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 30 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 onAugust 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 proof.
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 writer is a Distinguished Fellow at Observer Research Foundation, Delhi)
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