Rights

Yakub Memon, Maya Kodnani and the ‘Chain of Action and Reaction’

The media tells us we should now have a sense of “closure” but in the wake of Yakub Memon’s execution, I, like many others, have been trying to understand the logic of why some criminals get hanged in India while others guilty of similar crimes don’t.

On the day Memon’s writ petition against his death warrant was  dismissed by the Supreme Court, another bench decided that the assassins of former prime minister Rajiv Gandhi would not have to hang after all. The court, which had earlier commuted their sentence, rejected the government’s belated and somewhat half-hearted curative petition demanding that they be put to death.

By a curious coincidence, the Gujarat High Court has also just started hearing appeals in the Naroda Patiya case stemming from the Ahmedabad killings of March 2002. The trial court had convicted several persons connected with the sangh parivar for the cold-blooded massacre of nearly 100 Muslims. Among those sentenced was Maya Kodnani. She had been a minister in the state cabinet of Narendra Modi at the time she was arrested by the Supreme Court-appointed Special Investigation Team. Found guilty of leading the murderous mobs, Kodnani was sentenced to 28 years rigorous imprisonment and not death. The Gujarat government has taken the view that there is no need to seek the death penalty as there is (according to it) only indirect evidence linking her to the murders.

As a critic of the death penalty, I am as opposed to hanging Kodnani as I was to the execution of Memon (against whom, ironically, evidence showing his involvement in the heinous Bombay bombings was also only “indirect”). But I am curious about the social, judicial and, above all, political hierarchy of crimes that clearly exists in India and which determines both the course of prosecution and the nature of punishment that follows.

That there is such a hierarchy was obliquely confirmed by the Home Minister in Parliament the other day. During the debate on the Gurdaspur terrorist incident, Rajnath Singh attacked the Congress party for coining the term ‘Hindu terror’, and said this had served to distract the attention of the country away from actual terrorism, which, by his logic, is presumably non-Hindu.

The fact that the minister said this in the wake of Gurdaspur, where the terrorists had clearly crossed over from Pakistan, and barely a day after Memon was hanged, gave his argument a certain currency. Neither Memon nor the others held responsible for planning and executing the conspiracy were Hindu. The Shiv Sena-BJP government which came to power in Maharashtra after Justice B. Srikrishna had begun probing the December 1992-1993 Bombay riots first tried to disband his commission and then expanded its terms of reference to include the March 1993 blasts. What the commission established was that the bombs planted were a product of the riots which preceded them. They were, in other words, part of a ‘kriya pratikriya ki chain’, or ‘chain of action and reaction’ – to invoke the peculiar phrase Narendra Modi would use nine years later to link the mass killing of Muslims that was taking place across Gujarat to the burning of Hindu passengers at Godhra. “What I want is that there should be no action and no reaction,” Modi had added even as his state was burning, a curious wish list for a Chief Minister who could not undo the past but who definitely had the power to at least control the present.

As the Bombay riots and blasts – and Godhra fire and Ahmedabad inferno – show, Hindu terror and Muslim terror are twins and both are equally evil. There is, even in the Newtonian moral universe of ‘action and reaction’, a culpability that neither Memon nor Kodnani can evade. Yet one pays with his life while the other doesn’t. Both freely acted out their role in the ‘kriya-pratikriya ki chain’ but the same state that fought to take one life will now fight to save the other. Just as it fought to ensure the terrorists who led the mobs in Bombay in 1992-93 and Delhi in 1984 were never called to render account.

Memon’s execution, we are told, will help deter others from committing similar crimes but the effectiveness of this “deterrence” rests surely on what crimes are to be considered “similar”.

Shocked by the devastation of Hiroshima, whose 70th anniversary falls this week, Judge Radhabinod Pal of the Tokyo Tribunal trying Japanese war criminals believed there was no possibility of justice if those responsible for the deliberate murder of civilians by atomic weapons were also not put in the dock. His was not an argument about moral equivalence but of the deterrent value of justice. Future war crimes could be prevented only if the Tribunal was willing to treat the dropping of nuclear bombs or the firebombing of entire cities on par with the atrocities that the Japanese militarists were rightly accused of committing.

