Don’t get me wrong on this, I support the death penalty – for rapist-murderers, child killers, terrorists and even acid-throwers. But I go with our Supreme Court’s caveat, that it should be reserved for the “rarest of rare” cases. Yakub Memon, who could be executed on July 30th for his role in the Bombay blasts of 1993 does not fit that criterion.
Punishment in a civilised democracy must balance between retribution
on behalf of the victim and the possibility of the rehabilitation of
the criminal. And, of course, it must meet the requirement of
proportionality, in other words, the punishment must fit the crime.
In my view, Yakub Memon was a second-level actor in the conspiracy
and not deserving of what is called the “supreme” punishment. The main
conspirators are Dawood Ibrahim, his brother Anees, Yakub’s elder
brother Mushtaq “Tiger” Memon and the unknown ISI officers who helped
them to stage the horrific Bombay blasts of 1993 that took the lives of
257 people. All of them are hiding in Pakistan. There were also others,
such as the ten small-time hoods who actually planted the bombs, others
who were involved in landing the RDX explosives and storing them at
various locations in Mumbai.
Yakub is not innocent. He was aware of the conspiracy and even aided
it, but he was not the main player. More important was his behaviour
subsequent to his escape from India and his role in exposing the
Pakistani hand in the blasts.
Just before the blasts on March 12, 1993, the Memon family slipped
out of Mumbai on a flight to Dubai via Karachi. During the Karachi
stopover, they slipped out and entered Pakistan without any immigration
formalities. As the heat built up, they were whisked away to Bangkok and
brought back to Pakistan after a few days, traveling on Pakistani
passports with new identities. Nearly 17 months after they fled, in
August 1994, Yakub was dramatically arrested in New Delhi along with
six members of his family, which included three women. However, Tiger
and another brother, Ayub, remained in Pakistan.
The government hailed it as a big catch. Before the magistrate who
remanded him, Yakub said that he had returned of his own volition to
surrender before the Indian authorities. The police, however,
showed him as being arrested at New Delhi railway station and the media
was told that he had been sent on a clandestine mission to trigger
blasts on Independence Day. Privately, police sources acknowledged that
Yakub had been “arrested” in Kathmandu. In reality, he and his family
were pushed across the border on July 28 and interrogated by the Intelligence Bureau. Thereafter on August 5 he was taken to New Delhi railway station and formally arrested.
Helping nail Pakistani role
The value of Yakub in proving Pakistan’s complicity in the Bombay
blasts was invaluable. Subsequently, Yakub persuaded six other members
of his family to return and face the law – his brothers Essa and
Suleiman and his wife Rubina, his own wife Raheen and his mother Hanifa
and father Abdul Razzak.
Between March 12, 1993, and
Yakub’s return, Pakistan played a cat and mouse game with India, first
denying the presence of the Memons in Karachi, then acknowledging it
when evidence was provided. But they claimed that the Memons, who had no
visas for Pakistan, had left for places unknown.
Yakub provided the Indian authorities with knowledge of the Pakistani
officials who assisted the family in Dubai and Karachi, as well as
details about the Pakistani passports and other identity documents
issued to them by the Pakistanis, thus nailing Islamabad’s lies. He also
had a few micro-cassettes of conversations of Tiger and his associates
that he had taped surreptitiously in Dubai and a few other items of
The information he provided played an important role in the trial of
the accused but instead of being treated as an approver of sorts, he
became a fall guy. Since the authorities did not have Tiger in their
hands, they wanted another Memon to hang.
There has been a pattern in India in relation to the death penalty.
Sometimes, really nasty criminals get amnestied, either by the Supreme
Court or the President. In March, President Mukherjee commuted the death
sentence of Man Bahadur Dewan who was sentenced to death for killing
his wife Gauri and two minor sons, Rajib and Kajib, in September 2002.
The President did so at the recommendation of the Home Ministry which
sought leniency because of Dewan’s poverty-ridden background. His
predecessor, Pratibha Patil commuted 30 death sentences, including
seven to murderers who had also raped their victims, several of whom
were children. The Home Ministry recommendations that must have led to
this Presidential action would probably make nauseating reading.
Politics in command
However, in cases of terrorism, courts and officials usually respond
to the blood lust of society. People accused of terrorism, even those
peripheral to the crime, are sentenced to death and hanged. In this
category comes Afzal Guru, who, as the evidence clearly showed, was a
side-show in the Parliament House attack case. Yet, somebody needed to
hang since the actual perpetrators had been shot dead and the main
conspirators were out of our reach in Pakistan.
In the Rajiv Gandhi case, too, Indian investigators only managed to
lay their hands on some Indian Tamil dupes of the main conspirators. The
chief villains – Prabhakaran and his intelligence chief, Pottu Aman –
were in Sri Lanka, the main culprit dead while her support team led by
‘one-eye Jack’ Sivarasan and his team committed suicide when they were
surrounded by the police.
So Nalini, Murugan, G. Perarivalan and Chinna Shanthan were sentenced
to death. Nalini’s sentence was commuted to life imprisonment in 2000,
and earlier this year, the sentences of the other three were also
commuted by the Supreme Court. The commutation had more to do with the
political pressure brought by various political players in Tamil Nadu,
rather than some change of heart of the system.
Politics is playing a role in the death sentence awarded to Balwant
Singh Rajaona, convicted for the assassination of Punjab Chief Minister
Beant Singh. His execution was scheduled for March 2012, but has been
stayed by the Home Ministry following appeals by the SGPC and
various Sikh notables of Punjab.
To reiterate, Yakub is not innocent, but neither does he deserve the
death sentence, given the background cited above. The charges against
him are not of participating in the military training that was given to
several of the conspirators by the Pakistanis, or of landing the RDX and
placing the explosives. He was charged with financing the blasts,
though his co-accused Mulchand Shah got just five years for the same
charge. Indeed, his co-accused in the three charges he faced have all
got lesser sentences for the same offence. Don’t forget, of course, that
the conviction took place under TADA, a law which has since been
discredited and repealed.
In Yakub’s case, the balance has shifted too much towards retribution and is disproportionate to his crimes.
It is for the Indian judicial system to reflect on whether the death
sentence has become a whimsical lottery, tilted a bit against the Muslim
community. Heinous criminals get away with barbaric crimes, terrorists
who are politically convenient are given the benefit of doubt, but to
make up for it, peripheral players in Islamist terrorist conspiracies
feel the full might of the law.
The Wire July 17, 2015