Yakub Memon's execution

The Supreme Court of India’s record on Yakub Memon will long be recalled for its denial of justice to him by a consistent stretching of the law and evidence against him at every single stage.

Yakub Memon.

“The authority of the courts of law is a weapon that can be used for justice and injustice. In the hands of a just government, it becomes the best means of attaining right and justice; but for a repressive and tyrannical government, there is no better weapon for wreaking vengeance and perpetrating injustice. Next to the battlefields, it is in the court rooms that some of the greatest acts of injustice in the history of the world have taken place. From the holy founders of religious to inventors and pioneers of science, there is no movement for piety or truth which has not been arraigned before the courts like criminals…. The list of injustices committed by courts is a long one. History has not yet finished singing elegies to such miscarriages of justice”.

– Maulana Abul Kalam Azad’s statement in the Court of the Chief Presidency Magistrate, Calcutta, on January 24, 1922 on a charge of sedition.

Yakub Abdul Razak Memon's in Nagpur Central Jail on July 30 was a monumental fraud on the part of the Indian state and a grave miscarriage of justice by courts of law, especially the Supreme Court of India. His guilt in the heinous crime of the blasts in Mumbai on March 12, 1993, entailing a loss of 257 lives is not in issue. What is very much in issue is the degree of his participation in the crime whose prime architect was his domineering elder brother Tiger Memon.

In his mercy petition on July 28, Yakub Memon urged the President of India to allow him “time to exhaust judicial remedies”. This death-row convict cried: “It is also worthwhile to note that death sentences imposed on the aides of Veerappan (convicted and sentenced to death under TADA [Terrorist and Disruptive Activities (Prevention) Act]), Rajiv Gandhi killers and Devender Pal Singh Bhullar have been commuted recently by the Hon’ble Supreme Court. While the mercy petitions of Veerappan’s aides, Rajiv Gandhi’s three killers and Devender Pal Singh Bhullar were decided belatedly thereby giving them the claim of delay jurisprudence, the Home Ministry has moved swiftly to reject my mercy petition. Likewise, the Mercy Petition filed by Balwant Singh Rajoana, the prime accused convicted for the assassination of Beant Singh (former Chief Minister of Punjab) also has been kept pending by the Home Ministry. It seems that machinations of law and its bureaucracy favour a class of people over the other. Secret hangings of Afzal Guru and Ajmal Kasab and now my impending execution begs the conclusion that the heavy hand of punishment and legal misery, somehow, is reserved for Muslims in this country.”

If thousands of Muslims thronged his funeral procession in Mumbai, it is because they shared this sentiment. In glaring and very significant contrast, there was not the slightest expression of sympathy for him in all the years that he was on trial. This is because recent events, statements and court proceedings suggested to Muslims that in matters of moment justice will be denied to them. It has left a bitter trail.

This feeling is not confined to Muslims. What is truly heartening to all who believe in India’s secularism is the strong support for the commuting of Yakub Memon’s death sentence from human rights activists cutting right across the political and religious divide. Many people felt that Yakub Memon received a raw deal. This writer can testify to this from personal knowledge. Aakar, a respected non-governmental organisation, hosted a seminar on its Justice Project in New Delhi on August 5 and 6. The audience was mostly young, with women in the majority. All mused freely. No one had a word of support for the murder of justice on July 30. This was in glaring contrast again to TV anchors and most of their panellists. Despite the depressing times, we must not lose heart but enlist ourselves in the good fight. Secularism, the only solution, is very much alive.

The world has been watching. The editorial of International New York Times on August 6 summed up the situation accurately: “July 30 was a sombre day for India—a day that called into question the application of the death penalty in a country whose criminal justice system is stacked against minorities, the poor and those who do not have the backing of powerful political interests.

“On that day, Yakub Memon was executed. The same day last year, Maya Kodnani was released from jail. Just three years ago, Ms Kodnani was sentenced to prison for 28 years for her role in an attack in Gujarat that left at least 94 people, all Muslims, dead during riots in 2002. She was also, however, a top lieutenant in the Gujarat State government once headed by the current Prime Minister, Narendra Modi. Mr Memon had no such political connections. An accountant, he admitted to playing an accessory role in the 1993 bombings in Mumbai, masterminded by his brother ‘Tiger’ Memon and Dawood Ibrahim, a Mumbai underworld boss. The bombings, which took the lives of 257 people and injured some 700 others, were set off in revenge for riots that engulfed the city in December 1992 following the destruction by Hindu militants of the Babri Mosque in the Indian city of Ayodhya. More than 1,000 people died in the Mumbai riots, most of them Muslims.”

