Laws Swinging Cradle to Grave : Gallows to Pillows

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The Year 2015 has been noted for an addition to its stereotype judgments; embarked and enshrined as ‘crude decision of the apex court’,for deciding the fate of a terrorist-cum-human for gallows. It has been decided after a prolonged wait of 20 years that 257 victims of 12th march 1993 Bombay Bomb Blast~Black Friday~, have perceived justice and the same appeals to them as incomplete, turning out into a National catharsis.

With myriads of expectations and eyes lurking for justice, the cause of justice innocuously turned into rage of revenge and thirst of avenging the victims of bomb blast. The onus rested on the incumbency of 20 years of governance and the question of justice was brought up, at the beginning of each term, but with the glimpse, government could have taken a positive step towardsignominious efforts of predecessors; the demos prudential were left with a hope gripped in hands and painted in shades of saffron.

The current scenario contemplates eyes of the common that the unprecedented issue is finished within a span of 2 weeks and still there are masses whostill believes that the justice is not served and questioned the technicality of law. The heartfelt condolences through empathy towards the terrorist-cum-human screamed louder than the shredded souls and bombed bodies. The questions raised by the rudimentary section of society left the “ignited Minds”to hover into the correctness of the actual issue at hand and left the righteousness of illicit actions to decide the fate of ‘’he who to be hanged’’.

The 21st century has also stepped as a growth of Media and evolution of chivalrous mindset of scrupulous people, now they have actually learnt to raise a question and curb the dominating HAND. But eventually with time the power to raise question was capriciously confused with raising an issue rhetorically, they only wanted solution as the one they had decided while raising the issue. Thus this ideology and methodology turned the principle of ‘’Due Diligence’’ futile and connoisseur of law was vehemently questioned. The renaissance of conscious awakening, filtered people with a power in form of a right to fight for justice, rights and welfare, but consequently the same power left surreptitiously, a weapon for powerful people to evade law and thwart justice.

Cradle of two variant Muslims:

30th July 2015, lifted the cradle to grave of two Muslims; one was hailed a National Hero and other one died dignifying as terrorist-cum-human. Both corpses were wrapped for burial according to muslim rites in an unstitched cloth, one being tri-color and the other in color of green.

Dr. APJ Abdul Kalam Azad, the man behind the evolution of Indian Ballistic Missile and Nuclear power, was propped up by the Indian system and political-military complex, no matter how illustrative his achievements were in field of science. The point being, once the President of India had exorbitant contribution towards the glory of this Nation and propagating the image of a true Indian rather than a Good Muslim. The maestro always envisioned India as a home for “Ignited Minds”, whichever religion they belong to. For once, he quoted Socrates ,’’ the glory of nation is attained not by disproportionate one class of society but by great happiness of all society’’. Where as the maestro at several instances quoted a south Indian poet saint Thiruvalluver and have strictly followed his views as,’ the glory of nation resides in freedom from diseases; high earning capacity; high productivity; harmonious living and strong defense’’. Maestro had always believed in exponential spread of knowledge and education through frugal and easy-to-digest modes.

It has been envisaged in the movie “I Am Kalam “, telling story of a boy making his living from working at a tea stall amidst the scorch of Rajasthan desert and who keeps his name idealizing the then president APJ Abdulkalam Azad. The boy idolizes kalam’s preaching and kindles the spark of Maestro’s ideologies and teachings. The plot of the movie examines Kalam as industrious, stalwart, eclectic, skilled and scrupulous Human Being. The maestro has quoted his journey of life at several lectures he delivered and all of them golden threads of inspiration Maestro’s published books and articles didn’t make it across the world but also broke records of sale and moreover his pedagogical skills in form of easy to digest sermons, have always mesmerized and inspired his audience. Whereof, his ideas of righteousness have also been projected in verses of his quote:

“Where there is righteousness in the heart

there is beauty in the character.

Where there is beauty in character,

There is harmony in the home.

Where there is harmony in the home,

There is an order in the nation.

Where there is order in the nation,

There is peace in the world.”

 

The question arose when his soul departed for heaven, was, does he resemble the image what defined as GOOD MUSLIM?[after 9/11 the then president George Bush categorized the difference between Good Muslim and Bad Muslim in his book ]. According to me, I never possessed a slight doubt in accepting that Mr. Kalam is a true Indian Hero, he has always been patronized by both flanks, as the right and left and have protrude him as unanimous nominal head of this diverse Nation.

