Law

Why Yakub Memon Should Not Be Hanged

He is guilty, but only of playing a peripheral role in the 1993 terrorist bombings. Hanging him serves no purpose other than satisfying the blood lust of society

File photo of Yakub Memon  in police custody. Credit: PTI

File photo of Yakub Memon in police custody. Credit: PTI

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.

Yakub’s return

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 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, Observer Research Foundation

  • Raja

    Hanging him will not cover the fact that Indian govt. hasn’t been able to get either Dawood or Tiger Memon.

  • Deepak Jain

    Dear Author, you intentionally slipped in the M word at the end even though it didn’t form a part of your arguments earlier. However, & surely, you must know that this is what will give you the needed TRPs. All the best

  • Sangram Sahoo

    Its true that India could not catch the prime conspirator but not punishing the co-conspirators will be a betrayal to the people who lost their lives. I like the author`s comparative argument but on long run it it will never hold for the security of our country.

  • Rathiraj

    Can this gentleman confront the victims and their families and explain that he did not killed and maimed hundreds but “just facilitated the massacre”. What a stupid logic by this writer.

  • Uday Barad

    Does Manoj Joshi mean to say that he knows much more than our judiciary? Does he mean to say that our judiciary have not thought of all the possibilities including “rarest of rarest case” situation before pronouncing the sentence?

  • V.Venkatesan

    The Home Ministry recommendations that must have led to this Presidential action would probably make nauseating reading, says the author.

    I disagree. The crime may be horrific, as any homicide is. Can anyone cite any murder which is less gruesome, or violent to the victim?

    Death penalty is reserved for rarest of rare cases. But the manner our Courts have interpreted this doctrine has led to many aberrations. Therefore, to simplify, one can say that a case becomes rarest of rare when all courts and Judges right from trial Court to the Supreme Court agree that the crime committed by the accused is rarest of rare. That is why, it is suggested that the appeals of death row convicts must be heard by a Bench of five Judges of the Supreme Court, and only if there is consensus among them, the convict must face death sentence.

    The zone of consideration of mercy petitions by the President, on the advice of Home Ministry, is entirely independent of the judgments of the Courts. The Home Ministry can take an independent view of the matter, in view of the convict’s poor social and economic background, which led to such a crime, and reach a conclusion, which is different from that of the Supreme Court. Therefore, each commutation of death sentence into life imprisonment by the former President Pratibha Patil must be examined from the point of view of the criminal. For instance, if the Executive considered whether the convict had shown a capacity to be reformed during his imprisonment, which was overlooked by the Courts, when they confirmed his death sentence, it would be a relevant factor. Secondly, if the Executive found that there was some dissent by any Judge of any Court which heard the matter, it would have been another relevant factor. Thirdly, if the Executive had reasons to believe that the convict did not receive proper legal aid during the trial and appeal stages, it could turn out to be another valid reason for commutation. There are indeed other valid reasons for commutation, and I don’t think they will sound nauseating, simply because the crime committed by the convict was gruesome.

    In Yakub case, his review petition was heard in an open court by the 3-Judge Bench of the Supreme Court for a number of days, and dismissed without answering the various contentions raised by his counsel. There are very convincing legal reasons why Yakub sentence must be commuted. The rejection of his review petition, without stating any reasons, must be a ground for a fresh mercy petition to the President.

    • S.A.Rahim

      it is correct,a fresh Mercy petition may be entertained and a five member judge should hear it and then only Execution is justifiable

    • Subhra Prasanta Das

      Very well said Mr Joshi. It has indeed diminished India as a state and blood thirst ( rather vengeance) has been quenched. He was indeed guilty but his case surely doesn’t fit into the rarest of rare case. This particular case certainly raises doubt about the country’s judicial system as a judicial murder has been committed. There was no direct evidence against him only, at best, circumstantial. The whole system was hell bent on executing him. He was being made a scapegoat as Sashi Tharoor rightly said, Yakub execution makes us murderers too.

  • prakash khamkar

    i dont like saying this but some near n dear one of this writer should hv died or injured in terrorist attacks (My father was injured in mumbai train bombings ) then he would hv known the pain as such anti nationals dont feel d pain of fellow countrymen …

  • NARENDRA M APTE

    I agree with you that death penalty should be done away with. But
    unfortunately we are not living in an ideal world. Some form of deterrence is
    required and the belief is that death penalty would do that. Of course, some
    may question this view favouring death penalty. But there is every reason to
    hope that at least some of those who have no criminal mind but who in a fit of
    anger, kill others would be deterred from committing such a crime.

    One more point is that we want justice to be given to families of victims
    even while accepting that award of death penalty to the guilty may not be the
    only way to convince such families of the victims that justice has been done.
    If the guilty is allowed to live then the question is ‘why should the society
    bear the cost of keeping the guilty alive for so many years’, defies a logical
    answer.

    Incidentally, if death penalty is to be considered as a necessary
    evil, we must review our law of pardon by the President of India to avoid
    delay.

  • Pingback: SC rejects Yakub Memon’s Curative Petition, likely to be hanged on July 30th | Live Law()

  • Sandeep Jain

    I suppose it really doesn’t matters to terrorists’ whether they are being hanged or not because when they join any outfit they, actually, oath for shadat or martyrdom. something else is needed to thought as punishment.

  • Ram

    The killing is creating another sect of people who are close to Yakub go against the Judiciary. Killing is no solution to anything.
    India should be different from IS.

  • Prem

    Totally agree with the writer. Yakub is just a scapegoat, the real perpetrators are sitting pretty in Pakistan.

  • Pingback: Quora()

  • Pathira Lolan

    In India with bombings a normal occurence an atack which just killed 257 and injured 700 odd is not rarest of rare occurance and hence abettors should be scot free

  • Pathira Lolan

    as per authors logic ther shouldnt be punishment just rehailitation

  • http://mkmathai.blogspot.in/ lisma52

    we rushed to hang afzal guru . are we rushing this case too ? should we hang any one at all is the base question

  • Kamal Mitra Chenoy

    When senior RAW officer B.Raman exonerated Yakub Memon and noted his assistance to Indian intelligence, to the extent of coming back to India, to hang him would be judicial murder. Why continue this barbaric practice of hanging in the 21st century?

  • Sai Chary

    I think The Supreme Court gave some sensible verdict in Yakub memon case
    Yakub Memon