The crucial question, evaded commonly, is why on earth did Yakub Memon return to India at all. There is an adamant refusal to answer it because it exposes dishonest and dishonourable conduct.

Let us begin with S. Hussain Zaidi’s book Black Friday: The True Story of the Bombay Bomb Blasts (Penguin, 288 pages, Rs.399). It is based on documents and interviews with officials of the Central Bureau of Investigation (CBI); the top brass of the Mumbai Police, including Police Commissioner A.S. Samra; lawyers in the case; several of the accused; and even the judge of the specially designated TADA court, Pramod Kode, “who reassured and encouraged me. His support paved the way for the completion of this book”. Zaidi has fully lived up to their trust with his commitment to the truth.

Tale of surrender There is a whole chapter (13) on Yakub Memon (pages 229-245). Zaidi writes: “He and Tiger were diametrically opposed to each other in nature. One had no compunction about making money by illegal means; the other was suave, educated and successful through legitimate means.… It was Yakub’s well-known financial acumen that made the investigators suspect his involvement in the blasts case. During the investigations, it was found that complex financial transactions had taken place through several of Tiger’s accounts, and the police assumed that Yakub must have organised these.… All this careful financial planning made the investigators conclude that Yakub Memon must have been involved.”

There is a graphic description of his life after he left Mumbai on March 9, 1993, before the blasts. Whether in Dubai or in Karachi, Yakub Memon was not a free man. “There were two choices before him: he could live with this polite imprisonment by Pakistan, or he could go back to India, face a trial and try to clear his name. These were the options he had come to Kathmandu to try and think about. He decided that the best option for him was to try to make a deal with the Indian government and convince them that the rest of the Memon family was innocent. It was better to try to go back to their old lives rather than live at the mercy of the Pakistan authorities, as tales of the intelligence services killing off those who had outlived their usefulness were legion. He was especially concerned about his parents, who were now old and deserved better, and for his wife Raheen who was due to deliver their child soon. He did not want his child to live his whole life under the shadow of fear.” The tale of his surrender is told with precision.

“There was considerable public and media speculation about how Yakub, despite being under constant ISI [Inter-Services Intelligence] surveillance, could fly out of Karachi carrying incriminating documents. According to one theory, RAW [Research and Analysis Wing] agents had wooed him away.… It was also speculated that the CBI had struck a deal with him, which all officials unanimously denied.” His wife was to deliver their first child in the first week of August.

Note the Afzal Guru parallel: a TV interview arranged by the police. “He stated that it was Tiger Memon and Taufiq Jaliawala who had been the kingpins, and explained how Tiger had been used by the ISI in the plot. Yakub spoke at length about the role played by Taufiq Jaliawala. It was Jaliawala who had coordinated with Dubai and Bombay on behalf of the Pakistani authorities, and played a major role in selecting the blast sites.” The quarry is destroyed with his “confession” on TV.

Zaidi explains why Yakub Memon returned. Before he took the fateful step, “copies of the charge sheet in the blasts case had reached Karachi. Yakub had talked to lawyers who studied it and said that based on the evidence detailed only Tiger could be convicted. The other members of the family would, at worse, receive light sentences. It was this assurance which had prompted Yakub’s return. He had prepared for the homecoming carefully. He had driven around Karachi photographing the homes of Jaliawala, Dawood and Tiger’s lieutenants who had executed the bomb blasts. He had recorded conversations between Jaliawala, Tiger and others on microcassettes.” Yakub Memon returned armed with useful information and with the faith of solemn promises made to him.

The TV interview created a sensation. “Many were impressed with Yakub’s courage and intelligence and intrigued by the discrepancies between the CBI account and Yakub’s. Six members of the family returned to India on 24 August—less than a month after Yakub’s arrival. They arrived not in Mumbai, where they had lived, but in New Delhi and flew Air India after contacting the Indian mission and informed them of their plan. On 11 September Yakub’s wife Raheen returned with her month-old baby. All were arrested and remanded into custody.

