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---------- Forwarded message ---------- From: shabnam hashmi <[email protected]> Date: 26 July 2015 at 00:22 Subject: PETITION TO PRESIDENT > KINDLY ENDORSE BY SUNDAY JULY 26 BY 12noon. WONT BE ABLE TO INCLUDE any > endorsement after Sunday 12 noon. President is out of Delhi from 28 morning > till 29th night. so petition has to be sent to him tomorrow. > > > SHABNAM > > ------------------------------ > > > > July 23, 2015 > > > > To, > > His Excellency, > > The Hon’ble President of India > > Rastrapati Bhavan, > > New Delhi > > > > Subject: New Mercy Petition Urging Stay Against Imminent Execution of Yakub > Abdul Razak Memon > > > > May it Please Your Excellency: > > > > This is a mercy petition for Yakub Abdul Razak Memon, who is scheduled to be > executed on 30 July 2015 as per the execution warrant issued by the TADA > Court. > > We, the undersigned, through this petition urge Your Excellency to stay the > imminent execution so that the substantive and fresh grounds raised herein > can be considered on merits. > > > > A. Preliminary Grounds > > > > 1. An International Commitment to abolish death penalty – We > the signatories of this mercy petition humbly make the statement that in > India death penalty cannot be imposed till such time Parliament of India > decides not to abolish death penalty and the reason for the same are as under: > > The universal declaration 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 Political Rights and its Optional Protocol and the > Covenant on Economic, Social and Cultural Rights. India became a party to > both these covenant by ratifying them on 27.3.1979. There are two optional > protocols to the covenant, the Second Protocol aims at the abolition of death > penalty. > > Article VI of Part-III of the covenant on civil and political 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 commutation of the sentence amnesty or commutation of death may be > granted in all cases. > > The President of India under Article 72 of the Constitution of India has the > power to grant pardon and to suspend, remit or commute sentence in certain > cases. It is in this way the constitution of India permits right of appeal. > Sub-clause of Article 6 of Part-III of the Covenant as referred above > provides that commutation 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 commutation 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 interpretating “may” where powers is conferred upon a > public authority coupled with direction, the word “may” which connotes > direction should be constitute 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. commutation of sentence of > death must be granted in all cases by President, till such time Parliament of > India decides that it will continue the penalty of death sentence. After > signing of covenant, the Parliament of India has not considered any amendment > in the Indian Penal Code for abolition of death sentence. > > The second optional protocol to the International covenant on civil and > political rights reads as under: > > “The States Parties to the present Protocol, > > Believing that abolition of the death penalty contributes to enhancement of > human dignity and progressive development of human rights, > > Recalling Article 3 of the Universal Declaration of Human Rights, adopted on > 10 December 1948, and Article 6 of the International Covenant on Civil and > Political Rights, adopted on 16 December 1966, > > Noting that Article 6 of the International Covenant on Civil and Political > Rights refers to abolition of the death penalty in terms that strongly > suggest that abolition is desirable, > > Convinced that all measures of abolition of the death penalty should be > considered as progress in the enjoyment of the right to life, > > Desirous to undertake hereby an international commitment to abolish the death > penalty, > > Have agreed as follows: > > Article 1: > > 1. No one within the jurisdiction 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 jurisdiction. > > Article 2: > > 1. No reservation is admissible to the present Protocol, > except for a reservation made at the time of ratification or accession that > provides for the application of the death penalty in time of war pursuant to > a conviction for a most serious crime of a military nature committed during > wartime.” > > As regards covenant we may submit that a covenant is a treaty and it lays > down a notable step forward in the protection of human rights within the > framework of the United Nations and constitutes the basic provisions of > International Bill of Rights. The two covenants also demonstrate the way in > which the United Nations is overcoming its earlier hesitations about the > enforcement of human rights obligations. It is almost an accepted provision > of law that rules of customary International Law which are not contrary to > Municipal Law shall be deemed to be incorporated in the domestic law. > > The plea of enforceability of various International covenant is now no > longer a