If capital punishment is not barbarous enough, once practiced in countries like France whose “off with the head” and the hideous guillotine smacked of middle-ages darkness, India’s decision to hang the 1993 Mumbai serial blast convict, Yakub Memon, on his birthday was barbarity beyond belief for a nation where Gandhi and Buddha preached compassion, tolerance and non-violence.
Memon turned 54 on Thursday, and at 6.30 that morning, he was hanged to death in a Nagpur jail. A day later, is his daughter’s birthday who will be 22 — a child Memon never saw growing up, for he was incarcerated all those years. Yes, 22 years in prison, and, horror of horrors, he was executed at the end of this long, long, often solitary, confinement.
Thursday also saw the cremation of a former Indian President, Abdul Kalam, a poor fisherman’s son who rose to hold the country’s highest office. Fondly called People’s President, because of his disarming humility, Kalam was a distinguished rocket scientist and had sent all mercy petitions — barring one — filed by convicts about to hang, back to the administration for reconsideration. Staunchly against capital punishment, Kalam used this as a ploy to delay executions.
The present President, Pranab Mukherjee, rejected not one but two mercy pleas of Yakub, while a three-member Supreme Court upheld his execution just hours before the hangman pulled the lever.
Memon was the only one of the 11 found guilty of the explosions –which left 257 people dead and many more wounded or maimed — to have been given the maximum sentence of death. The rest got life terms.
Strangely, India was alive to Memon’s last-ditch battles to save himself from the gallows, and the nation of over a billion citizens was sharply divided over whether Yakub should or should not hang. Though the division was often on the basis of religion, there were many, including prominent members of society, who stepped beyond such narrow parochialism to petition the government to spare Memon’s life. As far as one remembers, no other death-row convict had evoked such fiery debates.
Was it because, Yakub was only guilty of minor offences, like supplying arms or vehicles or money to those who masterminded the heinous crime — Yakub’s elder brother, Tiger Memon and Ibrahim Dawood — who continue to walk free in Pakistan and Dubai? Some judges and lawyers feel so. They aver that having failed to net the big fish, the authorities have settled for the small one.
There were others like a former Research and Analysis Wing officer, B. Raman, who averred that Yakub must not face the noose, because of mitigating factors. He is said to have voluntarily turned himself in to Indian law enforcers, helping them unearth information that for the first time linked Pakistan’s Inter Services Intelligence to the Mumbai blasts.
Justice H. S. Bedi, who retired in 2011 as a Supreme Court judge, wrote in a newspaper article that “the Supreme Court in India, as indeed courts all over the free world, are agreed on the fact that all mitigating factors in favour of an accused facing a capital sentence must be put before the court and that this obligation rests equally on the prosecution as well. It also appears that some commitment by the government or its agencies had been made to Yakub Memon and that he had fully cooperated with the investigative agencies after his arrest. I take it that this commitment would relate to the sentence that he would receive.
“Mr Raman writes that these mitigating circumstances ‘in the case of Yakub Memon and some other members of the family were probably not brought to the notice of the court by the prosecution and that the prosecution did not suggest to the court that these circumstances should be taken into consideration while deciding on the punishment… in their eagerness to obtain the death penalty’ “.
This brings us to the question of police reforms in India — which harassed and hard pressed to perform and show results sometimes gets hold of the wrong man and punishes him — if only to close a case. An important aspect of such reforms is that the role of the public prosecutor must been seen as distinctively separate from that of the police. He is not a police agent, but an invaluable officer of the court, an “agent of justice” (as someone once said), who is duty bound to place all facts before the judge. He is not there to trap someone and place him before the court, saying here I have caught the culprit.
In fact, the Supreme Court had observed in a 1999 case that “that a public prosecutor is not expected to show thirst in convicting an accused somehow or the other irrespective of the true facts involved in the case. The attitude of the public prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well.”
Beyond these reforms is the all-pervading need to remove capital punishment from the statue book, and never apply it again, however monstrous a crime may be. A life in jail is the most apt and humane punishment, not a rope around the neck.
Invariably, any discussion on capital punishment is eclipsed by the gravity of a crime, its nature and the fatalities involved. Time has now come to end this discussion and do way with state-sponsored executions once and for all.
A final question that ought to trouble every Indian with a moral conscience, what have we achieved by hanging Yakub Memon? Will this end terror? Will there be no crimes of passion? Certainly, none of these is within the realm of possibility. But, yes, what we have clearly accomplished is a sense of vengeful satisfaction of a seeing a man hang. Can there be times darker than this?
Gautaman Bhaskaran is an author, commentator and movie critic, who has worked with two of India’s best regarded daily newspapers, The Statesman in Kolkata and The Hindu in Chennai for 35 years, and who now writes for the Hindustan Times, the Gulf Times and The Seoul Times.
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