“Many believed that this mass surrender by the Memon family meant that a deal had been struck. The Indian government and the CBI, embarrassed that none of the important people in the conspiracy had been captured, had probably offered the Memons lighter punishment or an acquittal if they returned to India. However, the CBI maintained that there was no deal and the Memons were not planning to turn approvers. Its Director, K. Vijay Rama Rao, said that the Memons had surrendered because they had had no other option.” This was false. They could well have stayed put and, indeed, would have in all certainty if they had only known that the authorities would renege on their word. They sought to enter the arms of justice, not the jaws of death.

“The evidence provided by Yakub and Usman [Memon] proved useful in tracing the RDX back into Pakistan. They had also supplied information which indicated Dawood’s closeness to powerful people in Pakistan. Yakub revealed that after the communal riots in Bombay, Raza Ashfaq Sarvar, then a Minister in the Muslim League government of Punjab, Pakistan, frequently met Dawood in Dubai. He also stated that Dawood was close to several men in the Pakistan Army, as well as to Taufiq Jaliawala, who Yakub alleged had organised the RDX supply for the ISI. Usman furnished details of a meeting in Dawood’s Dubai house on 10 January, where the plan for the blasts was reportedly discussed.” Yakub Memon’s return had paid rich dividends for the CBI.

When Zaidi wrote his book in 2002, he could form no definite conclusion. But his inclination clearly was to accept the version that there was a deal. The group would not have followed Yakub Memon otherwise. All wanted to break with the black sheep of the family and resume their lives in their home in Mahim in Mumbai.

B. Raman’s account On July 24, 2015, 21 years after Yakub Memon’s return, an article by B. Raman of RAW was published posthumously which proved beyond doubt the fact of a deal. Raman, whom I met and spoke to for nearly an hour, was a man of high integrity. The article was the cry of a disturbed conscience, the anguish of man with a soul. It has fallen flat on those consumed with bloodlust and devoid of these rare qualities as the shrill voices on TV revealed. It bears quotation in extenso .

“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.… 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 counterterrorism division of the Research and Analysis Wing (RAW), I dealt with the external aspects of the investigation between March 1993 and my retirement on 31 August 1994. I like to believe that my work, with the help of some outstanding field officers of RAW, was highly appreciated by P.V. Narasimha Rao.…

“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 ….

“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 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 I.B. [Intelligence Bureau], who was then on deputation to the Ministry of External Affairs. Neither the RAW 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.… 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.”

Raman’s doubts were unfounded. His disclosures could neither constitute contempt of court nor unravel the prosecution case. Yakub Memon would have been convicted of lesser offences. The decent course for the authorities was to keep their word and make him an approver. The CBI, in charge of the case, was out to finish him to avenge itself on Tiger, whom Yakub Memon also loathed. Raman’s article was published on July 24, well before Yakub Memon’s execution. The Supreme Court has often relied on news reports for suo motu action. Why did it keep its eyes shut in this case? It did so even later when its attention was pointedly drawn to the article. And this in a case involving human life.

Shantonu Sen’s logic This is a fair statement of the matter. One wishes one could say the same of Shantonu Sen, Joint Director, CBI, who handled the case. His statements are contradictory but unwittingly reveal him. He admitted to Barkha Dutt of NDTV on July 28 that “the CBI did use all of its contacts in Pakistan to induce the Memons to believe that their safety lay in India. We learnt from our sources that there was internal disagreement among the Memon family, all staying in Pakistan.” Multiple Indian agencies “were in touch with the Memon family, including the Intelligence Bureau and RAW”.

Would any sane person in those circumstances return to India unless he was offered a substantial, tangible inducement and credible promises that before long he would return to his life? What did Sen offer to Yakub Memon? “We offered him the great justice of India.” And Yakub Memon, a seasoned chartered accountant, fell for it as if he was born just the day before. By 1994, he could not have failed to receive, in Dubai or Karachi, reports of indiscriminate arrests of Muslims in the city, especially in Mahim, by the police and cases of torture of suspects. Sen’s florid expression is itself revealing—unlike Raman he was prevaricating. The aim was “if not you, Tiger, we will grab your brother Yakub”. The line was followed with shameful consistency to showcase the CBI’s success. Raman’s version was corroborated by Shyam Keswani, a leading lawyer who was Yakub Memon’s advocate.

