Mercy Petition for Yakub Memon
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His Excellency, The Hon’ble President of India Rashtrapa甄 Bhavan, New Delhi Subject: New Mercy Pe甄甄on Urging Stay Against Imminent ExecuĀon of Yakub Abdul Razak Memon May it Please Your Excellency: This is a mercy pe甄甄on for Yakub Abdul Razak Memon, who is scheduled to be executed on 30 July 2015 as per the execu甄on warrant issued by the TADA Court. We, the undersigned, through this pe甄甄on urge Your Excellency to stay the imminent execu甄on so that the substan甄ve and fresh grounds raised herein can be considered on merits. A. Preliminary Grounds 1. An Interna甄onal Commitment to abolish death penalty – We the signatories of this mercy pe甄甄on humbly make the statement that in India death penalty cannot be imposed 甄ll such 甄me Parliament of India decides not to abolish death penalty and the reason for the same are as under: The universal declara甄on of Human Rights adopted by the General Assembly on 10.12.1948 defined certain human rights and fundamental freedoms which need to be protected. Among the subsequent human right documents, the most important are the two covenants adopted by the General Assembly in 1966: The Covenant on Civil and Poli甄cal Rights and its Op甄onal Protocol and the Covenant on Economic, Social and Cultural Rights. India became a party to both these covenant by ra甄fying them on 27.3.1979. There are two op甄onal protocols to the covenant, the Second Protocol aims at the aboli甄on of death penalty. Ar甄cle VI of Part‐III of the covenant on civil and poli甄cal rights lays down as under: 1. Every human being has the inherent right to life. This right shall be protected by law. No‐one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crime. 3. ………………. 4. Anyone sentenced to death shall have the right to seek pardon or commuta甄on of the sentence amnesty or commuta甄on of death may be granted in all cases. The President of India under Ar甄cle 72 of the Cons甄tu甄on of India has the power to grant pardon and to suspend, remit or commute sentence in certain cases. It is in this way the cons甄tu甄on of India permits right of appeal. Sub‐clause of Ar甄cle 6 of Part‐III of the Covenant as referred above provides that commuta甄on of sentence of death may be granted in all cases. In the circumstance, we will have to understand as to why “may” has been used for commuta甄on of the sentence of death to be granted by the President. The Hon’ble Supreme Court of India in Deewan Singh Vs. Rajendra Prasad Ardevi (2007) 10 SC 528 while interpreta甄ng “may” where powers is conferred upon a public authority coupled with direc甄on, the word “may” which connotes direc甄on should be cons甄tute to mean a command. In India this power of pardon is to be exercised by the President and therefore under no circumstances for empowering the President the word “shall” could have been used in the covenant but it means a command i.e. commuta甄on of sentence of death must be granted in all cases by President, 甄ll such 甄me Parliament of India decides that it will con甄nue the penalty of death sentence. Aer signing of covenant, the Parliament of India has not considered any amendment in the Indian Penal Code for aboli甄on of death sentence. The second op甄onal protocol to the Interna甄onal covenant on civil and poli甄cal rights reads as under: “The States Par甄es to the present Protocol, Believing that aboli甄on of the death penalty contributes to enhancement of human dignity and progressive development of human rights, Recalling Ar甄cle 3 of the Universal Declara甄on of Human Rights, adopted on 10 December 1948, and Ar甄cle 6 of the Interna甄onal Covenant on Civil and Poli甄cal Rights, adopted on 16 December 1966, No甄ng that Ar甄cle 6 of the Interna甄onal Covenant on Civil and Poli甄cal Rights refers to aboli甄on of the death penalty in terms that strongly suggest that aboli甄on is desirable, Convinced that all measures of aboli甄on of the death penalty should be considered as progress in the enjoyment of the right to life, Desirous to undertake hereby an interna甄onal commitment to abolish the death penalty, Have agreed as follows: Ar甄cle 1: 1. No one within the jurisdic甄on of a State Party to the present Protocol shall be executed. 