Executing selective justice

Left Hanging: Yakub Memon's sentencing reopens debate on capital punishment
Last Updated 01 August 2015, 18:40 IST
Never have the doors of the Supreme Court opened in the early hours but they did on July 30 (to decide a condemned prisoner's plea to stay execution). In the three cases that involved terrorism – that of the Rajiv Gandhi assassination, parliament attack, and now the Yakub Memon hanging in the Mumbai blast case - verdicts have varied. Did not Afzal Guru (Parliament attack) and Memon deserve their sentences to be commuted to life?

The July 30 hanging of 1993 Mumbai serial blasts convict Yakub Memon has spawned the debate over continuity of death penalty in a civilised society. Every criminal act has to be met with adequate punishment. This helps in maintaining people’s faith in the criminal justice system. Any deviation is fraught with the risk of citizens developing cynicism and alienation towards the system.

Every criminal case is treated on the basis of facts and circumstances. But in awarding capital punishment, the Supreme Court has tried to develop standardised mechanism to avoid unguided and untrammelled discretion. Way back in 1980, a Constitution bench, while dealing with the validity of Section 302 of the Indian Penal Code and sentencing procedure, saddled the courts with the task of ascertaining aggravating and mitigating factors.

 It also introduced the “rarest of rare” doctrine in death penalty cases, the application of which continued to face criticism. The Criminal Procedure Code also mandates for the courts to list out special reasons for sentencing a convict to death penalty.

Being at the cusp of all sorts of terror attacks, India, however, faced somewhat bigger challenges, forcing governments to continue with death penalty.

Such stance gets further exacerbated when one notes that Indira Gandhi was killed by her own bodyguards, who felt angered over her actions in Punjab, when she was the prime minister. Her successor and son Rajiv Gandhi was assassinated by an LTTE suicide bomber. Beant Singh also succumbed to one such attack when he was the chief minister of Punjab.

In such circumstances, it is left to the courts to adopt a balanced approach while handing out punishments. Interplay of political consideration, however, comes into picture when terror cases are looked from a prejudiced view. That's why, when it comes to awarding the capital punishment, we often see cries of injustice, though every criminal action is treated not as an offence against an individual but to the nation.

The classic example of how political compulsion played its role can beseen in the case of Rajiv Gandhi’s killers. Condemned prisoners V Sriharan alias Murugan, T Suthendraraja alias Santhan and A G Perarivalan alias Arivu were spared the gallows after the Supreme Court held that over 11 years delay in disposal of their mercy petitions made their sentence “inexecutable”.

The apex court relied upon its January 21, 2014, verdict in the Shatrughan Chauhan case where it was held that unreasonable delay in deciding mercy petitions qualified as the supervening circumstance, warranting commutation of death sentence into life imprisonment.

The three were awarded death penalty by a Terrorist and Disruptive Activities (Prevention) Act court in 1998. A year later, this was confirmed by the apex court in 1999. But this judgment ultimately got frustrated despite the President rejecting their mercy petition on August 12, 2011. The convicts approached the court citing questionable delay. Curiously, the then Union government, told the court that their file was lying in a Home Ministry official's drawer for five years.

Treating it as a violation of basic human rights, the court said when the President and the government made exorbitant delay in disposal of the mercy petition, the process of execution of death sentence becomes arbitrary, whimsical and capricious.

Interestingly, as the apex court commuted their sentence, the Tamil Nadu government acted swiftly to grant remission of their sentence, forcing the Union government again to approach the apex court. Now, a Constitution bench is examining the legal issue if the state government had power to grant remission in cases investigated by the Central agencies like the CBI.

Contrast this with the fate of Yakub Memon or the 2001 Parliament attack case convict Afzal Guru, one tends to get the feeling that the Supreme Court failed to maintain the same standards of equity in these cases. Afzal's appeal against death sentence was dismissed by the Supreme Court in 2005. His life was hanging in balance for eight years since his mercy plea was rejected by the President only in 2013.