It had been recently projected and proposed after Dr. Kalam’s demise, to change the name of Aurangzeb Road at Delhi to Abdul Kalam Road, for that Aurangzeb reflected an aura of a staunch abysmal Muslim who tyrannically supported anarchy. Eventually ‘’to rectify the mistakes made in History’’ as quipped by several politicians, they scrubbed the cruel emperor’s name off the street of Delhi. Whereas the prominent Historians also wooed the view of bringing Aurangzeb to justice by christening it in name of prince DARA SHIKOH, the true heir of Emperor Shahjahan, who was assassinated by Aurangzeb in lust of throne. Dara Shikoh, like Dr. Kalam, was perfect image of true and good muslim, who brought sustainable development, peace and balance amongst the clans of the anachronism. The true heir also translated 50 upanishads from Sanskrit to Persian and always honored exponential growth of knowledge and culminating heterodox tradition. This doesn’t condemn the fact that Kalam was less Muslim , as alleged by few anti-national persons, I take umbrage to their nuance of view, as the maestro need not prove himself to anyone and its self-evident through his valor and achievements which has ignited minds of numerous persons throughout the globe.

YakubMemon, who has been portrayed as terrorist-cum-human by the media and people sympathizing towards him, defies the novelties of Abdul Kalam Azad. A chartered account by profession turned into one of the conspirator and traitor behind the mayhem of 1993 Bombay Bomb Blast, was put to gallows on 30th July. The question which he must have faced and the answers rendered, while crossing the river Styx, decides the justification of his punishment. Does he feel sorry for his actions and does he want to repent? Does he want to expiate for lives he has left for suffering? Does he still take pride being tiger Memon’s brother?

The questions will hang in air as the non-stop coverage of Yakub Memon’s oscillation to gallows has made him a martyr and national face of each and every media. Had, he been left for imprisonment for life, he must have been forgotten in few years like the other incarcerated culprits. His death has provided a reason for anti-India elements of the society to treat him as martyr and one more reason to promote Jihad. I ponder thinking of his punishment that has the history repeated itself and is it the same mistake that Britishers made in 1945 during the INA trial of Gurbaksh Singh Dhillon, Prem Sehgal and Shahnawaz Khan and executed them openly at Red fort. The open execution, united the aggression instead of deterring the revolt. Keeping them in life imprisonment makes the cause less attractive and increases attrition. Propaganda for jailed heroes is less potent.

There is no doubt in accepting that the execution has kindled a spark of oppression in the minds of anti-India forces which might be inimical to interest of the nation. The mainstream discourse has rarely touched upon the Bombay riots that preceded the blast that were themselves triggered by the demolition of Babri Masjid. The stereotype Muslim, Yakub Memon, turned into a terrorist allegedly to support and assist his Brother Tiger Memon and was unaware of all the planning and conspiracy of the mayhem of 1993. It has also been alleged in defense that Yakub never attended any conspiracy plot meetings as derived from the statements of other accused and has paid price of absconding Brother Tiger Memon. According to the judgment, out of 13 accused inflicted death penalty, sentences of 10 accused were commuted to life imprisonment and it was only Yakub, who was left to face the fate by gallows. Moreover, it has also been projected the judgment of the death sentence does not reveal any substantial amount of admissible evidence to inflict death sentence, except the confession of co-accused. The question remains to be dealt is, does the actions of YakubMemon fall under ‘rarest to rare’dictum, precedent devised under the execution of Bachan Singh’s Case in 1980,which has been rendered irrevocably thereafter and has often been referred to as ‘Lethal Lottery’.

