The article of Mr B. Raman, the head of the Pakistan Desk at the Research and Analysis Wing (RAW), published on rediff.com adds new dimensions to the Yakub Memon case. It has raised questions about adherence to the principle of fair trial and the rule of law by Indian investigating and prosecuting agency. If Mr. Raman’s statements are true, Memon was informally apprehended in Kathmandu with the help of the Nepal police, brought to India by road and thereafter flown to Delhi by a special aircraft and formally arrested in old Delhi. Mr. Raman, who was coordinating the entire operation, has been extremely courageous to put in writing the details of the operation which exposes the illegality committed by the state agency with far reaching consequences on the human rights of the accused and the international human rights obligation of Nepal. The term ‘extraordinary rendition’ refers to various irregular methods employed by a state to bring individuals from another state disregarding the formal legal process of extradition.  

Nepal has abolished death penalty and for it to send someone to another country without ensuring that death penalty will not be executed amounts to violation of human rights of the accused. It seems that the Indian investigating agency has indulged in extraordinary rendition to do away with the requirement of providing assurance as was given in Abu Salem’s case to Portugal. Indisputably, India can impose death penalty but the accused was brought from a country which has abolished death penalty. Had the due legal process been adhered to, death penalty would not have been awarded. Should the state be disallowed to take advantage of deliberate illegality? Does such illegality constitute a mitigating factor to determine the quantum of punishment? The answer may be ‘yes’ in all probabilities. In Memon’s case the court was kept in the dark about the illegality of the rendition process and this can tantamount to the violation of the principles of fair trial.           

Extraordinary Rendition, a violation of human rights of the accused

An extradition treaty between India and Nepal was signed on 2 October 1953 that obliges the two countries to extradite accused persons found within their territory by following legal procedures. Countries having extradition treaties are bound to extradite accused persons in adherence to the due process of law. Since Nepal has abolished the death penalty, it is undoubtedly obligated not to extradite anyone without ensuring protection to the right to life of such person. There are a few cases of other jurisdictions which explain this obligation. The Judge De Mayer of European Court of Human rights (ECtHR) in Soaring v. United Kingdom (1989) observed that death penalty itself constitutes a bar to extradition unless the requesting state provides satisfactory assurances that the death penalty shall not be imposed or if imposed shall not be carried out.

India is not the only country that brings accused from other countries by the process of extraordinary rendition. In South Africa, once an alleged terrorist of Al-Qaida, Mohamed, was taken away by the US Federal Bureau of Investigation (FBI) from Cape Town with the help of state authorities. The South African Constitutional Court in K. K. Mohamed v. Republic of South Africa (2001) had found such rendition to be violative of the constitutional rights of ‘human dignity, to life and of not to be treated or punished in a cruel, inhuman or degrading way.’ In El-Masri v. Macedonia (2012) ECtHR found the act of handing over the alleged accused to CIA agents by the Macedonian authorities inconsistent with his human rights protection. In another case, officers of the Italian military security services (SISMI) and CIA agents were convicted in Italy on the charge of kidnapping an accused whose rendition was carried out from Milan to Egypt in February 2003 (Tribunale Ordinario di Milano -Sez IV Penale-, Sentenza No 12428/09, 4 November 2009). Subsequently the conviction was set-aside on the ground of state immunity. It is important to understand that rendition may amount to abduction if done without following the due process of law.

Power of Arrest under Indian law

Section 48 of the Code of Criminal Procedure 1973 (CrPC) allows the investigating agency to pursue and arrest any accused only within the territory of India. To bring an offender from another country, orders have to be issued by judicial authority as per Section 105B of the CrPC. Impliedly, the Indian investigating agency has not followed the process prescribed under Section 105B of the CrPC. In such circumstances, Yakub Memon’s lawyer might argue that he was kidnapped from Nepal and kept in illegal confinement till the time he was shown to be arrested. In fact, from the point of time he was under custody till the time he had not been shown to be arrested, he was definitely under wrongful restraint and wrongful confinement, both punishable under the Indian Penal Code 1860. His illegal detention also violated his rights guaranteed under Article 21 of the Indian Constitution. Although the validity of trial and conviction is not affected by irregularity in arrest, it is a mitigating factor that should be placed before the court.

Consideration for awarding capital punishment

In Bachan Singh v. State of Punjab (1980)the Supreme Court held that death penalty can only be awarded ‘in the rarest of rare cases when the alternative option is unquestionably foreclosed.’ In this case the Court further imposed an obligation on the courts to draw up ‘a balance sheet of aggravating and mitigating circumstances’ and ‘in doing so the mitigating circumstances have to be accorded full weightage.’ In Machhi Singh v. State of Punjab (1983)the Supreme Court laid down that court can award death sentence only after ‘according maximum weightage to the mitigating circumstances which speak in favour of the offender.’ The illegal arrest and detention of the accused is one of the mitigating factors which should have been placed before the court but the prosecuting agency with the aim of securing death penalty not only failed to enlighten the court on this point but also made false statements about arrest and custody.

Were all mitigating factors before the court?

Did the court really take into account all mitigating factors before awarding capital punishment? Mr. Raman’s article also informs us that Memon had extended his support during investigation in bringing the other accused to India to face trial, and most importantly helped India to establish before the world community the role played by Pakistan’s intelligence agency, ISI, in harbouring terrorism. Mr. Raman argued that the cooperation extended by Yakub Memon is ‘a strong mitigating circumstance to be taken into consideration while considering whether the death penalty should be implemented.’

The following mitigating factors were, probably, not known to the trial court while awarding capital punishment: (a) Memon was illegally detained in Nepal and brought to India; (b) the investigating agency had kept him under wrongful restraint and wrongful confinement till the time he was shown to be arrested; (c) the action of both India and Nepal resulted in violation of constitutional rights of accused; (d) the state of Nepal failed in fulfilling its legal obligation under international human rights law; (e) the state machinery in the zeal of securing capital punishment violated the international norms by not adhering to the process of extradition; (f) the Indian state machinery did not present the demeanour of the accused and the support extended by him during investigation; (g) the Indian state machinery made false statements about his arrest and detention.       

Moreover, Prof. Surya Deva of City University of Hong Kong has found after analysing 86 cases decided by the Indian Supreme court between January 2000 and October 2011 that the judiciary has applied the principle of ‘rarest of rare’ in ‘quite an inconsistent and arbitrary manner’ and the principle has outlived its utility. In fact, in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) the Supreme Court itself observed that ‘it can be safely said that the Bachan Singh threshold of rarest of rare cases has been variedly and inconsistently applied by the various High Courts’ as well as Supreme Court’. In this backdrop when the absence of minor mitigating factors can change life into death, such nondisclosure on the part of the state before the trial court, in my view, is a serious omission of the investigating and prosecuting agency which not only deprived the accused of fair trail but also prevented the judges from balancing the aggravating and mitigating circumstances to determine the appropriate quantum of punishment. Such omission can only be rectified if the Supreme Court either remits the case to the trial judge to re-determine the quantum of punishment in light of the facts newly revealed or if it exercises its power under Article 142 of the Constitution to determine appropriate quantum of punishment, death or life.

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• Sarfaraz Ahmed Khan, Research Scholar, City University of Hong Kong and Assistant Professor of Law (On leave), West Bengal National University of Juridical Sciences, Kolkata.