Abolish Death Penalty India: Supreme Court stays Yakub Memon's execution in 1993 blasts case

Friday, February 6, 2015

Supreme Court stays Yakub Memon's execution in 1993 blasts case

Swati Deshpande, TNN | Dec 11, 2014, 02.54AM IST

MUMBAI: In a relief to Yakub Memon, the lone death row convict in the March 12, 1993 Mumbai serial blasts case, the Supreme Court on Wednesday issued notice to the CBI in a review plea he filed and stayed his hanging. Yakub Memon, younger brother of the absconding blasts mastermind Tiger Memon, has been in custody for almost two decades and is at present lodged in Nagpur prison.

A bench of three judges headed by Justice AR Dave and comprising Justices J Chelameswar and Kurian Joseph granted relief to Memon, whose death sentence the President of India had upheld earlier this year. Memon moved the SC again with a review petition against the death penalty. The SC three-judge bench posted it for hearing on January 28, 2015. "It is directed that death penalty shall not be executed till the pendency of the review petition," the judges said. Earlier on June 2, the vacation bench of the SC had stayed Memon's execution and asked that his review be listed for hearing.

Memon's case is that the courts have not given any special reasons for sending him to the gallows. The designated trial court under the repealed Terrorist and Disruptive Activities (Prevention) Act had in 2006 held him guilty of criminal conspiracy and financing air tickets to send co-conspirators for arms and RDX training to Pakistan. The conviction was based almost entirely on retracted confessions of the approvers and other co-accused.

The SC, in its 2013 judgment upholding the death sentence, had observed that "A-1 (Yakub Memon) assumed the role of Tiger Memon in India during his absence." Memon's case in the review plea is that the apex court does not refer to any independent evidence to show his role in the actual terrorist activities in the planning and execution stages.

Memon, who sources said is not keeping good health and is under medication in Nagpur jail, has sought commutation of the death penalty also on the grounds that he cannot be punished twice for the same offence since he has already served 20 years in prison.

Yakub Memon, younger brother of the absconding blasts mastermind Tiger Memon, has been in custody for almost two decades and is at present lodged in Nagpur prison. A chartered accountant, Memon has been in solitary confinement in a separate cell in Nagpur jail since his conviction in 2006. Prior to that, during trial, he was in Mumbai's Arthur Road jail since his return to India with his family to surrender in 1994. Neither Yakub nor any other member of his family confessed in the case. A constitution bench had earlier said a review plea must be given a hearing in an open court, and Memon sought just that.

Over 250 people died and more than 700 were injured in the blasts. Yakub's parents, his three brothers and sister-in-law had returned to India with him and were all tried. While his wife, mother and brother Suleiman were acquitted, Yakub, two brothers Essa and Yusuf and sister-in-law Rubeena were convicted and sentenced.

Source: http://timesofindia.indiatimes.com/india/Supreme-Court-stays-Yakub-Memons-execution-in-1993-blasts-case/articleshow/45464270.cms [last accessed 06.02.2015]

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The Death Penalty Scenario in India

India is one of the 193 countries that retains death penalty. There has always been a few imminent judges who have pronounced compelling verdicts upholding the rights of prisoners on death row. There has been increasing debate in various platforms advocating abolition of death penalty or at least to rethink sentencing policies in India. The Indian government has however always been committed to the retention of the death penalty, irrespective of their political ideology. India has voted against a United Nations General Assembly (UNGA) draft resolution on the use of death penalty, saying it goes against the statutory law of the country where an execution is carried out in the "rarest of rare" cases. India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-retarded person and has more recently in 2013 come to include the offence of rape in certain circumstances. Most recently, there is an outrage over child rape and murder.