Pal was overruled by the other Allied judges but this tension between victor’s justice and the rights of all victims to justice would later be resolved – at Geneva, the Hague and Rome – with the adoption of the Geneva Conventions (after World War II), the International Court of Justice advisory opinion on the illegality of nuclear weapons (in 1996), and the establishment of the International Criminal Court (in 1998).

In India, sadly, we are not even prepared to recognise the gravity of the crime of communal violence and treat it on par with terrorism, let alone adopt legal remedies to deal with it. It is our national failure to come up with a deterrent to mass violence that allowed the 1984 massacre of Sikhs to take place, followed by Hashimpura, the Babri Masjid, Bombay and then Gujarat. If the government wants to end this chain, it must turn justice from being a product of faith – in which minority victims don’t count – into an article of faith for India and its state institutions.

This is an expanded version of an an article that originally appeared in the Sunday Times of India on August 2, 2015

Featured Image: Michael Coghlan, CC 2.0

  • NARENDRA M APTE

    (1) What the author is saying is true. We
    citizens should be mature to accept that there will be many individuals who are
    for abolition of death penalty and who plead for justice to all the victims. We
    should accept other citizen’s right to say what he wishes to say on the subject
    of death penalty. (2) Our society is not at all a perfect society.
    We have seen in the past how the State administrative machinery just failed to
    control violence (Delhi 1984, Mumbai 1993, Godhra 2002 & Gujarat 2002 are
    well-known instances). We have also seen how subsequently the guilty are not
    booked and punished. Hence the argument that death penalty should be out of
    criminal law provisions is justifiable. How the citizens respond to deterrent
    provisions in our Criminal Procedure Code is a matter of research. But I
    believe there is still no evidence either in favour or against death sentence. We
    should make efforts to establish a society where justice is done and is seen to
    be done by every victim of violence of all kinds.

  • K M Ajir Kutty

    The Memon execution, sadly though, is an occasion for pressing ahead with the demand for the abolition of capital punishment. ‘One law for us,another one for you’ kind of justice simply amounts to lawlessness

    • roh human

      Sir I am not sure what you mean by ‘One law for us,………….’. If you meant minorities or specifically Muslims Vs majority community, let me quote Outlook magazine of 10 Aug page 11 which gives the statistics as total hangings since independence as 1414 and out of that 72 (approx 5%) were Muslims. Sir, Mr Vardahrajan’s logic notwithstanding, handing out sentences is the job of Courts, yes manned by humans only but humans qualified to do their job. Please do not make an opinion on somethings based not based on facts

      • K M Ajir Kutty

        Say…the dictum one law for us etc…was heard loud and clear when the US unilaterally invaded Iraq. The same rings true of the Israeli occupation of Palestine too. The UN hasn’t been able to enforce any one of its resolutions with respect to Israel. ..Yes, judges can err…that’s why we demand that capital punishment be ended once and for all. If hanged it cannot be corrected. To err is human, to forgive is divine.

  • kurrien

    The article rings true. I am sure one day all these chickens will come home to roost. If Maya Kodnani has even a sliver of conscience, will realise that life on the outside is really not worth living considering she was resposible for the loss of even one life. This also goes for the other zealots and fanatics.

    • Jay Dee

      How many congress leaders who led murderous mobs in 1985 were convicted? This is at least great achievement that kodnani git 28 years sentence and her life and career finished for good. So the murder of 3000 Sikhs is not a big deal for you and you see no moral issues in supporting the party that led the pogrom?

      • Ram Dargad

        ”So the murder of 3000 Sikhs is not a big deal for you and you see no moral issues in supporting the party that led the pogrom?” I do not see any support to the Party or to the Sikh massacre in the comments of Mr Kurrien. Sikh massacre was equally shameful, if not more. Unfortunately none got punished for 1984 . One reason could be that there was no equivalents of Teesta Setalwad & a vibrant TV media in 1984. The author rightly focuses on recent developments in 21 century even though much worse things have happened in 20th century India.

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  • Sujad Syed

    What’s happening at Tilak Marg – Rule of law justice is getting sidelined, Arbitrariness is taking over!

  • Sujad Syed

    Respected senior SC lawyer, Dr. Colin Gonsalves, who opposes capital punishment, stated in the media that Bombay & Gujarat riots are clearly state terrorism & communal bias!

  • Sankar

    Why no justice for those who lost their lives in the Partition riots?? Who is to be held responsible?