Supreme Court and Yakub Memon

Print edition : October 02, 2015

Special prayers being offered in Kolkata on July 31, the day after Yakub Memon was hanged. Photo: Dibyangshu Sarkar/AFP

Yakub Memon, when he was on death row. Photo: PTI

Justice Kurian Joseph. He stayed the death warrant, but Justice Dave would not. Photo: Thulasi Kakkat

Yakub Memon's brother Suleiman on his way to Nagpur Central Jail after the execution on July 30. Photo: PTI

Journalists waiting outside the Supreme Court on July 30 early morning for the final verdict on Yakub Memon's petition. The case was heard uniquely in court and not at the judge's residence at night as is the norm. Photo: Prashant Nakwe

Justice Anil R. Dave. His predilections and prejudices "do not lie deep below consciousness". Photo: R.V. Moorthy

Senior Advocate Raju Ramachandran. He was Yakub Memon’s counsel. Justice Dave said to him and Senior Advocate T.R. Andhyarujina: "I hope you know who you are trying to save." Photo: S. Subramanium

Justice Dipak Misra. While hearing the petition on July 30, he said: “The instant petition is a clear expose of the manipulation of the principle of rule of law.” Photo: R.V. Moorthy

It is important to note the course that the Yakub Memon case took in the fateful days from July 22 to the execution on July 30 and the attitude of the judges concerned to pleas from a death-row convict. In such cases, it is the judges and the country that are on trial before history.

A review petition against the March 21, 2013, judgment in the Mumbai blasts case was dismissed on July 30, 2013, by a gravely flawed decision. Yakub Memon filed a writ petition in 2014 challenging the procedure of circulation of the review petition in private instead of hearing it in open court and succeeded. However, his plea to reopen the review petition was rejected. Yakub Memon’s brother Suleiman submitted a mercy petition on August 6, 2013. It was dismissed on April 11, 2014.

Yakub Memon won an important point on September 2, 2014, when the court accepted his plea and that of others that a review petition in a case of death penalty must be heard in open court by a bench of three judges ((2014) 9 SCC 737). He petitioned for the reopening of his review petition. Review was granted on September 26, 2014, but dismissed on April 9, 2015. He next filed a curative petition with an application for stay of execution and for a hearing in open court. The Supreme Court dismissed it also on July 21.

Meanwhile, Yakub Memon received two ominous letters from the jail superintendent. One, of April 21, informed him that since his review petition had been dismissed he had the option of filing a curative petition or mercy petitions to the President and the Governor. The superintendent was informed that a curative petition had been filed. It was dismissed on July 21. Another letter, of May 25, informed Yakub Memon that he should inform the jail authorities if he desired legal aid.

Suleiman Memon received a more ominous letter on July 14. It stated that his brother Yakub Memon’s death sentence would be carried out on July 30 pursuant to the TADA (Terrorist and Disruptive Activities (Prevention) Act) court’s order of April 30 and the Maharashtra government’s order of July 13 though only the former was enclosed.

Shockingly, the TADA court issued a death warrant as early as on April 30 without hearing Yakub Memon and well before he had exhausted his legal remedies: a curative petition and petitions for clemency. The Maharashtra government was as culpable. What is even more shocking is that though the death warrant gave him 90 days’ notice, it was communicated to him only on July 13, a mere 17 days before the execution. Yakub Memon sent a mercy petition to the Governor on July 21. He also filed a writ petition in the Supreme Court on July 22 under Article 32 of the Constitution to quash the death warrant, restrain its enforcement and for a stay of execution meanwhile.

It is important to note the course that the case took in the fateful days from this point, July 22, to the execution on July 30 and the attitude of the Supreme Court judges concerned to pleas from a death-row convict. It will long be remembered.