matter of debate but should be considered to be firmly established > as a part of international law which the domestic courts are duty bound to > give effect to. > > > > 2. Present Petition Meets Procedural Requirements > > This Mercy Petition satisfies the legal requirements applicable to a fresh > mercy petition as per G. KrishtaGoud v. State of A.P., (1976) 1 SCC 157para10 > and clause VII-(A) of the Procedure Regarding Petitions for Mercy in Death > Sentence Cases, Ministry of Home Affairs, Government of India. > > 3. Death Warrant fixing the date of Execution is Illegal > > Yakub Memon was not given advance notice of the death warrant hearing and as > a result of which he and his lawyers could not participate 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 Petition (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 Duration of Trial and Incarceration 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 incarceration as a mitigating circumstance to commute the > death sentences of the other 10 co-accused persons, it applied a different > yardstick to Yakub. The Hon'ble Supreme Court has repeatedly held that > lengthy incarceration during pendency of appeal in death cases is a > significant mitigating circumstance which ought to be considered in > determination of sentence. In the interests of justice 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 Execution > > Yakub Memon has been suffering from schizophrenia for the last 20 years which > makes him unfit for execution. His mental condition has been certified 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 execution. Your Excellency is required to consider > the mental health of a convict before deciding his mercy petition, and can > summon his medical records from the prison from the time 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 prosecution, the 1993 bomb blasts were orchestrated by > Tiger Memon and Dawood Ibrahim to seek revenge for the demolition 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 critical and direct role in the actual execution 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 execution only > on account of being Tiger Memon's younger brother. > > > > Witness in the case > > Unlike the main accused, Yakub Memon surrendered before the authorities, a > fact which has been confirmed on July 24 by the then officer in charge of the > entire operation. He is the person who has provided information about > Pakistan involvement. His execution will weaken the case against the > involvement of the Pakistan agencies as there are no other witnesses > available. > > > > 4. Death Sentence of Convicts in other Terror Cases Commuted > > > > It is also worthwhile to note that death sentences imposed on the aides of > Veerappan (convicted and sentenced to death under TADA), Rajiv Gandhi killers > and Devender Pal Singh Bhullar have been commuted recently by the Supreme > Court. While the mercy petitions of Verappan's aides, Rajiv Gandhi's three > killers and Devender Pal Singh Bhullar were decided belatedly by the > President, thereby giving them the claim of delay jurisprudence, the Home > Ministry has moved swiftly to reject Yakub Abdul Razak Memon's mercy's > petition. It seems that subjective feelings are the basis of decisions which > lead to arbitrary actions. > > > > 5. Death Sentence awarded under TADA which was repealed for being Unfair > and Discriminatory > > > > Yakub Memon has been tried and sentenced to death under TADA, a special law > which was repealed by the Parliament on account of it having been used to > target the minorities. The Supreme Court in Vijaykumar Baldev Mishra v. State > of Maharashtra, (2007) 12 SCC 687para 30 also doubted the legality of > prosecutions pursued after the repeal of TADA. Given the highly compromised > rule of law credentials of TADA, executing Yakub Memon will perpetuate the > dark legacy of this law. > > > > Final Plea > > > > We most humbly request your Excellency to consider the case of Yakub Abdul > Razak Memon and spare him from the noose of the death for a crime that was > master-minded by someone else to communally divide the country. Grant of > mercy in this case will send out a message that while this country will not > tolerate acts of terrorism, as a nation we are committed to equal application > of the power of mercy and values of forgiveness, and justice. Blood letting > and human sacrifice will not make this country a safer place; it will, > however, degrade us all. > > > > Endorsed by > > > > Justice Panachand Jain (Retd) > > Justice P. B. Sawant (Retd) > > Justice A. Suresh (Retd) > > Justice K. P. Siva Subramaniam (Retd) > > Justice S. N. Bhargava (Retd) > > Majeed Memon (MP) > > Sitaram Yechury (MP) > > Prakash Karat > > M. K. Raina > > Ram Rahman > > Vivan Sundaram > > Brinda Karat > > Prof. Prabhat Patnaik > > Prof. C. P. Chandrasekhar > > Prof. Utsa Patnaik > > Madhu Prashad > > Anees Azmi > > Parthiv Shah > > Prof. Irfan Habib > > Prof. Arjun Dev > > Prof. D. N. Jha > > Harsh Mander > > Ovais Sultan Khan > > Shabnam Hashmi > > > >
