responsibility was greater as he was one of the planners. It said that he “was constantly present at the Al Husseini building, where the major part of the plan was made and executed”, interacted with ‘Tiger’s men’, managed Tiger’s “ill-gotten money,” arranged for air tickets to Dubai and vehicles which were used in the attacks. He was convicted under TADA (now lapsed), IPC, Arms Act, Prevention of Damage to Public Property Act, and under sections of the Explosive Substances Act on retracted confessions, on the statements of approvers and on the confession of co-accused.

4. “Special Stigmatizing”: Yakub had returned in 1994 believing that there would be a fair trial. He was proved wrong. The judgement decreed capital punishment for him because of his “position of dominance” and the “gravity of the crime”. Significantly, the Court commuted the sentences of the 10 others who had been awarded capital punishment by the trial court.

5. Rejection of mitigating factors: The Supreme Court deliberated on the aggravating and mitigating circumstances while awarding the quantum of punishment to all the death row convicts. Notably, in Yakub’s case, the Court noted none other than the fact that he did not have a prior criminal record. However, in the case of the other 10 others sentenced to death, the Court noted several other mitigating factors like lengthy incarceration, good behaviour, co-operating in the investigation, dependent family members etc. which were equally applicable to him. In Yakub’s case, the beginning and end of his being awarded death penalty then is clearly his relationship with Tiger Memon.

6. A discriminated convict: While confirming the death sentence on Yakub, the Court disregarded the fact that he suffered from depression from 1996. Ironically, a year later, while commuting the death penalty of 15 death row convicts in 2014, the same Court noted: “incarceration, in addition to the reasonable time necessary for adjudication of mercy petitions and preparation for execution, flouts the due process guaranteed to the convict under Article 21 which inheres in every prisoner till his last breath.”

7. Incarcerated for 21 years: For 21 years Yakub has lived with the “brooding horror” which “haunts” a condemned prisoner. To hang him now is neither fair nor just as it is punishing him twice over. It is plain vengeance which the state shows towards a condemned and defenceless man.

8. Denial of reform: A chartered accountant by profession, Yakub was known to be a silent observer during court proceedings. In 21 years of which he has spent 8 years in the death row, he has completed two MAs, one in English and the other in Political Science from IGNOU. Several recent judgments have emphasised the importance of reform and rehabilitation based on conduct. However, Yakub’s efforts have never been recognized.

9. A political hanging: The judicial process through which Yakub has been pronounced guilty and deserving of capital punishment has failed to bring to justice the main perpetrators of anti-Muslim carnage in December 1992 and January 1993, despite the Srikrishna Commission of Inquiry identifying a host of police officers and politicians belonging to Shiv Sena for their role. In the last one year, a similar trend is observable in the investigations into attacks committed by Hindu terror groups. 15 witnesses have turned hostile in the Ajmer Dargah blast (2007), the NIA has closed the Modasa case (2008) and has pressured the special prosecutor to ‘go soft’ on the investigations into the Malegeon blasts (2008).

The impending hanging of Yakub Memon raises certain very significant concerns regarding the role of the state and rights of people. As the above points illustrate, Yakub’s ‘crime’ is that of guilt by association and he is a scapegoat who has been conveniently caught and convicted as ‘most guilty’. Yakub Memon returned as a conscientious Indian citizen, albeit with a ‘criminal’ family background. If he is now hanged, the government must take responsibility for sending out the message that a Muslim cannot be a good citizen.

It is also imperative to ask as to what justice will be served through such an execution? Such regressive judicial pronouncement yet again convinces us that death penalty is not only prejudiced but also irrational. Fraught with the possibility of judicial error, the irreversibility of the punishment makes it totally condemnable. Globally, there is a move within countries to progressively do away with this regressive form of punishment. PUDR therefore urges the authorities including the judiciary in this case that in the interests of justice to commute his sentence, and in light of his 21 year-long incarceration to release him.

Megha Bahl, Sharmila Purkayastha
Secretaries, PUDR
20th July 2015