Rarest to rare Scenario

In the well recognized case of Purushottam Borate V/s. State of Maharastra the chief Justice of India has reiterated as ,” ‘Rarest of the rare’ case exists when an accused would be menace or, threat to & incompatible with harmony in the society. In a case where the accused does not act on provocation or on the spur of the moment, but meticulously executes a deliberate, cold-blooded & pre planned crime, giving scant regard to the consequences of the same, the precarious balance in the sentencing policy evolved by Indian criminal jurisprudence, would tilt heavily towards the death sentence.” Thus it is axiomatic that Yakub’s trial falls under the principle of Rarest of rare principle, morally and technically based on the precedents of the Hon’ble apex court. The Hon’ble Chief Justice also reiterated the case of Macchi Singh’s Case (1983) as – “ extreme punishment of death is observed to be justified as necessary in cases where the collective conscience of society is so shocked that it will expect the holders of judicial powers to inflict death penalty irrespective of their personal opinion.” This is pertinent to note that emphasize was given on ‘revulsion in society’ and ‘shock & repulses to collective conscience of the society’. Such prospective of the court provide us a skeptical insight leaving us pondering, whether Yakub’s case fit within the demarcations devised in the landmark judgment and has there been any scant of injustice rendered to him. To discuss the procedure imposed by law, the court of law has often based its findings over the guidelines prescribed in people’s union for democratic rights [2015 SCC Online All 143], where Right to dignity of condemned prisoners has been elaborated and inscribed alongwith the procedure to be followed after condemning a death sentence in consonance with article 21 of the constitution of India as:

  • The condemn prisoner has right to be heard and proper hearing amounting to natural justice under section413 and 414 of Criminal procedure code.
  • The condemned prisoner must be provided with the exact date and time of the execution and not a period of the execution.
  • There must be a reasonable time period provided to the condemned prisoner, between execution of death warrant and issuance of warrant.
  • Free legal aid if in case he is eligible to engage a lawyer and he must be handed over the judgment copy immediately.

As per the question arises with regards to (#3) “ Reasonable time” between execution of death warrant and issuance of death warrant, in my opinion yakub was given appropriate time to suffice the due process of law. As his death warrant was issued in 2013 and a mercy plea was forwarded by his brother to the President of Indian under Article 72 and the same stood rejected in the year 2015. Whereof, Yakub again referred a mercy plea in his name and the same received the similar fate of rejection within a span of one week. It is of paramount importance to note that yakub’s face was behind cold curtains for all the years since he got arrested and media alongwith his sympathizer never throttled for justice, unless mercy plea filed by him got rejected in a span of one week and blamed the act as prerogative political ploy. The media trial provided to a terrorist, was it justified, without questioning the technicality of law?

Impeccable powers under article 72 and 161:

The Indian Constitution empowers the president and the governors of state, the head of state, to remit the convictions of condemned prisoners and may acquit them as a free man under Article 72 and 161 respectively. Power to pardon, often elucidates as an act of grace and mercy and has also been termed in various landmark judgments including Shabnam V/s. Union Of India;where the question, whether Article 72 and 161 suffice the elaboration “within procedure established by law”, was discussed and enlarged at superficial depth and it was held that, the powers under Article 72 and 161 are independent of Judiciary and remission of sentences is an act of grace in appropriate case i.e distinct, absolute and unfettered in nature. Therefore powers under Article 72 and 161 falls within the ambit of ‘’procedure established by law’’ as and therein produced under 35th report of law commission on death penalty in 1967, detailing only the peripheral issues.

Connecting with Yakub’s execution and pre-gallows plot there has always been a debate as to whether the power of the executive to pardon should be subjected to judicial review or not. Supreme Court in a catena of cases has laid down the law relating to judicial review of pardoning power.

In Maru Ram v Union of India  , the Constitutional Bench of Supreme Court held that the power under Article 72 is to be exercised on the advice of the Central Government and not by the President on his own, and that the advice of the Government binds the head of the Republic.

In Dhananjoy Chatterjee alias Dhana v State of West Bengal , the Supreme Court reiterated its earlier stand in Maru Ram’s case and said:

“The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the state.”

Whereas the apex court for the first time in its illuminating history of justice opened its door at 4 A.M in the morning, 3 hrs prior to the execution. Maintainability of the review petition still collide in common parlance with idea of connoisseur of law and justice. Elucidating pros and cons of reviewing the absolute powers enunciated under Article 72 and 161, The Supreme Court in Ranga Billa case  was once again called upon to decide the nature and ambit of the pardoning power of the President of India under Article 72 of the Constitution. In this case, death sentence of one of the appellants was confirmed by the Supreme Court. His mercy petition was also rejected by the President. Then, the appellant filed a writ petition in the Supreme Court challenging the discretion of the President to grant pardon on the ground that no reasons were given for rejection of his mercy petition. The court dismissed the petition and observed that the term “pardon” itself signifies that it is entirely a discretionary remedy and grant or rejection of it need not to be reasoned.

