According to Mr. Haresh Raichura, a senior Lawyer in Supreme Court of India, the constitution gives you the right to approach the president to commute, delay, abolish or lessen the sentence term awarded by the Supreme Court. Technically, the judgment of the Supreme Court is not challenged by approaching the president but only its implementation is tweaked or stopped by the president. The judgment still remains valid for all other purposes except its implementation.
The legal status does not change. The judgments of the Supreme Court cannot be challenged anywhere else except in the Supreme Court itself since it is the Apex Court of the Country and the only way to do it is by filing a review petition of the judgment given by the Supreme Court. A larger bench of the Supreme Court may overrule the judgment given by a smaller bench of the S.C (Ex: A bench of 5 justices can overrule a judgment given by a bench of 2 or 3 judges). Overruling, however, only overturns any legal implications and effect of the judgment which is overruled. Overruling a previous case does not affect the actual implementation of the judgment of the court on the facts in the previous case.
Salman Khan’s Reactions
As the citizen of India we should have full faith in the decisions of the Supreme Court of India. It simply applies to every decision including the one about Yakub Memon.
Salman Khan is a good and successful film star, and as an Indian citizen he has every right to express his opinion but without transgressing the legal boundaries. However, a lucky and good acting caliber doesn’t guarantee a good IQ. He had mounted, to the frustration of majority of his fans, a spirited defence of Yakub Memon. A saner advice of Salim Khan, the father of Salman prevailed and Salman Khan made a U-turn and apologised after his comments provoked strong reactions from political parties and social media users.
“I have not said or implied that Yakub Memon is innocent. I have complete faith in the judicial system of our country.” “I would like to unconditionally apologise for any misunderstanding I may have created unintentionally.”
Being in good books of ruling party and a superstar simultaneously, the chapter of his gaffe would hopefully be closed but the story of Yakub Memon won’t wind up even if he is finally hanged. It would be a perfect case of a highly qualified CA’s mental and moral perversion – a tragedy that took so many lives.
Other Opinions on Yakub Memon’s Case
It is interesting to note that the judicial opinions about his executions are encompassing the wider spectrum in media.
Justice Markandey Katju, the former Supreme Court judge and former chairman of Press Club of India wrote on his Facebook page about the conviction of Yakub Memon ‘I have carefully studied the judgment of the Court. The evidence on which he has been found guilty is very weak. This evidence is (1) retracted confession of the co-accused, and (2) alleged recoveries’. Everyone knows how ‘confessions’ are obtained by the police in our country–by torture. And torture is such a terrible thing that one will confess to anything under torture. Joan of Arc confessed to be a witch under torture. Moreover, in Yakub Memon’s case the ‘confession’ was retracted’.
Mr Katju also questioned the recoveries by police and wrote ‘anyone having even the slightest knowledge of the working of the police knows that such alleged recoveries are often planted. The truth is that our police usually cannot nab the real culprits because they are not trained in scientific investigation, and yet they have to solve the crime. So the best thing to do in terrorist cases is to implicate half a dozen Muslims, since it is well known that Muslims have nothing else to do except throw bombs’.
The Supreme Court had already rejected Yakub Abdul Razak Memon’s curative review petition, setting off the countdown to July 30, the date of his hanging. A few hours later, Memon, accused of criminal conspiracy in the Mumbai serial blasts of 1993, filed another mercy petition with the Maharashtra governor. The outcome will be known soon.
The Article 72 of the Indian Constitution vests executive authority to grant pardons, reprieves, respites or remissions from penal sentences, especially the sentence of death, in the President of India. Similar powers are also available to a governor of a state under Article 161 of the Constitution.
B. Raman’s Side of the Story
Mr Bahukutumbi Raman, also referred to as B. Raman who was an Additional Secretary of the Cabinet Secretariat of the Government of India and one-time head of the counter-terrorism division of the Research had favoured clemency for Yakub on the ground that he had cooperated with investigating agencies and does not deserve to be hanged. He had written an article for publication containing this view but stopped having second thoughts, but the article has now been published on ‘Rediff.com’ website.
Following are some relevant parts of the article:
“I have been going through a moral dilemma in my mind ever since I read in the media about the sentencing of Yakub Memon to death by the court, which tried the accused in the Mumbai blasts of March 1993, and his tantrums in the court after the death sentence was pronounced.
Right though the trial, he has been claiming that he was not arrested in Old Delhi as stated by the prosecution, but in Kathmandu, Nepal. This was disputed by the prosecution, which asked for the severest penalty against him and others, who were sentenced to death. All those sentenced to death have the right of appeal to the higher court and to petition the President of India for clemency if their appeals are rejected.
I have been repeatedly asking myself: Should I write this article? Would I be a moral coward if I did not do so? Would the entire case get unravelled if I wrote it? Would the undoubtedly guilty escape punishment as a result of my writing it? Would my article be adversely viewed by the court? Would I be committing contempt of court? It is impossible to have definitive answers to these questions. Ultimately, I decided to write this in the belief that it is important to prevent a person, who in my view does not deserve to be hanged, from going to the gallows.
