Yakub Memon
Yakub Memon
Yakub Memon

Pranab Mukherjee
President of India
Rashtrapati Bhavan,
New Delhi
Subject:? Stay Against Imminent Execution of Yakub Abdul Razak Memon

Your Excellency,

I am William Nicholas Gomes, Human rights defender and Freelance journalist.

I would like to draw your attention to the ?case of Mr. Yakub Abdul Razak Memon, who could ?be executed as per the execution warrant issued by the TADA Court.

I am urging ?You to stay the imminent execution so that the substantive and fresh grounds raised herein can be considered on merits.

A. Preliminary Grounds


1. An International Commitment to abolish death penalty ? We the signatories of this mercy petition humbly make the statement that in India death penalty cannot be imposed till such time Parliament of India decides not to abolish death penalty and the reason for the same are as under:
The universal declaration of Human Rights adopted by the General Assembly on 10.12.1948 defined certain human rights and fundamental freedoms which need to be protected. Among the subsequent human right documents, the most important are the two covenants adopted by the General Assembly in 1966: The Covenant on Civil and Political Rights and its Optional Protocol and the Covenant on Economic, Social and Cultural Rights. India became a party to both these covenant by ratifying them on 27.3.1979. There are two optional protocols to the covenant, the Second Protocol aims at the abolition of death penalty.

The Supreme Court in Bachan Singh v. State of Punjab?in 1980 held that the death penalty should be imposed only in the ?rarest of rare? cases after weighing both the aggravating and mitigating circumstances of a particular case. In July 2012, 14 retired Supreme Court and High Court judges asked Mukherjee to commute the death sentences of 13 inmates that were erroneously upheld by the Supreme Court over the previous nine years. This followed the court?s admission that some of these death sentences were rendered per incuriam?? ignoring a contradictory statute or binding judgment. In November 2012, the Supreme Court ruled that the ?rarest of rare? standard for capital punishment had not been applied uniformly over the years and the norms on the death penalty needed ?a fresh look.?
Article VI of Part-III of the covenant on civil and political rights lays down as under:
1. Every human being has the inherent right to life. This right shall be protected by law. No-one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crime.
3. ??????.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence amnesty or commutation of death may be granted in all cases.
The President of India under Article 72 of the Constitution of India has the power to grant pardon and to suspend, remit or commute sentence in certain cases. It is in this way the constitution of India permits right of appeal. Sub-clause of Article 6 of Part-III of the Covenant as referred above provides that commutation of sentence of death may be granted in all cases. In the circumstance, we will have to understand as to why ?may? has been used for commutation of the sentence of death to be granted by the President.

The Hon?ble Supreme Court of India in Deewan Singh Vs. Rajendra Prasad Ardevi (2007) 10 SC 528 while interpretating ?may? where powers is conferred upon a public authority coupled with direction, the word ?may? which connotes direction should be constitute to mean a command. In India this power of pardon is to be exercised by the President and therefore under no circumstances for empowering the President the word ?shall? could have been used in the covenant but it means a command i.e. commutation of sentence of death must be granted in all cases by President, till such time Parliament of India decides that it will continue the penalty of death sentence. After signing of covenant, the Parliament of India has not considered any amendment in the Indian Penal Code for abolition of death sentence.
The second optional protocol to the International covenant on civil and political rights reads as under:
?The States Parties to the present Protocol,
Believing that abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights,
Recalling Article 3 of the Universal Declaration of Human Rights, adopted on 10 December 1948, and Article 6 of the International Covenant on Civil and Political Rights, adopted on 16 December 1966,
Noting that Article 6 of the International Covenant on Civil and Political Rights refers to abolition of the death penalty in terms that strongly suggest that abolition is desirable,

Convinced that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life,?Desirous to undertake hereby an international commitment to abolish the death penalty,
Have agreed as follows:
Article 1:
1. No one within the jurisdiction of a State Party to the present Protocol shall be executed.
2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.
Article 2:
1. No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.?

As regards covenant we may submit that a covenant is a treaty and it lays down a notable step forward in the protection of human rights within the framework of the United Nations and constitutes the basic provisions of International Bill of Rights. The two covenants also demonstrate the way in which the United Nations is overcoming its earlier hesitations about the enforcement of human rights obligations. It is almost an accepted provision of law that rules of customary International Law which are not contrary to Municipal Law shall be deemed to be incorporated in the domestic law.
The plea of enforceability of various International covenant is now no longer a matter of debate but should be considered to be firmly established as a part of international law which the domestic courts are duty bound to give effect to.

2. Present Petition Meets Procedural Requirements

This Mercy Petition satisfies the legal requirements applicable to a fresh mercy petition as per G. KrishtaGoud v. State of A.P., (1976) 1 SCC 157para10 and clause VII-(A) of the Procedure Regarding Petitions for Mercy in Death Sentence Cases, Ministry of Home Affairs, Government of India.
3. Death Warrant fixing the date of Execution is Illegal

Yakub Memon was not given advance notice of the death warrant hearing and as a result of which he and his lawyers could not participate and contest the issuance of the death warrant. Lack of hearing makes the present death warrant void in light of the Supreme Court decision in Shabnam v. Union of India &Ors, Writ Petition (Criminal) No. 88 of 2015 (decided on May 27, 2015).