2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdic甄on. Ar甄cle 2: 1. No reserva甄on is admissible to the present Protocol, except for a reserva甄on made at the 甄me of ra甄fica甄on or accession that provides for the applica甄on of the death penalty in 甄me of war pursuant to a convic甄on for a most serious crime of a military nature commiጅed during war甄me.” As regards covenant we may submit that a covenant is a treaty and it lays down a notable step forward in the protec甄on of human rights within the framework of the United Na甄ons and cons甄tutes the basic provisions of Interna甄onal Bill of Rights. The two covenants also demonstrate the way in which the United Na甄ons is overcoming its earlier hesita甄ons about the enforcement of human rights obliga甄ons. It is almost an accepted provision of law that rules of customary Interna甄onal Law which are not contrary to Municipal Law shall be deemed to be incorporated in the domes甄c law. The plea of enforceability of various Interna甄onal covenant is now no longer a maጅer of debate but should be considered to be firmly established as a part of interna甄onal law which the domes甄c courts are duty bound to give effect to. 2. Present Pe甄甄on Meets Procedural Requirements This Mercy Pe甄甄on sa甄sfies the legal requirements applicable to a fresh mercy pe甄甄on as per G. KrishtaGoud v. State of A.P., (1976) 1 SCC 157para10 and clause VII‐(A) of the Procedure Regarding Pe甄甄ons for Mercy in Death Sentence Cases, Ministry of Home Affairs, Government of India. 3. Death Warrant fixing the date of Execu甄on is Illegal Yakub Memon was not given advance no甄ce of the death warrant hearing and as a result of which he and his lawyers could not par甄cipate and contest the issuance of the death warrant. Lack of hearing makes the present death warrant void in light of the Supreme Court decision in Shabnam v. Union of India &Ors, Writ Pe甄甄on (Criminal) No. 88 of 2015 (decided on May 27, 2015). B. Fresh Grounds on Merits Following are some very disturbing aspects of this case which make the award of death sentence of Yakub Memon as grossly unfair, arbitrary and excessive. 1. Long Dura甄on of Trial and Incarcera甄on Suffered Till Date Yakub Memon has served more than 20 years in prison since his arrest. His trial took 14 years to complete. While the Hon'ble Supreme Court used this long period of incarcera甄on as a mi甄ga甄ng circumstance to commute the death sentences of the other 10 co‐accused persons, it applied a different yards甄ck to Yakub. The Hon'ble Supreme Court has repeatedly held that lengthy incarcera甄on during pendency of appeal in death cases is a significant mi甄ga甄ng circumstance which ought to be considered in determina甄on of sentence. In the interests of jus甄ce we request you to give due importance to this. The government to that extent is not bound by the conclusions arrived at by the Supreme Court (See Shanker v. State of U.P. (1975) 3 SCC 851; Vivian Rodrick v. The State of West Bengal (1971) 1 SCC 468);Kehar Singh v. Union of India(1989) 1 SCC 204para 10. 2. Yakub Memon is Mentally Unfit for Execu甄on Yakub Memon has been suffering from schizophrenia for the last 20 years which makes him unfit for execu甄on. His mental condi甄on has been cer甄fied by jail doctors. Schizophrenia as a mental illness has been held by the Supreme Court (Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1 para 86‐87) to render a convict unfit for execu甄on. Your Excellency is required to consider the mental health of a convict before deciding his mercy pe甄甄on, and can summon his medical records from the prison from the 甄me of his arrest. 3. Role in the 1993 Bomb Blasts Conspiracy Tiger Memon and Dawood Ibrahim as the Main Conspirators As per the case of the prosecu甄on, the 1993 bomb blasts were orchestrated by Tiger Memon and Dawood Ibrahim to seek revenge for the demoli甄on of Babri Masjid in Ayodhya(YakubMemon v. State of Maharashtra, (2013) 13 SCC 1 para 148, 1253). Both Tiger Memon and Dawood Ibrahim have been absconding and Yakub, brother of Tiger Memon, who was not the main actor in the conspiracy is being executed. Commuted Co‐accused played a larger role in the Conspiracy than Yakub Memon: Prejudiced on Account of being Tiger Memon's Brother The TADA Court convicted 100 persons and awarded death penalty to 11 persons. In appeal, the Supreme Court commuted the death sentences of all the convicts except Yakub Memon. In comparison to Yakub Memon, the 10 co‐accused persons whose death sentences were commuted planted the bombs themselves and played a much more cri甄cal and direct role in the actual execu甄on of the bomb blast conspiracy. Several of whom even travelled to Pakistan for arms training. This shows Yakub Abdul Razak Memon who is facing an imminent execu甄on only on account of being Tiger Memon's younger brother. Witness in the case Unlike the main accused, Yakub Memon surrendered before the authori甄es, a fact which has been confirmed on July 24 by the then officer in charge of the en甄re opera甄on, Shri B.Raman.