The ruling of the cases raises a question over the basic structure of the constitution, for it aims at providing an independent Legislative, Executive and Judiciary. Constitution has enshrined the powers to the Executive head of nation and state to remit, commute and revert the sentences of condemned prisoners as per the conditions mentioned therein, this evolves as one face of the coin, and also provides them absolute executive power for their act under provisions of the article. Flipping the coin, the other side, reveals the intervention of judiciary with the decision of executive head. Putting all averments in a kaleidoscope, it projects as, if the power of mercy and pardoning has been installed as absolute power, does it make justifiable for judiciary to review the same?

Trying to resolve the parallax, Supreme Court once again in Kehar Singh v Union of India and in case of Swaran Singh Vs. State of UP, elucidated a contradictory view. In the prior, reiteratedits earlier stand and held that the grant of pardon by the President is an act of grace and, therefore, cannot be claimed as a matter of right. The power exercisable by the President being exclusively of administrative nature, is not justifiable. Whereas, In Swaran Singh v State of U.P.  , the Governor of U.P. had granted remission of life sentence awarded to the Minister of the State Legislature of Assembly convicted for the offence of murder. The Supreme Court interdicted the Governor’s order and said that it is true that it has no power to touch the order passed by the Governor under Article 161, but if such power has been exercised arbitrarily, mala fide or in absolute disregard of the “finer cannons of constitutionalism”, such order cannot get approval of law and in such cases, “the judicial hand must be stretched to it.” The Court held the order of Governor arbitrary and, hence, needed to be interdicted.

Thus, attaining conclusion to the paradox, the supreme court resolved in a landmark judgment Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors and held that it is a well-set principle that a limited judicial review of exercise of clemency powers is available to the Supreme Court and High Courts. Granting of clemency by the President or Governor can be challenged on the following grounds:

  1. The order has been passed without application of mind.
  2. The order is mala fide.
  3. The order has been passed on extraneous or wholly irrelevant considerations.
  4. Relevant material has been kept out of consideration.
  5. The order suffers from arbitrariness.

Now, it is a well settled principle that power under Articles 72 and 161 is subject to judicial review.

 

Gallows or pillows?

In purview of ephemeral discussions which were left incomplete and diatribes which were ironical to the hypothalamus of society; 30th July will be marked not only as departure of two souls into heaven but also as an assiduous test for Indian Judiciary system. People believe and usually say that rejecting mercy to Yakub Memon was an arbitrary to his justice; they also say that the government wanted to neutralize the lacuna of blame suffered as a aftermath of ‘’IC-814 Hijack’’ in December 1999, which ended in negotiating with terrorists including Maulana Masood Azhar who later on executed an fatal attack on parliament in 2001. Regardless the question of political influence, people also raised the statistics of capital punishment and requisites of its abolishment, which ultimately led to the debacle of death vesus life instead of Yakub and justice. Considering the fact that death penalty has been abolished in 121 countries throughout the world and the world has already witnessed through its history, the brutal executions of Romans, reign of Hammurabi and many other wicked empires, the capital punishment in light of the parlance of human rights must be abolished in-toto. Quoting the great Indian Emperor Ashoka- “ The state shall not punish in vengeance’’, it is highly imperative, to consider each and every facts and circumstances before deliberating discretion to the issue.

Summing up the remnants; considering the following factors and mixing in one box- justice: moral conscience, precedents of law, Human rights, protection of nation from infiltrators, Sovereign power, attaining peace and balance of rule; Death sentences of high profile, stereotype and anti-India condemned prisoners like Yakub Memon should be commuted to life imprisonment (subjecting to due process of law). This does not only display gesture of chivalrous, scrupulous nation but also showcase a strong arm of power and dominance. Making Yakub a martyr will inspire the bedtime stories of Jihadis, for coming years unless terrorism is curbed to its extinction.

Pointing the javelin at ‘’Rarest to rare ‘’ principle, the same must be used as per discretion of the court and must be aimed to resolve the chaotic arbitrariness in imposition of death sentence in consonance with various factors that play a part in swinging the pendulum of sentencing justice erratically. In other words of Justice Bhagwati,- a penalty which is irrevocable and a damage which is beyond repair on the most precious right of a human being – The Right to Life- cant be left at present state of uncertainty in which freakish and arbitrary modes of death sentencing is currently exercised.

– Adv. Prakhar Karpe

The Author is Advocate practising at Bombay High Court

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