Guest post by ISHANI CORDEIRO
A reply to ‘An Open Letter By A Cop To Those Opposing Death Penalty To Yakub Memon’ by ‘ A Thulla’.
Let me begin by stating, for the record, that a lot of people who have raised their voice against death penalty (and not just Yakub Memon’s) are not necessarily sitting in ‘plush AC offices’ or writing ‘editorials seeking clemency for a murderer’ or visiting TV studios and shouting themselves hoarse. A lot of them are activists and lawyers and the aam aadmi – working on the ground. Having said that, let’s not disregard the voices of the public based merely on where they decide to park their backside! Also, I would like to bring to your notice that terms like human rights, due process and fake encounter are not ‘ramifications’ of pulling a trigger per se. The term ‘ramification’ implies an unwelcome consequence of an action. Human rights and due process are pillars of a democracy and fake encounters are constitutional infringements. The fact that ‘terrorists’ don’t consider these of much value but you have to consider these burdensome terms before taking any action also implies that the law (read constitution) considers you to be ‘reasonable person’ and not the ‘terrorist’.
Now to go into the specific arguments you made.
1. Your first argument is that Yakub Memon did not surrender but was caught in Kathmandu. You also quote a particular section of B Raman’s letter to bring home your point. I think your argument is slightly misguided here. The issue is not that Memon surrendered, but that he provided vital information to the investigative agencies such that the other arrests could take place. You could have quoted the following lines from Raman’s letter:
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.
2. Your second argument is that the ‘intelligentsia’ has suddenly decided to wake up and ask for abolition of death penalty while it was sleeping all this while. I can’t emphasise enough how vehemently I disagree with this argument of yours. The demands of the ‘intelligentsia’ gets picked up by the popular media when cases such as this or Afzal Guru’s comes into the limelight. You see, the ‘intelligentsia’ has been advocating for abolishing death penalty for many years now. There have been enough studies conducted and advocacy papers written on the ineffectiveness and arbitrariness of death sentences in India. For the sake of brevity, I am going to refrain myself from mentioning the history of ‘intelligentsia’s’ involved in abolishing death sentence in India and would kindly request you to visit National Law University, Delhi’s Death Penalty Research Project website and also read the work of Dr. Yug Mohit Chaudhry.
3. Your final argument is that this was a purely judicial decision and no party had any role to play. Though I am tempted to say that the separation of powers in this country is quite a farce, but I am not going to base my argument on that, because, well, that really is no argument at all! I would, however, like to bring your attention to the Constitution of our country. Article 72 and 161 of the Constitution givers powers to the President or the Governor, as the case may be, to grant pardon to convicts sentenced to death respectively. If a request for pardon is filed before the Governor, the application is sent to the State Government who then seeks orders from the Governor. If the Governor rejects the application, the request is forwarded to the Secretary of the Government of India, Ministry of Home Affairs, for consideration of the President. Coming to the vital part of the argument, the President is advised by the Ministry of Home Affairs on whether a pardon should be granted, and the President is actually bound by the advice. This decision, like every other mercy petition filed before a Governor or President, clearly, was not purely judicial!
Before I end this letter, I would want to highlight another small point which you might have missed. The trial Court gave 12 convicts death penalty and 20 were given life sentences. 11 of the 12 convicts who were sentenced to death filed an appeal before the Supreme Court. 10 death sentences were converted to life. The Supreme Court upheld only Memon’s sentence.
The issue here, however, is larger than merely a Yakub Memon. It cannot be denied that the use of death penalty is arbitrary and inconsistent. In fact, this has even been acknowledged by the Indian courts as well as international human rights bodies such as the UN. There also has been no empirical evidence to show that death penalty is a deterrent to a crime. Aakar Patel, Executive Director of Amnesty International India, aptly puts it:
This morning, the Indian government essentially killed a man in cold blood to show that killing is wrong.
An ‘Adarsh Liberal’