Being Spineless Politically

Unless our courts hold death penalty to be unconstitutional, abolition needs a new law. If the political will to change law is absent, there should be the political courage to commute death sentences if there are good reasons.

By the time you read this piece, Yakub Memon may have been killed by the noose. At the time of going to press, the President of India was closeted with home ministry officials including intelligence officers and other advisors on what could be Memon's last mercy petition.

Two developments renewed hope of life for Memon. First, Justice Kurian Joseph, a no-nonsense Supreme Court judge raised a pertinent question: whether the Supreme Court could exclude judges who took an allegedly unjust decision sought to be cured, particularly when new facts are brought to light in order to cure injustice. He had been left out from hearing the curative petition while his benchmate who was party to the decision sought to be cured was included.

Second, and more importantly, it became apparent that the Republic of India seemed to have given verbal sovereign promises of leniency to Memon. An article by one of India's most respected intelligence officers B Raman (a trusted founder of the RAW, whose book Kaoboys of RAW is a must read for anyone interested in intelligence) was published after his death, by Rediff.com indicating that Memon had been short-changed. A few days later, an officer of the Central Bureau of Investigation too made similar statements.

A curative petition can be entertained by the Supreme Court after a review petition has failed, with a view "to cure gross miscarriage of justice". Involving the same judges seems very logical since they are the ones who had come to the earlier view. Going to a different bench of the same court is regarded as "forum shopping" - among the worst unethical practices one can adopt. Remember the furore over a Chief Justice's bench being approached by Sahara out of turn when the bench that was heating its appeal was proving too difficult for the company? An entirely different bench of three judges ruled that there was no procedural error in how Memon's curative petition was handled - by different judges behind closed doors in five minutes. A bit strange considering that the Supreme Court had ruled that review petitions involving the death penalty should be heard in public.

The real issue however is that commuting Memon's death sentence to a sentence of lifelong imprisonment is now not a matter of judicial decision-making. It is a matter of political decision-making. Just as in every sphere of governance India's political executive had ceded turf to the judiciary, in the case of death penalty too, the political executive has been hiding behind the judiciary. Worldwide, there are precedents of convicts being pulled out of death row when new facts come to light. Indian law recognises unwritten contracts and agreements can be inferred from the conduct of parties. If there is evidence of pre-agreed leniency even if not reduced to writing, it is for the President of India to use his powers to commute the sentence to life imprisonment for well-articulated reasons. That is the stuff political leadership is made of. That is the stuff that leads to folks like Mandela being regarded as "great".

Pranab Mukherjee was an integral part of the Narasimha Rao government, which handled the allegedly fake arrest of Yakub Memon in New Delhi railway station. Memon is said to have stagemanaged his arrest to give Pakistani intelligence the slip in Nepal, attracting attention with the carrying of multiple passports on his person. The credentials of officers like Raman are personally known to this President. If he does not find merit in the argument of a sovereign promise of life he should state so in a publicly available order with reasons recorded transparently. If he does not, he risks India getting cooperation in future cases.

Unless our courts hold the death penalty to be unconstitutional, abolition needs a new law. If the political will to change law is absent, then there should at least be the political courage to commute death sentences to life imprisonment if there are good reasons. If there are no good reasons, it should be easy to transparently explain the lack of reasons. Hiding behind courts only exposes being politically spineless.

This Article is first published in Mumbai Mirror. We are republishing this with special permission from the Author

The author is a financial sector lawyer with a national law firm. The views expressed above are his own. He Tweets @SomasekharS.