Abolish Death Penalty India: Yakub Memon Death Sentence

Friday, February 6, 2015

Yakub Memon Death Sentence – Why the delay ?

Mrityunjay Kumar

Dec 12, 2014

In a temporary relief to 1993 Mumbai blast convict Yakub Memon, the Supreme Court has stayed the execution of his death penalty. This decision comes on the review plea filed by the death row convict in the Apex Court. Memon is sibling of the absconding mastermind of the blasts Tiger Memon and has been in custody for almost two decades.

While staying his hanging, a three judges bench headed by Justice AR Dave and comprising Justices J Chelameswar and Kurian Joseph posted the matter for next 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. Whatever be the decision of the court on January 28, but 1993 blast and all subsequent incidents of this kind were an attack on the pride of the nation and those evolved in perpetrating such a heinous crime must get severest punishment according to the law of the land.

Yakub’s brother Ibrahim Mushtaq Abdul Razak Nadim Memon, better known as Tiger Memon was a close associate of world’s one of the dreadest terrorist Dawood Ibrahim, both of them are living in Pakistan with changed identity and have been involved not only in anti-India activities but also in illegal trafficking of drugs, contract killings and terror activities. Tiger’s men including Yakub connived with Dawood Ibrahim to execute 1993 Mumbai blast, the biggest terror strike on Indian soil that time. Reports suggest that 257 people lost their life in the blast.

Yakub, a chartered accountant, may claim his innocence and his ignorance about his brother Tiger’s activities but the fact could not be overlooked that after hearing the case for more than a decade and going through many evidences, a TADA court in 2007 convicted him to death after finding him guilty of being involved in criminal conspiracy and managing financial transactions meant for the blasts. Later in March 2013, according to an Indian Express report, the SC had confirmed the death sentence awarded to Memon, holding him guilty of being the “driving spirit” behind the blasts that killed 257 people. The court had said that Memon’s “commanding position and the crime of utmost gravity” warranted capital punishment. Memon then moved a clemency petition before the President but the plea was turned down, given the seriousness of his crime.

Yakub’s crime is of very serious kind. Despite being the most educated member of his family, he agreed to assist Tiger to wage war against his mother land. Dawood and Tiger used his acumen in accounting to get funds for the blasts to kill innocent residents of Mumbai. The larger issue though here has to do with inordinate delays in carrying out Death Sentences in India and the message it sends. Especially in Terror cases, for the Death Penalty to be an effective instrument at the disposal of the State to deter potential terrorists, it needs to be executed swiftly and purporsefully with integrity and credibility to the process. The inordinate delay in carrying out Yakub Memon’s sentence sends the wrong message.

Source: http://www.niticentral.com/2014/12/12/yakub-memon-death-sentence-delay-267453.html [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

Yakub Memon Death Sentence – Why the delay ?

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