Sen’s article in Millennium Post , a New Delhi daily, on August 4 after the execution revealed more than he suspected. “In 2014, the Supreme Court commuted the death sentences in some important terrorist cases. The three persons convicted in the Rajiv Gandhi assassination case, which was a major terrorist attack, got their sentences commuted to life imprisonment. Soon after, Devender Pal Singh Bhullar who was sentenced to death for a terrorist blast also got his sentence commuted to life. In both these cases, there was strong political backing for commuting their sentences in Tamil Nadu and Punjab respectively.

“The fact is since 2004, in the past eleven years, only three convicted persons have been hanged. If we exclude Ajmal Kasab, who was a Pakistani national, the other two are Muslims, Afzal Guru and Yakub Memon. However, the bloodlust displayed by certain right-wing political parties with regard to those accused of terrorism is selective.” Yet all hell broke loose when Asaduddin Owaisi, MP said just that.

Sen denied knowledge of “Raman’s assurance” but omitted to mention in his article what he had told NDTV—Yakub Memon was induced to return—which comes very close to Raman’s version. Unwilling to face the truth, he prevaricates.

“It is, however, clear that Yakub Memon was singled out for severe punishment because his brother Tiger Memon, the main conspirator along with Dawood Ibrahim eluded the law. Yakub Memon was prepared to return from Pakistan and cooperate with the authorities. Despite the fact that he had provided valuable information and evidence as to how the ISI in Pakistan assisted the conspirators, a fact attested to by the former senior intelligence officer, he deserved the death sentence”—a perfect non sequitur to quieten the conscience. How a person who had helped the police thus, and returned on the faith of its promises, deserved the death penalty is something only Sen can explain. But his logic was followed by others later: if not Tiger Memon, catch Yakub Memon. As it happened, on the very day Sen’s article was published (4 August), The Asian Age carried an article by former Army chief General Shankar Roychowdhury aptly entitled “The problem with India’s promises”. He wrote: “…the credibility of sovereign assurances given by the Indian state.…

“…Memon’s arrest in Delhi in 1994, after return to India with his family, his trial and award of the death sentence, and then his execution even after 20 years of incarceration awaiting trial, surely violates any sovereign assurances which may have been conveyed even non-formally by clandestine agencies of the Government of India. If true, the process of Memon’s execution undermines the reputation and trustworthiness of the nation itself, since, paradoxically good faith is one of the unwritten rules of clandestine negotiations in the dim and totally murky world of counter-espionage. But that game, too, cannot be played unless there is a sense of honour, even among thieves.”

The Afzal Guru parallel Who will believe India’s word in a similar situation in future? Precisely this dishonest course was adopted in Afzal Guru’s case: persuasion to return and self-incrimination on TV. Afzal Guru was executed on February 9, 2013, after a trial in which he went undefended. It was for alleged complicity in the attack on Parliament House on December 13, 2001. A surrendered militant, he wished to resume a normal life but was brought by the police to New Delhi from Srinagar. His “confession” to the police was rejected by the Supreme Court, but it did not pursue the logic of its rejection ( State (NCT of Delhi) vs Navjot Sandhu (2005) 11 Supreme Court Cases page 600). He was paraded before TV cameras under the control of Assistant Commissioner of Police Rajbir Singh, who also gave directions to TV channels.

The trial judge, S.N. Dhingra, was openly hostile. A large array of human rights activists led by Arundhati Roy campaigned for his release but to no avail. Justices P. Venkataraman Reddy and P.P. Naolekar sentenced him to death. The former said: “The appellant (Afzal Guru) who is a surrendered militant and who was bent upon repeating the acts of treason against the nation is a menace to society and his life should become extinct. Accordingly, we upheld the death sentence” ((2005) 11 SCC 760). Even the prosecution did not allege that he was “bent upon” that. There was no evidence to that effect.

In civilised countries, judges pronounce the death sentence with great reluctance, regret and, in extreme cases, controlled indignation, never exultantly, in a spirit of vindication or in brazen populism. This passage has been widely criticised, but the question it squarely raises is overlooked. How fair and detached in their evaluation of the facts and the law can be judges who are capable of using language such as this? Afzal Guru was executed in complete secrecy on February 9, 2013, in order to prevent another mercy petition or a review petition to the Supreme Court. All the rules in the jail manual were broken. They require (a) that the family be informed prior to the execution, (b) that the accused be given time to write his will, and (c) that his body be handed over to his family. A letter was sent by “Speed Post” on February 8 to Afzal Guru’s wife, Tabassum, in Srinagar calculatedly to reach her after the execution. It reached her two days after the execution and read: “The mercy petition of Sh Mohd Afzal Guru s/o Habibillah has been rejected by Hon’ble President of India. Hence the execution of Sh Mohd Afzal Guru s/o Habibillah has been fixed for 09/02/2013 at 8 a.m. in Central Jail No. 3. This is for your information and for further necessary action.”