In Shabnam vs Union of India, the court ruled on May 27 that “condemned prisoners also have a right to dignity, and execution of death sentences cannot be carried out in an arbitrary, hurried and secret manner without allowing the convicts to exhaust all legal remedies”. In Yakub Memon’s case the jail authorities’ letters of April 21, May 25 and July 14 were issued before the curative petition was dismissed on July 21.

Justice Joseph’s dissent

On the writ petition of July 22, Justices Anil R. Dave and Kurian Joseph differed completely. On July 28, Justice Dave was abrupt and insinuated freely. “It would be open to the Governor” to dispose of a pending petition for mercy before the execution “if he wants to favour the petitioner”. In his view, the pleas on “the curative petition” were “irrelevant and there is no substance in them”. But he did not stop at dismissing the curative petition on which the bench had heard argument. He also dismissed the writ petition on which it had not heard argument. Against his two pages, Justice Joseph’s vigorous dissent in nine pages hit the headlines. During the hearing of the writ petition at the admission stage, a question arose as to whether the curative petition was at all validly decided.

Justice Joseph said: “In terms of the judgments defined under the [Supreme Court] Rules, a curative petition has to be circulated to a bench of three senior-most judges of this Hon’ble Court and the judges who passed the judgment complained of, if available.

“In the instant case, the judgment complained of (be it the order passed in the review petition) is passed by a bench of three judges comprising Hon’ble Sh. Anil R. Dave, J., Hon’ble Sh. J. Chelameswar, J., and myself, but the curative petition is circulated only to the three senior-most judges.

“It may not also be totally out of context to note that the order dated 09.04.2015 in the review petition is captioned as a judgment, apparently, in terms of the definition of ‘judgment’ under the Supreme Court Rules. Thus, it is found that the procedure prescribed under the law has been violated while dealing with the curative petition and that too dealing with life of a person. There is an error apparent on the face of the order in the curative petition. The mandatory procedure prescribed under the law has not been followed. …in the nature of the view I have taken in the matter that the curative petition itself has not been decided in accordance with the Rules prescribed by this court, that defect needs to be cured first. Otherwise, there is a clear violation of Article 21 of the Constitution of India in the instant case.”

He held that the curative petition that was dismissed on April 9, 2015, had to be considered afresh as also the judgment of March 21, 2013, in the main appeal. Justice Joseph pointed out another flaw. The court’s order of July 21, 2015, passed in the curative petition did not conform to the Rules. Accordingly, the curative petition had to be considered afresh. He stayed the death warrant. Justice Dave would not.

Chief Justice of India (CJI) H.L. Dattu assigned the case to another bench, comprising Justices Dipak Misra, Prafulla C. Pant and Amitava Roy. Note that the disagreement between the two judges centred on the valid disposal of the curative petition, not the writ petition. It arose during the course of an admission hearing of the writ petition on which, however, no argument was heard. It remained pending. It was the valid disposal of the curative petition that was in issue. Justice Dave was in gross error in dismissing the writ petition as also the curative petition. So was the bench of three judges.

Its judgment was delivered by Justice Misra on July 29, at 4 p.m. It said: “Dave, J., has dismissed the writ petition, but has not adverted to the submissions made as regards the curative petition and only opined that they were irrelevant and there was no substance in them. Kurian Joseph, J., as is patent from his order, has addressed at length to the same and kept the writ petition alive.”

After discussing the law on curative petitions, the bench said: “Thus, it is luculent [ sic] that while this court exercises the jurisdiction in respect of a curative petition, it is actually the principal judgment/main judgment, which is under assail.”

Justice Misra proceeded: “At this juncture, it is condign [ sic] to state that Kurian, J., as is vivid from his decision, has not dealt with the writ petition under Article 32 of the Constitution, but directed that the curative petition has to be considered afresh in terms of the mandatory rules. We have already recorded our disagreement with the same. Therefore, the next stage has to be delineation of the writ petition on merits. As a sequitur, the dismissal of the curative petition by the three senior-most judges of this court has to be treated as correct and not vitiated by any kind of procedural irregularity.”

