‘On a Day of Dark Disgrace’ Yakub Dropped ‘Into an Empty Place’

From the apex court to the President, everyone’s action was a domino effect of hasty decisions in Yakub’s case.

Inexplicable Haste

• After the dismissal of Yakub’s plea the Supreme Court now stands accused of a selective, even a cynical approach
• Decision by the court also means that procedural justice means little if the accused is convicted as the “mastermind” of a terror attack
• Not only the court, even Maharashtra’s governor seems to have little regard for Article 161 of the Constitution

Nothing can condone the grave infractions of the Judiciary and Executive.

The Supreme Court never ceases to remind us of its invaluable contribution to the cause of justice. There have been, and shall be, innumerable instances of the court covering itself in glory by making lofty proclamations about its untiring perseverance to ensure “complete justice” (or whatever that means to the judicial imagination). According to its own jurisprudence, both procedural and substantive aspects of a case are essential components of this cherished standard.

Today, after a bench headed by Justice Dipak Misra rejected Yakub Memon’s challenge to the dismissal of his curative petition, the court stands convicted of what it’s critics and critical observers have accused it of- a selective, even cynical approach to justice, at best, and at worst, rank hypocrisy in applying its own principles.

As I write this, the Supreme Court’s Order declining to intervene in Yakub’s case is yet to be made made available to the public, so we don’t know what were its reasons. But one thing is clear- its determined refusal establishes one thing- that all the talks about procedural justice means little, if the condemned accused stands convicted as the “mastermind” of a terror attack (despite evidence which is thin and highly contested) and branded as a terrorist and mass-murderer in the media, by the people.

This was starkly evident when Justice Dave brusquely dismissed all his contentions with ‘none of these reasons appeal of me because they are irrelevant’ and threw in a warning to his lawyers- “you know who you are defending”.

Death by Procedure

When someone’s life is to be snuffed out, complying with procedural requirements is the least the state and judiciary can do, because even the future-dead deserve a modicum of dignity on their way to the gallows.

Therefore, it was incumbent upon the court to grant a re-hearing of Yakub’s curative petition, because the very composition of the bench which dismissed his petition on 21 July was against the law. Death penalty cases, as it has been established by now, are contingent upon judges’ predilections, preferences, and even nationalist and patriotic predilections. But the court’s blatant disregard of this grave anomaly, which has triggered a Domino-reaction of hasty actions, rankles and will continue to do so even after Yakub is made to rest six-feet under.

It could well be the case that the court was swayed by the Attorney General’s impassioned pleas for the “inevitable”. This is reflected, in no small measure by Justice Dipak Misra’s haste in pronouncing the verdict today itself. What prevented him from at least pondering upon, with appropriate judicial patience, what Justice Joseph held yesterday- that every bit of procedural compliance is a non-negotiable requirement?

Abuse of Discretion

It isn’t only the court. Maharashtra Governor C. Vidyasagar Rao, who as if on cue, rejected Yakub’s mercy petition within barely a couple of hours after the court announced its decision, seems to have little regard for Article 161 of the Constitution. This provision casts upon him a duty to exercise his discretion in a fair and independent manner, not act as rubber stamp of either the Maharashtra government or the courts. But his decision, given in obscene haste, betrays his deference to the powers-that-be and all their political machinations.

Pranab Mukherjee succumbed to pressure from the government to reject Yakub’s clemency petition, an action which inexorably pushed the condemned man to the arms of his executioner. But it shouldn’t stop us from asking aloud -- Yakub would hang for criminal conspiracy, but is the complicity of constitutional authorities devoid of culpability?

(The writer teaches media law and policy in Mumbai and Pune. On twitter: @SauravDatta29)