Yakub Memon and Brady Violation

Death sentence to a terrorist.

Yakub Memon is a convicted terrorist (for killing 257 people and injuring three times more) and is scheduled to be hanged on 30 July 2015, since his last petition to Supreme Court of India, by way of curative petition has been dismissed. It is not surprising because by very nature remedy of curative petition is to correct or cure a mistake or injustice. However what is appalling is discovery of new facts as revealed by a former intelligence officer. According to these revelations (published in indian express newspaper) Memon is a flipper. He was in conspiracy with Pakistan, for terrorist attack but for the sake of his family’s safety he agreed to flip.

Memon family took asylum in India?

There are many details which can verify the authenticity of entire episode. One being that his entire family took asylum in Indian Embassy in Dubai when they were holding Pakistani passport. This was after they had settled in Pakistan for some time.

Now a retired Supreme Court Judge has questioned the sentencing. According to him Supreme Court should sou motu consider these facts as these are mitigating circumstances. I would agree with the retired judge. While we all know that any exculpatory information is a relevant factor in trial and for conviction and sentence we do not yet have an authoritative pronouncement like USA Supreme Court in Brady v. Maryland (1963) 373 US 87.

It is a high time that Supreme Court of India should make this clear that prosecutions in India is not only based on evidence but are actually fair trial as no information is suppressed. What it hinted in Shiv Kumar v. Hukum Chand needs to be amplified and reconsidered if necessary to explain the boundaries and periphery of disclosure of exculpatory evidence.  It would be a travesty not to do it, since Supreme Court has consistently held that a civil decree obtained by suppression of material fact is a fraud and therefore nullity. (See 1994 (1) SCC 1) There is no reason as to why this principle should not apply on conviction as well sentence. It is entirely a different matter if after considering these facts as well, Court upholds his death sentence.

Having said that, I am curious:

  • Why Memon did not step into witness-box?
  • Were these facts mentioned in his review or curative petition?
  • Why he has not yet filed second curative petition on these facts?
  • Has he mentioned these facts in mercy petition?

Since I have not read the record of the case, I know nothing about facts. But I have a suspicion. Flippers have a problem. They flip too quickly. It appears Yakub Memon did flip many times which made his deal with Government sour. Whatever may be the case, facts must come in open. Especially the part as to why his family preferred India over Pakistan even with all the indignity of being a family of traitor in India?

People in India as well as whole world is entitled to know, why Memon family did not trust Pakistan and preferred India, after trying to settle in Pakistan?

Being an educated chartered accountant, I wonder if Memon has or if not why not, prepared his memoir of whole account of his deeds? Is he still holding back something?
Will we ever know?
Here is an evasive interview with Yakub:

(More interested about debate on Brady Violations in USA, read Judge Alex Kozinski’s views on abovethelaw.com or just google him)

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