The bench recited the history of the case and dismissed the writ petition itself. It gave short shrift to the submissions that (a) while the TADA court gave 90 days’ notice, this was drastically curtailed to 17 days and (b) it did not hear Yakub Memon before issuing the death warrant as the Supreme Court’s ruling in the Shabnam case required: “sufficient notice ought to be given to the convict before the issuance of a warrant of death”. This is “mandatory”. The concluding paragraph reads: “In view of the aforesaid analysis, we conclude that the curative petition which is decided by three senior-most judges of this court cannot be flawed and the issue of death warrant by the TADA court on 30.04.2015 cannot be found fault with. In the result, the writ petition, being sans merit, stands dismissed.” From dismissal of the curative petition, the court jumped to dismissal of the writ petition itself.

Yakub Memon made a last desperate bid to have the death warrant quashed and the execution, due hours later, stayed. It was heard by the same bench for which Justice Misra said: “The issue that had seen the end after the day’s drill at 4:15 p.m. yesterday, i.e. 29.07.2015, appears to have unending character because precisely after ten hours, about 3:15 a.m. on 30.07.2015, it has risen like a phoenix possibly harbouring the idea that it has the potentiality to urge for a second lease of life.” The sarcasm so evident reveals a sad state of affairs.

The petitioner contended that after the bench had dismissed the writ petition and the President rejected the mercy petition, a minimum of 14 days was required before the execution could validly be carried out. The petition was dismissed but not before Justice Misra attacked the petitioner, a death-row convict, with these words: “The instant petition is a clear expose of the manipulation of the principle of rule of law.” His logic is hard to follow. “The residuary part of the submissions put forth by the learned counsel for the petitioner is that the petitioner can still challenge the rejection of his mercy petition. On a first glance, the aforesaid submission may look quite attractive, but in the present case the same does not have much commendation because the rejection of the first mercy petition by the President of India could have been assailed before this court, but it was not done”, ergo it could be done again. “In our considered opinion, to grant him further time to challenge the rejection of the second mercy petition for which we have to stay the execution of the death warrant dated 30.04.2015 would be nothing but travesty of justice.”

The flaws

The deadline for the execution was respected. The case was not heard in the night at the judge’s residence as is the norm. That would have entailed a stay. It was heard uniquely in court. This is what some in the media and at the Bar hail as “the triumph of Indian justice”. The heavens would not have fallen if the deadline of July 30 had been extended by a fortnight. In the entire proceedings, the Supreme Court did not bear in mind its own dictum, no retribution, or that of the United States Supreme Court, “every conceivable mitigating circumstance must be considered”. The tearing haste has no precedent. The flaws stand out in bold relief. To recap: The very fact that Yakub Memon returned to India with his wife, infant child and almost the entire family should have induced the Supreme Court to show compassion. He had no criminal record. Besides, he had provided valuable information to the police. This was glossed over in the main judgment. The return signified repentance. Yakub Memon was trusting and naive. Dawood Ibrahim was astute as a hardened gangster. He told Ram Jethmalani that he would surrender if he was kept under house arrest, not in jail, and all charges save those on the Mumbai blasts were dropped. The Maharashtra government refused the offer.

In Dongri to Dubai (page 235), S. Hussain Zaidi records: “A spanner was, however, thrown into the works by the apprehensions of a few politicians from Maharashtra. They were concerned that if Dawood was to return and come clean, a lot of shady dealings by a number of people in the State and at the Centre would be revealed. As the man on trial, Dawood was ironically shaping up to be the executioner for a number of politicians. If he was brought back, information on all illegal meetings with him in Dubai and London would be out in the open. Every instance of Dawood coming to the aid of these politicians would be out in the open.…

“As eager as Dawood was to clear his name, he was not naive. He knew that if his conditions were not met, the Indian government would take him to task.

