How the President decides matters of life and death

Written by Maneesh Chhibber |Updated: July 29, 2015 6:14:13 pm

maneesh.chhibber@expressindia.com

If Yakub Memon is hanged on July 30, he will be the third death row convict to be executed following the rejection of their clemency pleas by President Pranab Mukherjee. Since he became President in 2012, Mukherjee has turned down mercy pleas in at least 24 cases. 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.

In October last year, Yakub applied for presidential pardon after which a report from the state government was sought by the MHA. (PTI)

Under the existing rules of procedure governing mercy petitions, the view of the Union Ministry of Home Affairs (MHA), conveyed to the President in writing, is taken as the view of the Cabinet, and the President decides a mercy petition accordingly. Once a convict has been finally awarded the death sentence by the Supreme Court, anybody, including a foreign national, can send a mercy petition with regard to that person to the President’s Office or the MHA. A mercy plea can also be sent to the Governor of the state concerned, who then forwards it to the MHA for further action.

The convict can file a mercy plea from prison through officials, his lawyer or family. These days, mercy petitions can also be emailed to the MHA or President’s Secretariat. A few years ago, the Union Ministry of Law told the MHA that the President’s power to grant pardons, reprieves, respites or remissions of punishment under Article 72 was “absolute and cannot be fettered by any statutory provisions” under the Code of Criminal Procedure or prison rules. The then Law Secretary, T K Vishwanathan, also said that while commuting the death sentence, the President could direct that the convict would remain in prison for the whole of his natural life, and not be released after remission of the term. Vishwanathan clarified that life imprisonment meant “imprisonment for the whole of the remaining period of the convicted person’s natural life, and not 14 years in prison”.

Different Presidents have dealt with mercy petitions differently. Since there is no fixed timeframe for disposing of a mercy petition, both the MHA and President have sometimes sat on cases for years. Thus, at the end of his five-year term, APJ Abdul Kalam left behind over two dozen mercy pleas, having decided only two — rejecting the plea of rape-cum-murder convict Dhananjoy Chatterjee (2004), and commuting the death sentence of Kheraj Ram into life imprisonment (2006). Kalam’s predecessor, K R Narayanan, was tardier, and failed to decide a single mercy petition during his 1997-2002 term.

MHA data show that Presidents, with the exceptions of Narayanan and Pratibha Patil, have dealt with mercy petitions largely without mercy. According to information released by the government under the RTI Act, of the 77 mercy pleas decided by Presidents between 1991 and 2010, 69 were rejected. Only 8 — about 10% — of those who sought mercy were spared the gallows. R Venkataraman (1987-1992) rejected 44 mercy pleas, the most by any President. During her 2007-2012 term, Patil, the country’s first woman President, accepted the mercy pleas of 30 death row convicts — pardoning, among others, Piara Singh, Sarabjit Singh, Gurdev Singh and Satnam Singh, who killed 17 members of a family at a wedding; Govindasamy, who murdered five relatives in their sleep; and Dharmender Singh and Narendra Yadav, who killed an entire family of five, including a 15-year-old girl, whom Yadav had tried to rape, and her 10-year-old brother, whom they burnt alive.

Several Presidents have allowed their personal convictions — views against the death penalty or religious beliefs — to come in the way of their taking swift action on pending mercy petitions. Central governments have been accused of being guided by political considerations in making recommendations on mercy pleas to the President. The MHA has sometimes jumped the queue in sending mercy petitions to the President — the most recent case being that of 26/11 terrorist Ajmal Kasab, who was hanged in November 2012. The Ministry has on occasion also changed its recommendation — from rejecting a mercy petition to favouring its acceptance. On the issue of delay in deciding mercy pleas, the Supreme Court in a landmark judgment last year held that the death sentence of a condemned prisoner can be commuted to life imprisonment on the ground of delay on the part of the government in deciding the mercy plea.

Source: https://indianexpress.com/article/india/india-others/how-the-president-decides-matters-of-life-and-death/ (Accessed on 18 December 2018)

The many wrong messages that hanging Yakub Memon would send

The Supreme Court's upholding the death sentence for the man who surrendered, hoping to clear his name in the Mumbai bomb blasts case, also draws our attention to the miscarriage of justice in the preceding riots.

