Yakub Memon and Judicial Caprice

Opinion: The Supreme Court must rectify its fatal transgressions.

• Does Yakub Memon deserve death penalty?
• Yakub’s conviction and sentence stand on shaky legal ground.
• TADA and the Supreme Court relied upon the statements of the accused and condemned Yakub Memon as one of the masterminds of the conspiracy.
• On July 21, the court dismissed Yakub Memon’s curative petition, thereby clearing the legal decks for his execution.

Does Yakub deserve death?

Raman’s ‘disclosure’ has spawned a raft of articles and opinion pieces, harping on the fact that Yakub’s act- of helping the agencies nail Pakistan’s involvement, and as proof of his commitment to India and justice, are essentially verbal emulsions. Because, by asking for a concessional display of clemency, they elide the real question- did Yakub, according to the law and Supreme Court’s jurisprudence, deserve the death penalty in the fist place?

Do note- Raman is in no doubt about Yakub’s culpability, and that he deserves nothing less than death if circumstances were different. This, even if inadvertent, amounts to covering up for the judiciary, especially the Supreme Court, which didn’t find anything wrong in a death sentence being imposed on a ‘conspirator’. Especially because both Yakub’s conviction and sentence stand on shaky legal ground, and in stark conflict with the golden rule of ‘rarest of rare’ cases as laid down by the Supreme Court.

Majoritarian appeasement?

In 1980, a Constitution Bench of the Supreme Court laid down that the death penalty can be given only in the rarest of rare cases- where the convict shows no remorse, and the crime is of such proportion that it would shock the conscience of society. That this standard is susceptible to fatal caprice was proved by the court’s own judgements in 2009 and 2012. In the former, the court admitted that judicial predilections and proclivities have resulted in seven innocents’ lives being snuffed out. The court expressed regret, but didn’t outlaw the death penalty for the simple reason that the arbitrariness inherent in its application would make it both morally and legally odious. In the latter, the court reiterated it’s anxiety, but shied away from taking a resolute stand.

How did the court act in Yakub’s case? Did it really adhere to unimpeachable standards, or did it willingly succumb to majoritarian aspirations and the frustration at the government’s failure to catch the real perpetrators?

Journalist Madhu Trehan’s 1994 interview with Yakub provides some deep insights into the judges’ minds. Doubling up as an interrogator from the CBI, Trehan accuses Yakub of being a willing beneficiary of Pakistan’s largesse and dismissing his claims of voluntarily wanting to come back to India, says that his ‘story’ is ‘highly improbable’. Questioning his ‘loyalty to the motherland’, she says his ‘naivete’- that the courts would believe him and grant him a reprieve- was ‘touching’. Drilling in the last nail of guilt by mere association, she, despite his protestations, says scornfully says that Tiger Memon’s hospitality and protection were not ‘forced down his gullet’.

Disconcerting that it is, both the TADA and the Supreme Court took a similar,if not the same, line of reasoning. Both relied upon the confessional statements of the accused ( all but one of which was retracted) and went on to label, and condemn him as one of the masterminds of the dastardly conspiracy. Both the courts went along with the prosecution’s claims, perhaps overwhelmed by the magnitude of casualties in India’ s first ever cross-border terrorist attack. If put to a rigorous legal and constitutional analysis, it is doubtful if the judgements would survive a challenge, unless of course, one is beguiled by the apex court’s morbid deference to the “collective conscience of society”.

Nationalist posturing and judical scrutiny

So, from where should the Supreme Court start? From quashing Yakub’s death warrant, which the TADA court issued in illegal haste? Or, from stepping back and critically reviewing it’s own stand that he was guilty?

Yakub’s case is only incidental to the larger and more pressing case which begs an answer- would the Supreme Court confront itself over its studied, and if one may say, deliberate ‘inability’ to devise a rational, predictive system of awarding the death penalty, shorn of all possible biases and prejudices? Would it be able to muster the courage and conscience to limit “rarest of rare” to cases absolutely free from any “political “ considerations?

If it cannot, why should it have the prerogative and authority to condemn people to the gallows, even if their guilt is determined more by emotions and tenebrious legal logic than by immutable constitutional tenets ?

On 9 April 2015, the court dismissed review petition with a terse, single paragraph- that it didn’t find any grounds to interfere with its earlier ruling. And, on 21 July, in an astoundingly perfunctory manner, dismissed his curative petition, thereby clearing the legal decks for his execution.

Just in case the court decides to embrace political expediency over judicial virtues, it could still glance at historian Isaiah Berlin’s warning to the Israel Parliament regarding Nazi ringleader Adolf Eichmann’s trial. In 1960, Berlin stated that the trial served no purpose save political point-scoring, and that such acts could be the preserve of “individual Monte Christos, not communities”.

Would the Supreme Court, obsessively punctilious that it is about its reputation of impartiality, surrender to the governmental machinations of the death penalty?