“Later that year, developments around the Memon family’s surrender proved him right. He stood vindicated in his decision not to surrender unconditionally, when he saw what happened to Yakub Memon, who came back to India with a tonne of evidence against the various accused in the blasts case. But he was tried like a street thug and given the death penalty. There was no compassion for the man who had readily volunteered information and agreed to surrender.

“Thus, the Indian government let one of the biggest fish in the underworld slip through its net. Experts believe he could have been brought back and then the government could have quickly reneged on the deal struck with him.” These very “experts” cheated Yakub Memon. The Supreme Court did not thwart them.

On July 24 appeared B. Raman’s (of the Research and Analysis Wing) detailed disclosures on a deal. The Supreme Court takes suo motu cognisance of press reports and initiates proceedings on their basis. It shut its eyes to Raman’s relevant disclosures.

The Central Bureau of Investigation’s former Joint Director Shantonu Sen’s promise of “the great justice of India” is too absurd for words. No one, least of all an educated person, will rely on it to risk his life and the lives of his family. In the event, the record stands out as a shining example of that proffered justice. Here is a brief list of its practice.

(1) Confessions by Yakub Memon’s co-accused, made before Section 15 of TADA was amended to make them admissible, were “heavily relied” on against him.

(2) The Supreme Court exaggerated his role. “An active role in generation and management of funds” elevated him to a “dominant position”, which belonged only to his brother, the gangster Tiger Memon. Admittedly, there was “no direct act attributed to A-1 (Yakub) as far as parking of the explosive filled vehicles in different localities are concerned”. Yet, the court accused him of “instigation” without any evidence to support this. To award such a man the death sentence was to inflict a monstrous wrong.

(3) The TADA court issued a death warrant on April 30, 2015, without hearing him and before he had exhausted his legal remedies: a curative petition in the Supreme Court and petitions for clemency.

(4) The Maharashtra government communicated it to Yakub Memon as late as on July, a mere 17 days before the date of execution, July 30, whereas the warrant gave him 90 days’ notice.

(5) Justice Joseph pointed out the grave flaw in dealing with the curative petition. Justice Dave differed on it. CJI Dattu assigned the case to an altogether different bench. It was the validity of the disposal of the curative petition that was in issue, not the pending writ petition to quash the death warrant. The new bench dismissed the writ petition itself, which it had no right to do.

(6) Section 3(1) and (2) of TADA prescribed the death penalty for actual “terrorist acts”, that is, the use of bombs dynamite, etc. Section 3(3) prescribed a maximum punishment of life imprisonment for abetment, conspiring and the like, the charge against Yakub Memon. He was sent to the hangman nonetheless. This inspiring example of “the great justice of India” will never be forgotten for, as the Supreme Court accepted, “there was no direct act” of terrorism attributed to him.

Justice Dave’s outlook

Public interest in Yakub Memon’s case is understandable, not so, the neglect of the Bar and the media of a matter as grave and of as lasting a relevance. It concerns Justice Dave. About a year before the Supreme Court heard the Memon case, he waxed eloquent on his home turf, on August 2, 2014, at the Gujarat University convocation hall. It speaks for the times we now live in that his shocking remarks escaped both censure and consequence. He said: “Had I been the dictator of India, I would have introduced Gita and Mahabharata in Class I. That is the way you learn how to live life. I am sorry if somebody says I am secular or I am not secular. But we have to get good things from everywhere” ( The Indian Express, August 3, 2014).

Article 28 of the Constitution, which he is sworn by his oath of office to “uphold” (Third Schedule IV), emphatically declares: “(1) no religious instruction shall be provided in any educational institution wholly maintained out of state funds”. Clause 3 says: “No person attending any educational institution recognised by the state or receiving aid out of state funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.” Obviously, his commitment to this provision and, indeed, to the Constitution itself with its secular values is, to say the least, highly questionable. The insincerity stands out. If “good things from everywhere” are to be welcomed, why did he confine himself to just the two texts he believes in? His indifference to secularism is loudly proclaimed.