Jyoti Punwani · Apr 20, 2015 · 09:45 am

What must Yakub Memon have felt on hearing that the Supreme Court had rejected his review petition against his conviction and death sentence in the 1993 serial Mumbai bomb blasts case. The mocking words of his brother, Ibrahim ‘Tiger’ Memon, advising him not to give himself up to the Indian authorities might have echoed in his ears. “You are returning as a Gandhiwadi, but the Indian government will see you only as a terrorist,” Tiger had told him, according to what Yakub told the special court in Mumbai set up under the Terrorist and Disruptive Activities Act.

On April 16, the Supreme Court rejected Yakub’s review petition against his conviction and sentence. The same court had earlier rejected his appeal against his conviction by a special court in Mumbai in 2006, and the president had rejected his mercy petition in May 2014. On the charges for which Yakub has been convicted, none of his co-accused has been given the death penalty.

Tiger Memon's words proved prophetic. Yakub gave up life in a gilded cage in Karachi under the ISI’s watch, to come back in July 1994 and clear his name in the case of the 1993 blasts, which had been masterminded by his brother and Dawood Ibrahim. He was followed by seven members of his family. Only Tiger, another brother Ayub, and their families stayed back.

With him, Yakub brought proof of Pakistan's involvement in the blasts, which India could not have otherwise obtained. He thought this act would earn him a reprieve. Instead, unable to get Dawood Ibrahim or Tiger Memon, the Indian authorities wrecked vengeance on the rest of the Memon family, who had chosen to surrender because of “faith in our government and judiciary”, as Yakub wrote in a letter to the chief justice of India from Arthur Road jail five years after he had set foot on Indian soil. (A copy of the letter appears at the end).

The government did not even have the grace to acknowledge that the Memons had chosen to surrender. Instead, the then home minister, SB Chavan, said in Parliament amidst much thumping of desks that the authorities had arrested Yakub from New Delhi railway station. “I've never seen it in my life,” wrote Yakub in his letter.

His family’s incarceration and their deteriorating physical and mental health drove Yakub to depression. In his letter, he wrote that he could not remember the events of one full year in jail when he was confined to bed. In the letter, Yakub also described his life before the March 12, 1993, blasts. It was an ordinary life: SSC with 70%, then college in the morning and work during the day, graduation, post-graduation, four years of studying to be a chartered accountant, and then establishing his own CA firm with a Hindu partner. “We were doing very well...I was very busy. The purpose of giving this brief about myself is to bring home just one single point: “WHERE WAS THE TIME TO HATE…” (upper case in the original).

In his letter, Yakub pointed out that nine of his 15-member family were NRIs settled in Dubai, and the rest would often visit them. On the day of the blasts, they were in Dubai, and got to know only later that one among them had masterminded them. After the blasts, the entire family left for Pakistan. “But we did not lost (sic) hopes of coming back to India and wipe out the stigma attached to our name,” wrote Yakub.

But the stigma would not be wiped out. “The prosecution is harping upon `Memon Family’ during their arguments as if there is a section in CrPC (as in Income Tax laws, while dealing with the HUF- the Hindu Undivided Family), wherein a family can be treated as a single unit. … The main reason for implicating us in the case is that we were in relation (to) and association of the prime accused. Now to be in relation to anyone is not a crime… We do not deny our relation and association with Ibrahim Memon …as a relative and nothing more.”

In 2007, having spent almost 13 years in jail, Yakub was sentenced to death by the TADA court. His brothers Essa and Yusuf, both seriously ill, and sister-in-law Rubeena were sentenced to life imprisonment. When his sentence was read out by the TADA court judge, Yakub cried out: “Forgive him lord, for he knows not what he does.'' Seven years later, the Supreme Court upheld the judgement.

But, as both Yakub’s appeal and his review petition, argued by lawyer Jaspal Singh, asserted, Yakub was convicted on the basis of the statement of one approver and the retracted confessions of co-accused. The prosecution did not produce any independent evidence to refute Yakub’s assertion that he knew nothing about the blasts.

With the mercy and review petitions rejected, Yakub is left with little hope: only perhaps a curative petition and another mercy petition. If Yakub is hanged, the message will be clear: if you have committed a crime and have been lucky enough to escape, good for you. If you are suspected of having committed a crime but want to return to India to try and clear your name, be prepared for the worst. Far better to spend your life in luxury, even if it is in a country that is hostile to yours. Not for you the choice of bringing up your children as Indians.

