29/07/2015 9:31 PM IST | Updated 15/07/2016 8:25 AM IST

There Is No Real Mitigating Factor In Yakub Memon Case

MONEY SHARMA via Getty Images
Indian protesters shout slogans during a protest against the death sentence of convicted bomb plotter Yakub Memon, a key plotter of the bomb attacks which killed hundreds in Mumbai in 1993, in New Delhi on July 27, 2015. India's top court on July 21, 2015 rejected a final appeal by Memon, a key plotter of bomb attacks that killed hundreds in Mumbai in 1993, paving the way for his execution. AFP PHOTO / MONEY SHARMA (Photo credit should read MONEY SHARMA/AFP/Getty Images)

Death penalty is a polarising issue. But in India, the debate is more academic. In 68 years since Independence India has hanged only 52 convicts. These includes killers of Mahatma Gandhi, Indira Gandhi, General Vaidya, besides Kasab and the infamous Ranga-Billa of the Sanjay and Geeta Chopra case. Big death penalty societies, America and Saudi Arabia, beat that figure by a distance in a year, year after year. This year, though, Pakistan tops this league.

Since it is so rarely carried out, it is healthy that each death sentence leads to robust debate in India. You could argue that if we hang no more than two persons in three years, why not do away with death penalty? The Supreme Court has so far settled the debate at granting it in the rarest of rare cases. My limited point in the Yakub Memon case is, whatever we may now say retrospectively, he fulfils this criterion. I had investigated the 1993 Bombay blasts in detail for India Today, in partnership with my friend and colleague Maseeh Rahman, who has argued strongly for leniency to Yakub because he showed faith in the Indian system by handing himself to our courts and also because he was probably a victim of circumstances, 1992 riots having left Bombay's Muslims angry and frustrated. He wrote a detailed article saying this, which was published in The Indian Express under my watch in 2007.

"There was every evidence that the Memons and Dawood were in contact with the ISI much before the blasts."

But I continued to maintain a different view. There was every evidence that the Memons and Dawood were in contact with the ISI much before the blasts. As our investigation in 1993 had shown, the Bombay blasts were the ISI's first major terror strike in India. Indian officers, including M.N. Singh of Bombay Police, who cracked the case in fact saw it as a failure. The plot was truly diabolical. Blasts were carried out in sensitive areas, AK-47s and grenades were to be given to pre-selected people in Muslim or mixed localities, so that when Shiv Sainiks come for reprisals, they could be targeted along with the police. In 1993 Bombay Police didn't have even one rifle to match an AK. Another explosive-laden car was being driven to the police headquarters but was foiled just in time. It had terrorists carrying six AKs to carry out a massacre after the blast. The ISI plot was simple and diabolical: once these weapons had created mayhem and killed probably thousands of people and police in Bombay, all of India would be on fire. To create a build-up, some "Mathadi" (poor Hindu labourers) had been ritually killed (throats slit with small knives) and bodies left in sensitive spots to incite their militant clansmen into rioting.

If you read the detail again, the plot, what it achieved and what it fortunately failed to, there is no mitigating factor in the Memon case, and he should get no leniency as long as the death penalty is still awarded. The argument for or against the death penalty is a different one, and I might even have a different view on it. But Yakub Memon will make a bad plank to build the liberal case on.

The case going into what is an almost unprecedented fourth round of review in the Supreme Court at one level shows the depth and strength of our system of fairness and justice, but at another level it underlines the rise of the noise factor that our judiciary will learn to deal with. It's an incredible idea that so-called mitigating factors that defence lawyers never mentioned over a 20-year process suddenly surface in the week preceding the execution date.

"Yakub Memon will make a bad plank to build the liberal case on."

I did not know Mr B. Raman of RAW well. I am sure he was a man of great patriotism and professional integrity. But I knew Shantonu Sen of the CBI and M.N. Singh, who led the investigation, very well -- and they too are men of equally great patriotism and integrity. They will not deliberately frame Yakub. My question about Raman is a simple one. If he felt so strongly about Yakub, why did he not publish this article in 2007? If he was afraid it would vitiate the case, he could have spoken out in 2013 when the Supreme Court confirmed Yakub's death sentence and while Raman was alive. Or he could have put his arguments before anybody in high authority, the head of RAW or the Cabinet Secretary or even the Prime Minister. He did nothing of the sort.

I will not go so far as to say he lacked courage of conviction. But I am inclined to believe what two of his senior colleagues have told journalist Madhu Trehan, that Raman became a victim of what is called the Lima Syndrome. It is the exact opposite of the Stockholm Syndrome where you start loving your captor. In this case you develop a soft corner for your captive.

This week has given us further evidence that carrying out death sentences in any case with political, sectarian, even ethnic implications will now be nearly impossible. Unless it is done by stealth as in the case of Kasab and Afzal Guru. That is not something a civilized state can make the norm. The Akalis have been able to protect Sikh terror convicts Bhullar and Rajoana, though their sentences have been confirmed by the Supreme Court. Tamil parties have weighed in quite effectively for Rajiv Gandhi's killers because they are Tamil, never mind that they aren't even Indian. Wait till a Maoist convict heads for the gallows, as one would soon enough, and imagine how Left activists and the media will go kolaveri. On the other hand, the same divided public opinion will be united like a lynch mob when it comes to common hate figures, like convicts in the Delhi December 16, 2012 rape-murder case.

Reflect on the consequences. First of all, precedent of one concession will be sought to be carried to another, a point Asaduddin Owaisi has already made. Second, it will definitely divide India in the fight against terror and, ironically terrorists will achieve in their state-executed death what they failed to achieve when alive. And third, increasingly only the poorest, most isolated and socially hated few, with no clansmen to speak for them and whose cases activists won't find sexy enough to defend, will go to the gallows.

Time for a larger debate on the death penalty has now arrived. Certainly, if at all it is to continue, it should be limited to mass slaughter or planned terrorism. But then the state will have to look, sound, talk fair. Because the death penalty is still on the statute book, Memon has been convicted and his sentence upheld by the highest court, there was little justification in reopening the case now.

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