By Swapan Dasgupta
I do not envy the judges of Supreme Court who will decide on July 27whether or not Yakub Memon, a prime accused in the 1993 Mumbai blasts case, will hang for his crimes on July 30. The death penalty, everyone recognises, cannot be handed out casually. Indeed, the Supreme Court has decreed the “rarest of rare” principle for awarding this most extreme punishment. The judges will have to decide whether Yakub’s crime fits the bill, whether there are mitigating factors and whether the due process of law has been followed in its entirety.
Yet, awarding the death penalty involves much more than following the letter and spirit of law—the job entrusted to the judiciary. There are larger questions of ethics and statecraft that go beyond the statutes. As a believer, I feel that the power of life and death doesn’t entirely belong to Man. Can Man assume the responsibility of God? And, at the level of statecraft, there is the troubling question of whether an-eye-for-an-eye principle is ethically sound, even though it meets the needs of natural justice and has endless theological endorsements. Yes, I happen to be in favour of Parliament voting out the death penalty and replacing it with life imprisonment without parole in the rarest of rare cases.
But all that is in the future. The law as it exists today, and existed at the time the serial blasts in Mumbai killed more than 250 innocent people, is quite clear about what punishment a convicted mass murderer should expect. There can be an understandable measure of sympathy for Yakub’s wife, daughter and parents but there is no question that the man in death row knew exactly what he was doing. His crime was not a consequence of hot-headedness; the mass murder was meticulously planned and clinically executed. Worse, it was undertaken with the full backing and logistical support of a country that is unequivocal in its hatred of India. Yakub isn’t therefore just a criminal; he is guilty of treachery too.
It is necessary to spell out the magnitude of Yakub’s crime—now established in a court of law—if only to underline the fact that a debate on the virtues or otherwise of capital punishment is ill served when conducted in the context of the present case.
One of the most compelling arguments against capital punishment stems from the fear that an innocent person may be put to death—a step that rules out any remedial action if innocence is subsequently established. In Yakub’s case, his deep involvement in the conspiracy to commit mass murder is not contested even by those who are pleading for leniency on the ground that he has written an essay in prison upholding the Indian Constitution. The case for commutation rests mainly on the fact that Yakub entered into some sort of plea bargain with Indian intelligence operatives in Nepal. No doubt the court will take this into account and the fact that he did reveal crucial details about the larger conspiracy—involving his brother Tiger Memon, the underworld don Dawood Ibrahim and the Pakistani agencies. But this can affect a final verdict on the extent of punishment. As to the fact that he has his hands covered in the blood of hundreds of innocent people, there is no second view. Even those spirit-of-Mumbai types who were loud in proclaiming the innocence of Dawood in March-April 1993 are no longer suggesting that there was a monumental frame-up of Muslims.
It is the nature of the case that prevents the ethical issues surrounding the death penalty from assuming primacy. In the past fortnight, the issue has become deeply politicised. The MIM leader Asaduddin Owaisi and the Samajwadi Party’s Abu Azmi have travelled the TV studios suggesting that Muslims are being singled out for the death penalty. They have implied that an entire community is being targeted by a state policy of selective indignation.
Owaisi’s larger agenda of building himself as a pan-Indian Muslim leader using a blend of lost glory and victimhood is pretty transparent. He has jumped into the Yakub controversy, not least because Maharashtra has emerged as a new recruiting ground for the MIM. And he has found unexpected support from those Lenin’s once mocked as ‘useful idiots’—liberals who connive in their own self-destruction.
Owaisi has positioned himself in a potentially win-win situation. If Yakub is indeed hanged, he will go to town claiming that the Indian state has wreaked vengeance on the Muslim community and is hand-in-glove with all those who want “Hindu terrorists” targeting Muslims to be let off leniently. In the emerging mythology of Muslim neo-separatism, Yakub may even be portrayed as some sort of martyr and a message will be sent to all young Muslims to never trust a communally tainted state.
In the event, Yakub’s punishment is commuted to life imprisonment; the crusading liberals will interpret it as a victory for justice and good sense. Some may even see it quite fancifully as an indictment of Prime Minister Modi. However, for Owaisi it will become a victory rally aimed at telling the Muslim community that it pays to espouse a ‘Muslim’ cause aggressively and without inhibitions. Owaisi is playing to get into the big league of politics and slowly and steadily he is getting there. The Yakub case will be just one more step up the ladder for him.
The fate of Yakub Memon is important at the human level—both for the Memon family and for the families of the countless victims of the butchery he was a part of. But, unfortunately, the case has a deep political significance. The surcharged environment leaves little room for the minusculity that would rather treat issues of life and death on a more rarefied level. The choices are impossibly difficult and we can only pray that the Supreme Court takes a view that upholds both justice and the national interest.
Sunday Pioneer, July 26, 2015