Supreme Court and the dice of death

Death penalty is barbaric and inhuman in its effect, mental and physical upon the condemned man and is positively cruel. Further, it is irrevocable; it cannot be recalled… Howsoever careful may be the procedural safeguards erected by the law before death penalty can be imposed, it is impossible to eliminate the chances of judicial error, and it is not at all unlikely that so long as death penalty remains a constitutionally valid alternative, the court or the state acting through the instrumentality of the court may have on its conscience the blood of an innocent man. Instances of wrongful conviction of death sentence are known,” wrote former Chief Justice P.N. Bhagwati in his famous dissent in Bachan Singh vs State of Punjab, where the Supreme Court upheld the death penalty by majority.

Now that Yakub Memon has been hanged by the neck till dead, let us take a step back and introspect on his conviction, the drama surrounding his execution, and ponder over the words of Justice Bhagwati.

Yakub was the only accused to be sentenced to death for the 1993 Bombay serial blasts that spread havoc in March 1993, claiming 257 lives, injuring 713 persons and damaged properties worth Rs 27 crore (valued in 1993). He was convicted by the special court for being one of the chief architects and masterminds of the blasts, and was found guilty of participating in several meetings where the conspiracy of the blasts was hatched, and arranging travel and money for the other perpetrators for the execution of the blasts.

Upon reading the judgment of the Supreme Court upholding the conviction and death sentence of Yakub, it becomes clear that the conviction was primarily based on the confessional statements of co-accused, some of which were later retracted. Much concern was aroused by the order for his execution. Some unfortunate scenes of celebration outside the Nagpur jail were also telecast. But the question that lingers in a mind not captured by jingoism is whether the dramatic execution of Yakub was merited in accordance with the law of the land and within the constitutional limitations of the deprivation of life.

Yakub is the first to be executed for conviction under the draconian (and now repealed) Terrorist and Disruptive Activities (Prevention) Act, 1987, (Tada). Being an anti-terrorism law, the Tada Act does not provide for an appeal to the high court, but one directly to the Supreme Court.

Therefore, even a death row convict is not subject to confirmation by the high court, unlike in death sentences under the regular penal law. Unlike ordinary criminal law, under the Tada Act a confession by an accused to a police officer is admissible. Obviously, a terrorist activity of such a large scale makes it difficult, nay impossible, to get direct evidence against the chief conspirators and, therefore, courts often rely on cogent circumstantial evidence. Perhaps this merits a cautious approach by the apex court while hearing an appeal against death sentence.

When, in several cases, the court has shied away from upholding the death penalty in the absence of independent cogent evidence, what provoked the court to sentence Yakub Memon to death primarily on the basis of the confessional statements under legislation that provides for no requirement of confirmation by the high court is left unanswered. Can the “rarest of the rare” test for the death penalty for normal penal offences be at the same footing as that for a Tada accused? I ask myself, whether this does justice to the due process guarantee under our constitutional framework?

There can be no two views on the fact that the loss of 257 innocent lives in the 1993 Bombay serial blasts is decidedly condemnable. Although several people were tried and convicted (including Sanjay Dutt, in respect of whom a great deal of leniency has been shown by the prosecution and the courts), the masterminds have eluded the law. The law in respect of criminal conspiracy under the Indian Penal Code is well settled, and it need not be proved that each member of the conspiracy was aware of the exact details of the common design, so long as it can be proved by inferences drawn from the acts committed by the accused persons. In other words, each is equally liable, irrespective of his/her role. In that event, the question is, why were the planters of the bombs, who were sentenced to death by the special court for their role in the blasts, spared the noose?

In my submission, commuting the death sentence of planters of bombs to life imprisonment, by terming them as “mere arrows” of the architects, while upholding the death sentence of Yakub depicts grave inconsistency. It can hardly be said that Yakub alone is responsible for the death of 257 innocent people to justify death. While the revelation of B. Raman, one-time head of the counter-terrorism division of the Research and Analysis Wing, brought doubts to our minds, which has time and again been a mitigating factor for commuting the death sentence, one cannot help but ask whether death penalty was the absolute correct course for Yakub.

The debate with regard to Yakub’s death sentence saw the participation of lawyers, retired judges, filmstars, some politicians, activists and, most unfortunately, zealous news anchors. What is not clear is how punishment can be a means of justice. No amount of punishment to any person can bring justice to the victims of a crime — whatsoever the crime may be, and whosoever the person may be. It would be incongruent to common logic and any known theory of punishment to think so.

While it is commendable that the apex court worked overtime to ensure that there was not even an iota of doubt over the court’s commitment to hearing Yakub’s plea against the death sentence, the undue haste shown by authorities for his execution is questionable. All these questions make me wonder whether Justice Bhagwati was right in his dissenting judgment in Bachan Singh’s case, where he held that the death penalty was unconstitutional. Perhaps it is time for the Supreme Court to re-examine the question of its validity.

The writer is a Supreme Court advocate