The second message that Yakub's hanging will send is that there is no place for reformation in our justice system. Among the arguments made by advocate Jaspal Singh in his review petition were his client’s record of good conduct in jail and no evidence by the prosecution that there existed no possibility of reformation. During his 21 years in jail, eight of them on death row, Yakub has obtained an MA in English from the Indira Gandhi National Open University. The authorities of the course denied him permission to attend the convocation, although it was held in Nagpur itself, where he has been lodged since 2007. The day the Supreme Court dismissed his review petition in April, Yakub got an MA from IGNOU in political science.

The third message will perhaps be the most ominous – that our criminal justice system recognises guilt by association. Dawood Ibrahim and Tiger Memon are beyond our reach. Should we rejoice that we have at least one Memon we can hang and lock the others up for life? Was Yakub right in writing: “According to the prosecution if one member does any wrong, entire family …can be punished and society can be shown that the justice is being done?” 

Finally, Yakub Memon’s hanging will inevitably draw our attention to the original sin in the chain of events that led to the March 12, 1993 blasts: the Mumbai riots that followed the demolition of the Babri Masjid. Neither those who demolished the Masjid nor those found guilty of the ensuing riots, in which 900 persons were killed, among them 575 Muslims and 275 Hindus, were punished, even though criminal offences were registered against the perpetrators. Two judicial commissions also indicted specific individuals for both crimes.

Among these individuals were 31 policemen, charged with extreme communal conduct against Muslims, including murder. None of them was punished. Nearly all the offenders in both events not only went free, some of them ruled the country as central ministers.

But those who took revenge for the riots, killing 257 people, were not let off. Their punishment ranged from two years to death. All death sentences, except Yakub’s, were six years later commuted to life.

When the TADA court held him guilty, Yakub cried out: “Woh sahi bolta tha, koi insaaf nahin milega, tum log hume terrorist banake chodoge.” What he said was right; you won’t get justice; you will make us into terrorists. He was referring to Tiger Memon’s words. In his letter, Yakub wrote: ‘’Section 20(8) and other draconian provision of this Act does not allow the Designated TADA court judge to look upon us with living and merciful eyes. On the contrary we are presumed to be guilty of TERRORISM.”

The letter that Yakub Memon wrote to the chief justice of India from Arthur Road Jail,five years after he surrendered to Indian authorities in July 1994.

Source: http://scroll.in/article/730324/hyderabad-sweepers-can-take-the-heat-but-not-the-insensitivity-of-others [last accessed 28.05.2015]

Supreme Court extends stay on Yakub Memon's execution

Mail Today Bureau  New Delhi, December 11, 2014 | UPDATED 09:53 IST

The Supreme Court on Wednesday extended the stay on the execution of Yakub Abdul Razak Memon, the lone death row convict in the 1993 Mumbai serial blasts case. The court also sought responses from the Maharashtra Special Task Force (MSTF) and the Central Bureau of Investigation (CBI) on Memon's plea seeking review of the death penalty awarded to him.

In an open court hearing, a three-judge bench, headed by Justice AR Dave, said the execution of Memon shall remain stayed during the pendency of his review petition against the imposition of death penalty. The court fixed the matter for further hearing on January 28, 2015.

The counsel appearing for Memon said that neither the trial court nor the apex court gave special reasons for sending him to gallows. "My (Memon's) entire conviction is based on retracted confessions of several co-accused in the case. The judgment under review does not talk about the fact or evidence that I took part in any terrorist activity," Memon's lawyer argued on behalf of him. The lawyer also alleged that Memon was convicted and then sentenced to death by a special TADA court even before the complete judgment was delivered, hence, his conviction was not valid.

Earlier, review petitions were decided in chambers but, later, the apex court had ruled that such pleas, if directed against the imposition of death penalty, would be heard in an open court. The apex court had, on September 26, sought responses from the Maharashtra government and others on Memon's plea that his review petition against the death penalty be heard in open court. A constitution bench of the apex court had, on June 2, held that years spent behind bars during prolonged judicial proceedings cannot be a ground for converting death sentence to life imprisonment and review plea of condemned prisoners must be given an open court hearing. Taking a cue from the constitution bench judgment, Memon had said in his plea that according to the verdict, his review plea should be heard in an open court.

Memon is the second death row convict, after Nithari rapist-cum-serial killer Surinder Koli, who approached the apex court seeking hearing of a review plea in an open court.

Source: http://indiatoday.intoday.in/story/yakub-memon-execution-supreme-court-cbi-1993-mumbai-serial-blasts-case/1/406239.html [last accessed 06.02.2015]