After observing an unofficial moratorium of 8 years in India, the Indian Government in November 2012 carried out the execution of Ajmal Kasab, convicted in the Mumbai attacks case, without public knowledge. This was followed by the secret execution of Afzal Guru, convicted in the Parliament attack case of 2001, in February 2013, under similar circumstances, without intimating his immediate family or affording a chance of judicial review. In both cases, the executions were carried out under covert operations conducted by the Government immediately upon rejection of their mercy petitions. Before these executions, the last execution to be carried out in India was that of Dhananjoy Chatterjee in 2004 who was convicted of rape and murder and which sentence was carried out after he had spent 13 years in solitary confinement. Following this, several mercy petitions of death row convicts have come to be rejected. The fear of execution of such convicts is imminent. Bolstered by the Government's unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate.

In the recent past, there have been a few empirical studies (mainly four) conducted with prisoners on death row. This has highlighted the situation of prisoners on death row.

(1) Most recently the India Exclusion Report 2017-18 found that fair trial rights and guarantees are reduced to a nullity and seeks to breach the citadel of the collective silence. It further said that Convicts on death row in India belong to groups marginalised along the axes of caste, religion, economic vulnerability and educational deprivation, and their fair trial rights, though a part of the Right to Life guaranteed by the Constitution, are invariably non-existent, a survey of 371 out of the 385 persons living under the death sentence and their families has revealed.

(2) Another study was The Death Penalty Research Project (2015) which was conceived with an aim to document the socio-economic profile of prisoners sentenced to death in India and map their experience within the criminal justice system.

There were two other academic studies that were done conducted by Dr. Reena Mary George –

(3)“Voices of prisoners surviving the death row in India” (2014) done through the University of Vienna under the guidance of Prof. Dr. Christoph Reinprecht (Sociology) and Prof. Dr. Manfred Nowak (Law and Ex-United Nations Rapporteur on Torture). George’s research highlights three salient features, namely: poverty, social exclusion and marginalisation are antecedent to death penalty; death penalty is a constructed account by the state machinery; and prisoners on death row situate dignity higher in the juxtaposition of death and dignity.

(4) Another one “Death Penalty – A Human Rights Perspective” (2009) done through the University of Mumbai under the guidance of Retired Justice Hosbet Suresh. This was a study in Maharashtra with the objectives to firstly study the impact of death penalty on the social, mental, and physical being of the inmate and secondly, to study the perception of opinion leaders on death penalty with reference to human rights. All the above reports are public documents.

According to the National Crime Records Bureau, Prison Statistics 2015, there are 101 prisoners sentenced to death. The actual figure of sentences originally awarded is much higher considering the death sentences of 49 convicts came to be commuted to life imprisonment in the said period. As of today, almost in 2019, the figures are unknown through government statistics, however, research centres claim this figure to be around 371 convicts. During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases. The doctrine has not had the desired effect. According to a former chief justice of the Delhi High Court, Rajindar Sachar: “after the rarest of rare doctrine was introduced in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 while it was 37.7 per cent between 1970 and 1980. For the high courts it rose from 59 per cent in 1970-80 to 65 per cent during 1980-90”. Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency.

Most recently while commuting a sentence in Supreme Court (2018), Justice Joseph did not seek the reconsideration of the Bachan Singh judgment, but only sought to re-examine the purpose and practice of the death penalty, and whether as a punishment, it serves any goal at all. In other words, the death penalty can continue to remain constitutionally valid because of the Bachan Singh judgment, but its application in substantive cases coming before the court must be restricted to only those cases which meet the criteria laid down in that case.

While updating the blog and conducting my own empirical studies, I observed the heinous nature of the crimes that were committed and thought about the families, about their loss, about the victims who for no fault of their own died. If I lost my relative or a dear friend, would I still oppose death penalty and would I still advocate to abolish the death sentence? Having worked in the criminal justice system and also having the seen the other side, where often it is the marginalized, vulnerable and oppressed who are on death row makes me want to advocate for abolition of this punishment. Victims should definitely get justice for their loss, for their pain. No one should escape the rule of law. As long as humanity exists; crime will exist. Should we not re-consider our sentencing policies?

Reena Mary George

Abolish Death Penalty India

Friday, February 6, 2015

Supreme Court stays Yakub Memon's execution in 1993 blasts case

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