Delay as reason

But Afzal was not fortunate unlike the petitioner in the 2014 Shatrughan Chauhan case, where the apex court held: “One of the supervening circumstances sanctioned for commutation of death sentence into life imprisonment is the undue, inordinate and unreasonable delay in execution of death sentence as it attributes to torture”.

Afzal was sentenced to death for being a co-conspirator of the Parliament attack. His was hanged in Tihar jail and without any intimation to his family members, which caused a lot of heartburn in Kashmir. Many still believe that the act reflected poorly on the justice administration system and the apex court failed to intervene unlike in the case of Rajiv Gandhi’s killers.

The Yakub Memon case, however, brought to the fore procedural lapses on the part of the Supreme Court. Though a three-judge bench disagreed with the view of Justice Kurian Joseph, the question raised by him as to why his curative petition was not put before the judges who handled his review petition would make many squirm over the treatment meted out to him.

Even if one leaves aside this aspect and the last-hour hearing granted to him, it is difficult to dispel the doubt over the March 21, 2013, judgment as to why his death penalty was not commuted while the same punishment to 10 others was commuted. An unpublished  article by former R&AW officer further aggravated the situation. Yakub, himself, felt that he was punished for the fault of his brother Tiger Memon. Notably, the Supreme Court division bench said: “If we say it in a metaphoric style, A-1 (Yakub) and all the absconding accused were the archers whereas rest of the appellants were the arrows in their hands.”

Eminent citizens, civil society members, retired judges and human rights lawyers tried to stave off the imminent but it all proved too late for Yakub. The “mantra” of aggravating and mitigating circumstances as propounded in the Bachan Singh vs State of Punjab case needs to be reviewed, the Supreme Court advocated in Sangeet and another Vs State of Haryana case (2012), while saying that “unfortunately” the sentencing process in capital offences has become judge-centric rather than a principled task.

including IPC, Arms Act, Karnataka Control of Organised Crime Act 2000, The Bombay Prohibition (Gujarat Amendment) Act, 2009)

including waging war against country, abetment of mutiny, murder, intentionally fabricating evidence resulting execution of some one

including causing, joining and not informing superiors of a mutiny and offence in relation to the enemy

No executions here since independence

Andaman and Nicobar Islands; Arunachal Pradesh; Chandigarh; Chhattisgarh; Dadar and Nagar Haveli; Daman and Diu;
Gujarat; Himachal Pradesh; Jharkhand; Lakshadweep;
Manipur; Meghalaya; Nagaland; Mizoram; Puducherry;
Sikkim; Tripura; and Uttarakhand


Sep 9, 1947Raghuraj Singh (27); Jabalpur Central Jail, MP
Dec 11, 1947Rahul (20);Jabalpur Central Jail; MP
Nov 15, 1947Shivanandan (40)Raipur Central Jail*; Chhattisgarh
Dec 30, 1947Mahantappa Gangappa (30)Belgaum Central Jail; Karnataka
Dec 30, 1947Kachedilal (28)Jabalpur Central Jail; MP


“Death sentence has a certain class complexion or class bias in as much as it is largely the poor and the downtrodden who are the victims of this extreme penalty. We would hardly find a rich or affluent person going to the gallows”. 
P N Bhagwati, former Chief Justice of India


There is no evidence that death penalty serves as a deterrent: to the contrary, in fact. All it does is exact retribution: unworthy of a Govt. We must fight against terrorism with all the means at our command. But cold-blooded execution has never prevented a terror attack anywhere. I am not commenting on the merits of a specific case: that is for the Supreme Court to decide. Problem is death penalty in principle and practice.
Congress MP
Shashi Tharoor on Twitter

The death penalty is not just a remedy available at the disposal of the law, but a human rights
issue, beyond the pale of law.
For the largest democracy, the death penalty is an anomaly.
It needs correction; Many that live do deserve death. And some that die deserved life. One must not be too eager to deal out death in judgement.
Varun Gandhi in a magazine article

(Published 01 August 2015, 18:40 IST)

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