Should Judicial Processes be Seen Through a Religious Prism?

Yakub’s case should not be viewed through a religious prism; the larger discourse on terrorism will suffer a setback.

Media and Public Frenzy

• The raging media and public debate in July 2015 began with the coverage of Yakub’s review and curative petitions unfolding in the Supreme Court.
• At one level, a larger public debate about abolishing the death sentence latched onto the decision to execute Yakub.
• The posthumous publishing of an article by one of India’s top intelligence officers of that time, B Raman, somewhat complicated issues.

We live in an era where public opinion is increasingly defined by the impact of visuals and sound-bytes and views expressed in a hyper-active social media. The overriding tone and tenor of such discourse is often charged and excitable, even bordering the extreme. Regrettably, in the process, informed discourse can become a casualty.

The execution of Yakub Memon is another episode that confirms this worrisome trend. The competitive race for eyeballs and relevance in the electronic world forced the merger of various debates that should be segregated and assessed on their individual merits and demerits.

A quick recap of critical events over the last 23 years is imperative. On Friday March 12, 1993, Mumbai was rocked by a series of 13 coordinated bomb blasts. The first blast took place at lunchtime at the Bombay Stock Exchange. At the end of the day, there were 257 dead and more than 700 were maimed for life. It was one of India’s deadliest terror attacks.

Memons’ Flight

The operation is believed to have been masterminded by Pakistan’s ISI and executed through Dawood Ibrahim, Tiger Memon, his brother Yakub Memon among others. Noteworthy is the fact that key members of the Memon family, including Yakub, fled India between March 3 and 11, 1993, days before the blasts.

Just over a year later in August 1994, Yakub was arrested in Kathmandu. He came to consult family members and his lawyers about a possible return to India, and was taken into custody, literally minutes before boarding a flight back to Karachi.

In 1994, the trial proceedings began at a designated court in Mumbai. The trial finally culminated over a decade later in July 2007. Yakub was awarded the death sentence for his role in the blasts.

In July 2013, the Supreme Court upheld the trial court’s verdict, confirming the death sentence. In May 2014, the president rejected Yakub’s mercy petition. Weeks later in June, the Supreme Court stayed his execution on account of pending proceedings.

Raging Media Debate

The raging media and public debate in July 2015 began with the coverage of Yakub’s review and curative petitions unfolding in the Supreme Court.

On July 21, the Supreme Court rejected the review petition and mercy plea. Barely a week later, on July 29 the apex court rejected his curative petition. Almost immediately, the Maharashtra Governor rejected another mercy petition. Later in the evening, the president, after meeting the Union home minister turned down the final plea for clemency. The execution was now literally hours away -- on July 30 morning.

Events for once now outpaced the building media frenzy. Yakub’s lawyers resorted to a rare tactic. They petitioned the Chief Justice of India just after 1 am. He, in turn, called three judges and the Attorney General to hear a final petition seeking a 14-day stay after the rejection of the mercy petition. The court finally rejected this plea around 5 am. Hours later Yakub was hanged.

Multi-Level Issues

Beyond the facts, critical issues and questions need to be assessed at several levels. At one level, a larger public debate about abolishing the death sentence latched onto the decision to execute Yakub. The posthumous publishing of an article by one of India’s top intelligence officers of that time, Bahukutumbi Raman, somewhat complicated issues.

In his article, Raman expressed that “…if one also takes into consideration his conduct and role after he was informally picked up in Kathmandu, there is a strong case for having second thoughts about the suitability of the death penalty in the subsequent stages of the case.”

A public frenzy in the media built up on whether the government and intelligence agencies had reneged on a purported promise about not awarding the death sentence to Yakub. In all the noise, two important aspects were ignored. First, why was it that throughout the trial this aspect was never a critical part of Yakub’s or his lawyers’ defence pleadings? Could something of such import to a final decision between life and death be ignored by any accused or his defence counsels?

Secondly, was not the trial expected to award a sentence based on Yakub’s crime and his specific role in the blast? Even while expressing his views, Raman clearly writes “There is not an iota of doubt about the involvement of Yakub and other members of the family in the conspiracy and their cooperation with the ISI till July 1994. In normal circumstances, Yakub would have deserved the death penalty if one only took into consideration his conduct and role before July 1994”.

Owaisi’s Communal Tone

In this expanded debate on the question of abolishing the death sentence, one wondered whether Yakub was being perceived by some as a victim, instead of the perpetrator, of a horrific terrorist incident. AIMIM chief Asaduddin Owaisi took an evidently communal stance by saying,

…the decision is a huge disappointment and setback...If capital punishment given by the courts of law can bring closure to the innocent victims of the bomb blast then I demand that capital punishment should also be given for the original sin – of destruction and demolition of Babri Masjid.

— Asaduddin Owaisi, AIMIM Chief

Though widely condemned, it is difficult to miss the underlying contempt of the very judicial process that had accorded Yakub every possible opportunity he could avail of, including a midnight appeal hours before his execution.

Senior Congress leader Digvijaya Singh joined the bandwagon of controversial comments. He also referred to the “coincidence” of two funerals on the same day – the much loved “People’s President” Dr APJ Abdul Kalam and Yakub Memon!

Back in 1993, the blasts created a cleavage in Mumbai’s underworld gang, dividing it on communal lines. Following the incident Hindu members of D-company like Chhota Rajan and Shetty left Dawood’s gang.

Widening Social Faultlines

One worries today if every judicial decision and process is to be dissected with religious overtones, do we not run the risk of widening dangerous social fault lines?

Nor can the larger discourse on terrorism be forgotten. Terrorism has no religion and is utterly divergent to the universal values preached by every major faith. With its destructive impact and global footprint increasing, this aspect is bound to impact the discourse on whether the death sentence is to be abolished or retained in the statutes in India. In the meantime, to allow rhetoric to overtake reason and informed discourse on any sensitive issue, would be a mistake.

(The writer is BJP’s national spokesperson and a Supreme Court advocate)