Two questions arise and they brook no evasion. Would he have spoken thus if the pro-Hindu regime of fellow Gujarati Narendra Modi had not come to power? The second one is one of lasting and graver consequence. It pertains to his fitness to decide, whether as a member of a bench or by himself, any case in which secular values—specifically, concerning any person from a minority community—are involved.

In his classic The Nature of the Judicial Process, Justice Benjamin N. Cardozo said: “Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge…. The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by” (Yale University Press, pages 167-8). Justice Dave’s predilections and prejudices “do not lie deep below consciousness”. They scream aloud like a gaudily coloured handkerchief jutting out of the breast pocket of a coat. The trend, tone and tenor of the lecture outside court explain Justice Dave’s comments from the bench of the Supreme Court. In Yakub Memon’s case, he gave free rein to them.

During the hearing on July 28, he said that raj dharma mandates that a king wield the rod against “paapis” (sinners) even if the king himself is a sadhu. It is the raj dharma of a judge to award appropriate and adequate punishment to a person found guilty of a crime.

Read this July 29 report in The Indian Express: “Justice Dave said they were ‘passing the buck’ to the CJI and also to the lawyers who wanted to protect Yakub, and that it was now for them to decide. Looking at Yakub’s counsel, Senior Advocates Raju Ramachandran and T.R. Andhyarujina, he said: ‘I hope you know who you are trying to save.’ Justice Dave also recalled verses from Manusmriti, considered to be the code of conduct and laws for Hindu, to state that the king, who has to be a saint himself, must punish the sinners or the sin will fall on him and that a ‘danda’ (stick) has to be used for those who inflict cruelty on the innocent. Even after the order was passed and the bench started hearing another case, Justice Dave remarked that the ‘concerns in the other case appeared to be for a person who killed 257 people’.” This is shockingly loose language for any judge to use. Yakub Memon was not charged with murder but with being a member of a conspiracy with a limited personal role. So intense and deep were the emotions that had so evidently possessed Justice Dave that even after the order was passed he remarked that “the concerns in the other case appeared to be for a person who killed 257 people.

The implication is plain: lawyers should not appear in court to defend persons charged with heinous offences. This becomes all too clear from his homily to the senior counsel Raju Ramachandran, a lawyer reputed for his integrity and independence, who did his duty with professional commitment on behalf of Yakub Memon, and T.R. Andhyarujina, a former Solicitor General of India and a former Advocate General of Maharashtra, who intervened on behalf of National Law University, Delhi/Death Penalty Litigation Clinic, an intervention that does credit to the institution. Justice Dave taunted them: “I hope you know who you are trying to save.”

How does such an outlook differ from that of goons who physically prevent advocates from appearing in unpopular cases? It is totally opposed to the Rules of Professional Conduct framed under the Advocates Act and marks a total rejection of the very basics of the criminal justice system known for centuries.

A judge’s conduct

In 1957, the English Court of Appeal pronounced a judgment summing up what a judge’s conduct should be like in court. It was delivered by Lord Justice Denning (as he then was), one of the greatest judges of all time, and will long rank as one of the finest judicial pronouncements ever made: “In the system of trial evolved in this country the judge sat to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happened in some foreign countries.

“Even in England, however, a judge was not a mere umpire to answer the question: ‘How’s that?’. His object, above all, was to find out the truth and to do justice according to law and in the daily pursuit of it the advocate played an honourable and necessary role.

“If, as Lord Greene, Master of the Rolls, had said, a judge should himself conduct the examination of witness, he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict.

“Yes, he must keep his vision unclouded. It was all very well to paint Justice blind, but she did better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lay the truth; and the less dust there was about the better….

“It was for the advocates to examine the witnesses and not for the judge to take it on himself, lest by doing so he appeared to be favouring one side or the other. And it was for the advocate to state his case as fairly and strongly as he could, without undue interruption, lest the sequence of his argument be lost.