As the head of the counter-terrorism division of the Research and Analysis Wing (R&AW), I had dealt with the external aspects of the investigation between March 1993 and my retirement on August 31, 1994. I like to believe that my work, with the help of some outstanding field officers of R&AW, was highly appreciated by P V Narasimha Rao, the then prime minister, who described our contribution to the investigation of the external aspects as worth its weight in gold.
I was disturbed to notice that some mitigating circumstances in the case of Yakub Memon and some other members of the family were probably not brought to the notice of the court by the prosecution and that the prosecution did not suggest to the court that these circumstances should be taken into consideration while deciding on the punishment to be awarded to them. In their eagerness to obtain the death penalty, the fact that there were mitigating circumstances do not appear to have been highlighted.
It was an outstanding piece of investigation by the Mumbai police and the Central Bureau of Investigation, with the excellent help of the IB. The nation ought to be proud of the officers who handled the investigation and prosecution, for their outstanding success in painstakingly collecting all the relevant evidence and placing before the court a watertight case.
The aura surrounding them would have shone even brighter had they taken the initiative in underlining before the court that there were some mitigating circumstances and that keeping those circumstances in view, they would refrain from asking for the death penalty even though perpetrators of such barbaric acts of terrorism deserve the death penalty.
The prosecution was right in saying that Yakub was arrested in Old Delhi. Yakub was right in claiming that he was not arrested in Old Delhi. In July 1994, some weeks before my retirement, he was informally picked up in Kathmandu, with the help of the Nepal police, driven across Nepal to a town in Indian territory, flown to Delhi by an aircraft of the Aviation Research Centre and formally arrested in Old Delhi by the investigating authorities and taken into custody for interrogation. The entire operation was coordinated by me.
He had come to Kathmandu secretly from Karachi to consult a relative and a lawyer on the advisability of some members of the Memon family, including himself, who felt uncomfortable with Pakistan’s Inter-Services Intelligence, returning to India and surrendering to the Mumbai police. The relative and the lawyer advised him against surrender due to a fear that justice might not be done to them. They advised Yakub to go back to Karachi.Before he could board the flight to Karachi, he was picked up by the Nepal police on suspicion, identified and rapidly moved to India.
He cooperated with the investigating agencies and assisted them by persuading some other members of the Memon family to flee from the protection of the ISI in Karachi to Dubai and surrender to the Indian authorities. The Dubai part of the operation was coordinated by a senior officer of the IB, who was then on deputation to the ministry of external affairs. Neither the R&AW nor I had any role in the Dubai part of the operation.
The cooperation of Yakub with the investigating agencies after he was picked up informally in Kathmandu and his role in persuading some other members of the family to come out of Pakistan and surrender constitute, in my view, a strong mitigating circumstance to be taken into consideration while considering whether the death penalty should be implemented.
There is not an iota of doubt about the involvement of Yakub and other members of the family in the conspiracy and their cooperation with the ISI till July 1994. In normal circumstances, Yakub would have deserved the death penalty if one only took into consideration his conduct and role before July 1994.
But if one also takes into consideration his conduct and role after he was informally picked up in Kathmandu, there is a strong case for having second thoughts about the suitability of the death penalty in the subsequent stages of the case.
Justice H S Bedi expressed the following opinion in The Indian Express report on July 24
Let me at the very beginning say that I am in principle against the imposition of death penalty. It serves as no deterrent, as statistics worldwide show, and on the contrary brutalises society. My predilection, however, has had no bearing on my decisions as a High Court and Supreme Court Judge for almost 21 years, as I have often upheld the death penalty. The Supreme Court of India, as indeed courts all over the free world, are agreed on the fact that all mitigating factors in favour of an accused facing a capital sentence must be put before the court and that this obligation rests equally on the prosecution as well. It also appears that some commitment by the government or its agencies had been made to Yakub Menon and that he had fully cooperated with the investigative agencies after his arrrest. I take it that this commitment would relate to the sentence that he would receive.
Addressing a public gathering in Hyderabad, Asaduddin Owaisi, the IM MP said, “Killers of former Prime Minister Rajiv Gandhi and Punjab Chief Minister Beant Singh are not being executed because of political pressure. The killers of Rajiv Gandhi and Beant Singh have the backing of political parties in Tamil Nadu and Punjab. Which political party is backing Yakub Memon? Shiromani Akali Dal in Punjab has gone to the extent of pardoning Balwant Singh Rajoana. Thousands of people were killed in communal riots following the demolition of Babri Majid, many officers were booked under serious charges but none were convicted.
Later, talking to a TV Channel, Owaisi said he is not against the court’s verdict in Memon’s case but the circumstances leading to his death penalty can not be ignored.
By Naim Naqvi