B. Fresh Grounds on Merits

Following are some very disturbing aspects of this case which make the award of death sentence of Yakub Memon as grossly unfair, arbitrary and excessive.
1. Long Duration of Trial and Incarceration Suffered Till Date

Yakub Memon has served more than 20 years in prison since his arrest. His trial took 14 years to complete. While the Hon’ble Supreme Court used this long period of incarceration as a mitigating circumstance to commute the death sentences of the other 10 co-accused persons, it applied a different yardstick to Yakub. The Hon’ble Supreme Court has repeatedly held that lengthy incarceration during pendency of appeal in death cases is a significant mitigating circumstance which ought to be considered in determination of sentence. In the interests of justice we request you to give due importance to this. The government to that extent is not bound by the conclusions arrived at by the Supreme Court (See Shanker v. State of U.P. (1975) 3 SCC 851; Vivian Rodrick v. The State of West Bengal (1971) 1 SCC 468);Kehar Singh v. Union of India(1989) 1 SCC 204para 10.
2. Yakub Memon is Mentally Unfit for Execution

Yakub Memon has been suffering from schizophrenia for the last 20 years which makes him unfit for execution. His mental condition has been certified by jail doctors. Schizophrenia as a mental illness has been held by the Supreme Court (Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1 para 86-87) to render a convict unfit for execution. Your Excellency is required to consider the mental health of a convict before deciding his mercy petition, and can summon his medical records from the prison from the time of his arrest.
3. Role in the 1993 Bomb Blasts Conspiracy

Tiger Memon and Dawood Ibrahim as the Main Conspirators
As per the case of the prosecution, the 1993 bomb blasts were orchestrated by Tiger Memon and Dawood Ibrahim to seek revenge for the demolition of Babri Masjid in Ayodhya(YakubMemon v. State of Maharashtra, (2013) 13 SCC 1 para 148, 1253). Both Tiger Memon and Dawood Ibrahim have been absconding and Yakub, brother of Tiger Memon, who was not the main actor in the conspiracy is being executed.
Commuted Co-accused played a larger role in the Conspiracy than Yakub Memon: Prejudiced on Account of being Tiger Memon’s Brother
The TADA Court convicted 100 persons and awarded death penalty to 11 persons. In appeal, the Supreme Court commuted the death sentences of all the convicts except Yakub Memon. In comparison to Yakub Memon, the 10 co-accused persons whose death sentences were commuted planted the bombs themselves and played a much more critical and direct role in the actual execution of the bomb blast conspiracy. Several of whom even travelled to Pakistan for arms training. This shows Yakub Abdul Razak Memon who is facing an imminent execution only on account of being Tiger Memon’s younger brother.
Witness in the case
Unlike the main accused, Yakub Memon surrendered before the authorities, a fact which has been confirmed on July 24 by the then officer in charge of the entire operation, Shri B.Raman. Yakub Memon is the person who has provided information about Pakistan involvement. His execution will weaken the case against the involvement of the Pakistan agencies as there are no other witnesses available.
4. Death Sentence of Convicts in other Terror Cases Commuted

It is also worthwhile to note that death sentences imposed on the aides of Veerappan (convicted and sentenced to death under TADA), Rajiv Gandhi killers and Devender Pal Singh Bhullar have been commuted recently by the Supreme Court. While the mercy petitions of Verappan’s aides, Rajiv Gandhi’s three killers and Devender Pal Singh Bhullar were decided belatedly by the President, thereby giving them the claim of delay jurisprudence, the Home Ministry has moved swiftly to reject Yakub Abdul Razak Memon’s mercy’s petition. It seems that subjective factors are the basis of decisions which lead to arbitrary actions.
5. Death Sentence awarded under TADA which was repealed for being Unfair and Discriminatory

Yakub Memon has been tried and sentenced to death under TADA, a special law which was repealed by the Parliament on account of it having been used to target the minorities. The Supreme Court in Vijaykumar Baldev Mishra v. State of Maharashtra, (2007) 12 SCC 687para 30 also doubted the legality of prosecutions pursued after the repeal of TADA. Given the highly compromised rule of law credentials of TADA, executing Yakub Memon will perpetuate the dark legacy of this law.
Final Plea

Finally, I want to warn you that??the people who are ?claiming by hanging Yakub Memon ?they will bring justice for the 1993 Mumbai blasts are nothing but trying to set another precedent of ?judicial killing of someone?innocent of the crime he?accused and wrongly convicted . But the reality is the??suspected masterminds of the blasts have still not been located, arrested and brought to book. ?


I most humbly request your Excellency to consider the case of Yakub Abdul Razak Memon and spare him from the noose of the death for a crime that was master-minded by someone else to communally divide the country. Grant of mercy in this case will send out a message that while this country will not tolerate acts of terrorism, as a nation we are committed to equal application of the power of mercy and values of?forgiveness, and justice. Blood letting and human sacrifice will not make this country a safer place; it will, however, degrade us all.

Yours Sincerely,

William Nicholas Gomes

Human Rights Defender & ?Freelance Journalist

Twitter @wnicholasgomes

Email: [email protected]

www.facebook.com/williamnicholasgomes

?

LEAVE A REPLY

Please enter your comment!
Please enter your name here

This site uses Akismet to reduce spam. Learn how your comment data is processed.