“The judge’s part in all this was to hearken to the evidence, only himself asking questions of witnesses when it was necessary to clear up any point that had been overlooked or left obscure; to see that the advocates behaved themselves seemly and kept to the rules laid down by law; to exclude irrelevancies and discourage repetition to make sure by wise intervention that he followed the points and could assess their worth; and at the end to make up his mind where the truth lay.

“If he went beyond that he dropped the mantle of a judge and assumed the robe of an advocate; and the change did not become him well. Lord Chancellor Bacon spoke right when he said that patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.” Such a judge has been described as an “Advocate Judge” by the 14th Law Commission.

Duties of counsel

The best statement of the duties of counsel was made by Thomas Erskine in his celebrated defence of Tom Paine when he was tried in 1792 for a seditious libel: “I will forever, at all hazards, assert the dignity, independence, and integrity of the English Bar, without which impartial justice, the most valuable part of the English Constitution can have no existence. From the moment that any advocate can be permitted to say, that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end. If the advocate refuses to defend, from what he may think of the charge or of the defence, he assumes the character of the judge; nay, he assumes it before the hour of judgment, and in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel” (Howell, T.B., ed. (1816): State Trials, London: T.C. Hansard, Vol XII, page 411).

In the last century, Sergeant Sullivan sacrificed the friendship of one who had helped him, Lord Chief Justice Hewart. He was appearing for a despicable blackmailer in the famous case in which Hari Singh, Maharaja of Kashmir, was caught in bed with a woman in a London hotel. Hewart’s partisanship drove Sullivan to the appeal court, which reversed Hewart. The friendship was wrecked.

It is not contempt of court to attack a sitting judge for a statement he or she makes outside court, nor for one made on the bench that is improper for a judge to make. In The King vs Nicholas ((1911) 12 C.L.R 280), Chief Justice Griffith of Australia and Justices Barton and O’Conner said: “I am not prepared to accede to the proposition that an imputation of want of impartiality to a Judge is necessarily a contempt of Court. On the contrary, I think that, if any Judge of this Court or of any other Court were to make a public utterance of such character as to be likely to impair the confidence of the public, or of suitors or any class of suitors in the impartiality of the court in any matter likely to be brought before it, any public comment on such an utterance, if it were a fair comment, would, so far from being a contempt of Court, be for public benefit, and would be entitled to similar protection to that which comment upon matters of public interest is entitled under the law of libel.”

In the Pinochet (2) case, the House of Lords set aside its own previous decision because one of the judges, Lord Hoffmann, was a director of the Amnesty International Charitable Trust and his wife worked at its secretariat. Amnesty International had campaigned against granting immunity to the former Chilean dictator who, it held, was responsible for torture, extrajudicial execution and disappearances. The five Law Lords, who were unanimous, made sharp comments on how bias can disqualify a judge ( Regina vs Bow Street Metropolitan Stipendiary Magistrate and ors, Ex parte Pinochet Ugarte (No.2) (2000) 1 Appeal Case 119). Amnesty International, which had intervened in the appeal, “plainly had a non-pecuniary interest”. The case was ordered to be heard afresh. Lord Hutton said that the interest of a judge in the subject matter of the case “arising from his strong commitment to some cause or belief… could shake public confidence in the administration of justice” and result in rendering his decision bad in law, entailing its rejection by a superior court (ibid., page 145). The belief can be political or religious, and rejection can be by the higher court or by public opinion. In this case, no one suggested that Lord Hoffmann was guilty of actual bias. What was at stake was a principle and public confidence in the administration of justice.

The Bar and, indeed, the citizen have two remedies. One is to ask the judge reasonably suspected of bias to recuse himself in a given case. My guru at the Bar, Purshottam Trikamdas, a fearless advocate, did just that to Justice P.B. Gajendragadkar. The test laid down by Lord Bingham was would “a reasonable and fair-minded person sitting in the court and knowing all the relevant facts” have a “reasonable suspicion that a fair trial” for the applicant was not possible ( Arab Monetary Fund vs Hashim & Others, Court of Appeal delivered on April 28, 1993, The Times Law Reports, April 30,1993)?

