To hang Yakub Memon will be a collective folly

By Anuradha Bhasin Jamwal. Dated: 7/25/2015 11:04:33 PM

If the State and the lopsided legal justice system in this country have their way, less than a week from now another man will be sent to gallows. Yakub Memon, a well educated man with a fairly well to do background and a promising career as a chartered accountant till 1993, after having spent two decades in solitary confinement, may become yet another sacrificial goat to satisfy the political whims of some and the appetite for blood of many others. The execution would have a dis-illusioning effect on the minorities of the country, particularly the Muslim youth, who will find even lesser reasons for reposing faith in India's burgeoning economy for a better future and its justice system. Yakub Memon returned from abroad and is believed to have surrendered himself after his name surfaced in the list of accused simply to get his name cleared when he could have spent a luxurious life like his other family members including his brother Tiger Memon, deemed to be a mastermind in the Mumbai serial bombings of 1993 and an absconder in the case. His educational background and his voluntary return are not the sole reasons why he should be given a chance before being recklessly hanged, though these are the lesser significant factors that cannot be overlooked while analysing the quantum of his guilt and proportion of punishment his sentence holds out.
There are four main reasons why Yakub Memon must not be hanged.
The political angle is only one of them. Memon's sentence, third in a row in recent years and the first after Supreme Court struck down capital punishment in cases of delayed justice and 15 mercy petitions were commuted to death terms on this ground, has the potential of creating an impression that justice in this secular and democratic nation is harsher where the minorities in general, and Muslims in particular, are deemed as bigger culprits and only ones caught with the tag of terrorism. Prior to the recent string of hangings to satisfy the collective conscience of the society and as an act of vengeance against terrorism, Kehar Singh, accused of Indira Gandhi assassination, was sent to gallows in a hastily taken decision, which even a judge himself later lamented as an error. In striking contrast, Hindutva terrorists probably in a bid to appease chauvinistic majoritarian appetite are never meted out the same treatment. Barring in Mahatma Gandhi's assassination, no other Hindu involved in militancy related violence or political killings in post 1947, has faced execution. It is another matter that Gandhi wouldn't have wanted his assassins to be hanged and that this execution in post-independence India should never have set the wrong precedence. Many of those involved in heinous terror attacks and rampant communal killings like Maya Kodnani, Babu Bajrangi have not faced the gallows for killing 100 people. Dara Singh accused of brutal murders of Christian missionaries Graham Staines and his two sons was first awarded death penalty and later his sentence was commuted to life imprisonment. It took years to even bring such criminals to justice.
However, it took just 5 years to hang Satwant Singh and Kehar Singh for Indira Gandhi's assassination, even as evidence against Kehar Singh remained inconclusive. In striking contrast to this swiftness, till date, only about 447 people have been convicted for the 3,000 murders of Sikhs in 1984, post-Indira Gandhi's assassination, and only 49 of these have been awarded life terms. None of the convicts include the masterminds and bigwigs who engineered and facilitated the pogrom against the community. Similarly, barring the Maya Kodnani and Babu Bajrangi conviction, none of the other accused in the shocking Gujarat pogrom of 2002 has been nailed. Yakub Memon is convicted of the Mumbai bombings which killed 250 people that were said to be a retaliation of Mumbai riots of 1992 post-Babri Masjid demolition. The bombings were followed by 1993 communal riots. 900 people, majority of them Muslims, were killed in both these set of riots before and after the bombings. However, there is no justice as yet. Such double standards on deaths by bombings and deaths in riots do not only imply that as a nation, we are pretty much fine with rioters, marauders and butchery but only have a problem with bombers and gun-wielding groups, especially minority groups. Yakub Memon's hanging would be yet another assertion of this hypocrisy and create insecurity in the minds of the minorities.
A more important reason for not hanging Yakub Memon would be a scrutiny of his case history itself and the inability of the investigation agencies to establish his crime with support of evidence. Like in Afzal Guru's case, there is only circumstantial evidence against him. He was held guilty of arranging finances for the other accused who took part in the conspiracy of 1993 blasts. Such guilt even if proved is highly disproportionate the punishment he has been awarded. The only evidence against him is the statement of an approver and confessions of a co-accused who later retracted them. His main crime appears to be that he is brother of Tiger Memon said to be the main brain behind the 1993 bombings. Before the bombings, Tiger Memon made sure that his entire family was out of India and Yakub was safely ensconced in Pakistan from where is reported to have returned a year later. Like rest of his family members, he could have chosen not to. He may not be fully innocent but if he was at the centre of the crime plot, why would he have had the confidence to come back and surrender with an aim to clear his name. The Indian government is reported to have been party to his surrender with the explicit aim of serving the political interests of establishing the Pakistani hand in the bombings. However, the government of the day and its successors, ever since have chosen to exhibit his arrest as some kind of a heroic feat. It would be a travesty of justice to allow him to be hanged when his case deserves a re-trial.
Thirdly, to hang Memon next week would be grossly illegal. According to legal experts curative petition and other legal remedies still available to Yakub Memon are part of his rights as a prisoner condemned to death. The Supreme Court recently has held that death row convicts had to be heard first before the courts fixed the time of their execution. Not doing so was against the principles of natural justice. As per law, lower courts were bound to issue prior and sufficient notice to the death row convict to enable him or her to consult his advocates and to be represented in the proceedings on the issuance of the warrant. The Supreme Court has already held, sadly post Afzal Guru hanging, that both inordinate delay and extended periods of solitary confinement are mitigating factors against death penalty.
Fourthly, the very essence of the argument that death penalties act as deterrents is flawed. Death penalties are based on the principle of reform, as are the requirements of a civilized and democratic world order, but on the principle of revenge. They are inhuman and barbaric to the core. The case once again underlines the need for India to do away with the death penalty altogether. Needless to point out that death penalty in India is arbitrary, discriminatory and disproportionately used against the poor or the minorities. India is one of the 58 countries where death penalty continues to be legal. 140 countries across the globe have abolished the practice.
Justice system is based on the principle of reform not retribution, not associative justice as is the common assumption to hold Yakub guilty because of his brother's crimes. Justice system is based on the principle that no innocent must be wrongly implicated without evidence. What if Memon is only minutely guilty of being an accidental or deliberate part of the conspiracy or what if he is completely innocent with no concrete evidence to show his guilt other than being the brother of Tiger Memon and the submission of a witness who later turned hostile. Wouldn't we as a nation then have blood on our hands. We've gone down this road before and regretted. How many more people would have to be sent to the gallows before we as a nation realise how this eye for an eye system of justice is virtually turning us blind to logic and even legalities.

 

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