Devender Pal Singh Bhullar was convicted of attempts to murder the then Senior Superintendent of Police of Chandigarh, Sumedh Singh Saini, and president of the Youth Congress Maninderjit Singh Bitta and sentenced to death. Petitions for clemency followed: from David Kilgour, Secretary of State (Asia Pacific), Department of Foreign Affairs, Canada; the United States Congress; a British MP; Ram Jethmalani, MP; and Justice (Retd) A.S. Bains, Convener, Defence Committee. On March 22, 2002, the Supreme Court upheld the death sentence (2-1). Justice Arijit Pasayat spoke of “menace of terrorism,” the “extraordinary situation existing in the country” and the “grimness of the situation”. His statement that “proof beyond reasonable doubt is a guideline, not a fetish” revealed a strange notion of Indian jurisprudence.

On March 31, 2014, Justices P. Sathasivam, R.M. Lodha and H.L. Dattu commuted the death sentence to life imprisonment following the Supreme Court’s ruling in Shatrughan Chauhan vs Union of India ((2014) 3 CCC 1) in which it ruled that “supervening circumstances” would warrant the commutation: delay in the disposal of the mercy petition; mental illness like schizophrenia, solitary confinement, etc. (Yakub Memon suffered from schizophrenia and was kept in solitary confinement). Justice Sathasivam’s wise dictum was ignored: “Remember, retribution has no constitutional value in our largest democracy.” Also: “Like the death sentence (which) is passed lawfully, the execution of the sentence must also be in consonance with the constitutional mandate and not in violation of the constitutional principles” (page 91). Both dictums were flouted in Yakub Memon’s case and in Afzal Guru’s.

Fine precision in the process In the U.S., a formidable case law and scholarly writings exist on the award of death sentences, especially to blacks. In Europe, Jews suffered, witness, the Dreyfus case. In U.S. vs Rabinowitz (339 U.S. 56 (1950)), Justice Felix Frankfurter recalled: “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment. A disregard of the historic materials underlying the Amendment does not answer them. It is true also of journeys in the law that the place you reach depends on the direction you are taking.” Constitutional values must not be sacrificed because of one’s dislike of the litigant, especially in cases involving the death sentence.

“Every conceivable [ sic ] mitigating factor” must be considered ( Lockett vs Ohio 438 U.S. 586 (1978); see Henry J. Abraham and Barbara A. Perry, Freedom & The Court: Civil Rights & Liberties in the United States , page 72). The court had held that “in capital cases the fundamental respect for humanity underlying the Eighth Amendment… requires consideration of the character and record of the individual offender and the circumstances of the particular offence as a constitutionally indispensable part of the process of inflicting the penalty of death”.

It repeatedly emphasised the need for “ individualised consideration”. This observation is highly relevant. “Where life itself is what hangs in the balance, a fine precision in the process must be insisted upon .” It is a shame that in Yakub Memon’s case this principle was abandoned.

The issue of bias was squarely raised in McCleskey vs Kemp (478 U.S. 1019 (1987)). It received its just deserts from Prof. Randall L. Kennedy in a scholarly contribution to Harvard Law Review (Volume 101, No. 7, May 1988, pages 1388-1443). Entitled “Race, Capital Punishment and the Supreme Court”, it was a devastating censure not only of the judgment but of the judges’ mindset.

Warren McCleskey, a young black man, was convicted of robbing a store and killing a white police officer. A jury composed of 11 whites and one black sentenced him to life imprisonment for the robbery and to death for the murder. Supported by the most comprehensive statistical analysis ever done on the racial demographics of capital sentencing in a single state, McCleskey argued that his sentence should be nullified because, among other things, there existed a constitutionally impermissible risk that both his race and that of his victim played a significant role in the decision to sentence him to death. Even though the Supreme Court assumed the validity of statistics indicating that murderers of whites are four times more likely to be sentenced to death than murderers of blacks, it nonetheless held against him.