In an extreme case, removal of the judge from the court can legitimately be demanded as Lord Denning discovered. The Haldane Society of Socialist Lawyers called upon him to quit because of his bias against trade unions.

On January 10, 1978, 20 Afro-Asian barristers decided to boycott the court of Justice Neil Mckinnon at the Old Bailey because of a well-founded suspicion of racist bias; 90 MPs demanded his removal from the bench (V.M. Nair, The Statesman, January 12, 1978). Does it make the slightest difference to the principle if the bias is religious and/or political? Of all the cant one heard during this revolting episode, the worst was that “the due process of justice had been followed”. So had it been in the case of Ethel and Julius Rosenberg, who were executed for espionage in the U.S. on June 19, 1953, at the height of the McCarthy era. On August 11, 2015, 60 years later, their sons—Michael Meeropol, a professor of economics, and Robert Meeropol—wrote in International New York Times, citing newly discovered evidence that demonstrated “conclusively that our mother was prosecuted primarily for refusing to turn on our father”. Her brother David Greenglass, who died last year, testified against her. Decades later, he admitted to The New York Times reporter Sam Roberts “that he had lied about his sister in order to protect his wife Ruth”, who was never charged. McCleskey vs Kemp only exposed the tip of the iceberg of racial hatred that sent blacks to the gallows over the decades. Alfred Dreyfus would not have been prosecuted if he had not been a Jew.

Collective conscience

In the Afzal Guru case, Justice P. Venkatarama Reddy citing “the collective conscience of society”, which he claimed to discern, found Afzal Guru guilty of an offence of which he was not charged (“bent upon repeating the acts of treason against the nation” as a Kashmiri militant) and held him to be “a menace to the [ sic] society and his life should be come extinct”; language not spoken on the bench since the days of Judge Jeffreys’ doctrine is very much alive. On August 20, 2015, a bench of Justice Misra and P.C. Pant said in another case: “A court, while imposing sentences, has a duty to respond to the collective cry of the [ sic] society.”

A new legal doctrine has been coined by India’s judges. The gravity of the offence, as perceived by them, produces red-hot indignation. This is also perceived as the “collective conscience” or “cry of the [ sic] society”. They claim to be its voice apparently. Instead of calm deliberation, the judicial process is marked by angry denunciation, to the neglect and even violation of the law.

Section 3(1) of TADA carries a maximum punishment of death. But Yakub Memon was charged under Section 3(3). It carries a maximum punishment of life imprisonment, not death. The entire proceedings from the specially designated TADA court to the Supreme Court make one sad. This is “the great justice of India” that Shantonu Sen claims to have promised Yakub Memon, whom he helped send to the gallows.

The case calls for a White, rather a Black, Book compiling all the documents in the case and related writings as a permanent record of a gross denial of justice. It must not be forgotten.

John Wilkes, a brave and popular fighter for freedom in the 18th century, was, however, a man of blemished character. Lord Mansfield said in his case: “I wish popularity; but it is that popularity which follows, not that which is run after; it is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends by noble means. I will not do that which my conscience tells me is wrong upon this occasion, to gain the huzzas of thousands, or the daily praise of all the papers which come from the press. I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels; all that falsehood and malice can invent, or the credulity of a deluded people can swallow” (98. Eng. Rep. 327 at 347, 19 State Trials 1075 at col. 1112-3).

The accused is in the dock, but in cases of high importance or significance, it is the judges and the country that are on trial before history, which is why Charles Peguy, who was of those who tried to prove Dreyfus’ innocence, said: “… a single injustice, a single illegality, especially if it be officially confirmed, a single insult offered to justice and to right, especially if it be generally, nationally, conveniently accepted, is enough to dishonour and disgrace an entire nation.”

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