The court’s decision in McCleskey vs Kemp was immediately beset by sharp criticism and, in some instances, outright denunciation. Anthony Lewis charged that the court had “effectively condoned the expression of racism in a profound aspect of our law”. Prof. Hugo Bedau likened the decision to such notorious holdings as Dred Scott vs Sandford , Plessy vs Ferguson , and Korematsu vs United States . Harvard Law Review described the McCleskey decision as “logically unsound, morally reprehensible, and legally unsupportable.… As in those prior disasters of judicial decision-making, the majority in McCleskey repressed the truth and validated racially oppressive official conduct”.

Prof. Kennedy opined “that the court’s opinion was hardly deviant; that more than moral callousness informed the court’s analysis.… My critique of McCleskey vs Kemp does not proceed from abolitionist premises. Rather, it seeks to delineate a response to race-of-the-victim disparities that vindicates the claims of racial justice—with or without capital punishment. I am more concerned with the plight of black communities whose welfare is slighted by criminal justice systems that respond more forcefully to the killing of whites than the killing of blacks than I am concerned with the plight of convicted murderers, black or white. McCleskey understandably portrayed the case in a defendant-oriented fashion. I portray the case, by contrast, in a community-oriented fashion”. Contrast the difference in the treatment of victims of the Mumbai riots of December 1992 with that of the victims of the March 1993 blasts or the lot of victims of communal riots in Uttar Pradesh.

Denial of justice The Supreme Court of India’s record on Yakub Memon will long be recalled for its denial of justice to him by a consistent stretching of the law and evidence against him at every single stage. Its judgment on the accused in the Mumbai blasts case was delivered by Justice P. Sathasivam, Justice Dr B.S. Chauhan concurring ( Yakub Abdul Razak Memon vs State of Maharashtra was delivered on March 21, 2013 (2013) 13 S.C.C. 1). TADA turned India’s jurisprudence upside down. The Indian Evidence Act, 1872, requires tainted evidence to be independently corroborated, be it by an accomplice (Section 114) or by a confession from a co-accused (Section 30). It cannot be treated as sustainable evidence. V.D. Savarkar was acquitted in the Mahatma Gandhi murder case because the evidence of the approver Digambar Badge though credible had no independent corroboration. The Code of Criminal Procedure (CrPC), 1973, wisely renders statements to a police officer (Section 162) inadmissible as evidence. Section 15 of TADA made confessions to the police admissible. In Yakub Memon’s case, “the prosecution heavily relied on the confessional statements of co-accused persons”.

They were all made before Section 15 was amended on May 22, 1993. Until then, the statement of an accused was admissible only against him. Justice Sathasivam cited cases and the TADA court’s ruling and held that “the confession of the accused is admissible with the same force in its application to the co-accused, who is tried in the same case. It is primary evidence and not corroborative”. The evidence mainly revealed his role in disbursement of finance. Yet, the court held that he had played “a key role” in the conspiracy, “an active role in generation and management of funds”.

Did this justify a death sentence? Section 354 (3) of CrPC requires “special reasons for such sentence”. The judge held that the bully Tiger Memon’s younger brother Yakub Memon held a “dominating position” and had “equivalent [equal?] responsibility” as one of the “driving spirits”.

From this, it was a short jump to conclude. “If we say it in a metaphoric style, A-1 (Yakub Memon) and all the absconding accused were the archers, whereas rest of the appellants were the arrows in their hands. We are mindful of the fact that there is no direct act attributed to A-1 as far as parking of the explosive filled vehicles in different localities are concerned. But we should recollect, that if not for the planning of conspirators for which A-1 was a party too, the explosives and ammunition required for the execution wouldn’t have entered into our country and as a consequence the execution itself wouldn’t have materialised.”

There was no evidence to support the court’s findings of “instigation” and of Yakub Memon being “one of the brains” behind the conspiracy. His counsel cited that he had no criminal antecedent, unlike Tiger Memon; had suffered from depression since 1996; and had served more than 19 years in jail. “We accept the contention and treat the lack of prior criminal record as a mitigating factor; other ascertained mitigating circumstances are not at the higher pedestal to bargain for reduction of sentence.” Not the return, nor the illness. “Under the established jurisprudence, these two factors, a commanding position and a crime of ‘utmost gravity’, ordinarily merit the extreme penalty even accounting for the guilty plea and mitigating factors. This is the special reason, which warrants death penalty to the accused.”

From “key” position, Yakub Memon was elevated to “a commanding position” to qualify for the death sentence. It set a pattern that was followed until the execution.

This is the first part of a two-part article.