By Vidya Bhushan Rawat
Yakub Memon is executed in the morning of July 30th, at the Central Jail in Nagpur. The ‘nationalists’ are celebrating and anchors are ‘informing’ that we have send a ‘strong’ message against terrorism and that no ‘terrorist’ will ever think of attempting to redo it again. We saw his funeral in Mumbai where thousands turn up despite attempt by media as well as authorities to play it down. An anchor was preaching on his show from outside the ‘bada-kabristan’ in Mumbai thanking the police and media both for not making Yakub Memon a hero. He said, ‘why we should make a terrorist a hero, it means playing in the hands of Pakistanis and ISI’. Both the anchors were having a sigh of relief once the burial was done and crowd started dispersing. Mumbai Police had already banned TV cameras from the venue and none opposed it in the ‘national’ interest. Of-course, the anchor was ‘alarmed’ to see the huge crowd but felt that no untoward incident took place perhaps because of the alacrity of the Mumbai Police. It is another matter that these ‘parrots’ never realize why there were so many people and was there a message in it ? How do you read to an incident where over ten thousand people have gathered for the last rite of a man who is condemned to hanging despite loud cries of his being anti-national? Have all the people or I should say Muslims who participated in the burial of Yakub Memon become ‘anti-national’ as they turned up despite the threat to them as well as how police and intelligence agencies ‘read’ their participation. Is it a rejection of what is being spoken over our mass media about the man or is it show of deep regret and outrage that the man who came to India in the hope that judiciary will do justice and he would stand vindicated, was betrayed? Is it not sense of helplessness and betrayal which the Muslim community is feeling when they are being taught to ‘respect’ the courts and ‘rule of law’? The same Mumbai, a few years back, saw, official cremation of man whose goons on the street were responsible for the worst ever massacre of people in Mumbai in 1993 in the aftermath of Babri demolition.
Nobody is making a case for those who kill people in the name of caste, religion and even nationality but it is our duty to see that the persons who are charged must get all the available avenues to access law to defend him. We cannot make a person criminal or terrorist just because police or intelligence agencies say so or media start debating after they ‘produce’ some ‘break news’. Most of the time, it is happening because majority of those who are being charge-sheeted, accused or executed are coming from one particular community. It is the community which is facing the wrath of a highly communalized middle classes and ‘blood-thirsty’ media. It was not that those who were fighting for Yakub defended the indefensible terror attack on Mumbai. No human rights defender world over can ever defend a terror violence that kills innocent citizens for no fault of theirs. Unfortunately, much before the courts could have come to a final conclusion about Yakub Memon, the public opinion in India had started building up for his hanging and punishment. A person who is facing death penalty has a right to use all the available legal tools to protect him but here we tried to scuttle that. I can understand of common people talking revenge killing but do not expect it from the ‘opinion makers’ who have conveniently forgotten the history of communalism and who was the first ‘terrorist’ in independent India killing Gandhi in 1948. We use stories according to our suitability and in a very shrewd way media has become the mouthpiece of the ruling party and its real power centre ‘the Sangh Parivar’.
Though Memon was found guilty by the courts to but on many time the Apex Court has turned the earlier decisions of the lower courts upside down much to the relief of the individuals who would have been hanged. It is not me but legal luminaries like Ram Jethmalani, Prashant Bhushan, N.D.Pancholi and others who felt that the Supreme Court must hear the petition again. Many others like them felt that he should have been given another chance. Haven’t we seen how Balbir Singh who was condemned to death in the Indira Gandhi assassination case along with Satwant Singh and Beant Singh was not found guilty by the Supreme Court? Once a person is hanged there is no chance of rectifying the mistake as Justice Markandey Katju said many times that the Supreme Court too can make mistakes and if a person is alive that mistake can be undone. That is why human rights activists have opposed death penalty apart from many other factors which we will discuss in the article later on. Given the nature of accounts of the last days of Yakub Memon in the Nagpur jail, it is said that his behavior with other jail mates was wonderful and that they kept fast for him. The jail officials were also appreciable of his behavior and the sad part is that he remained chanting the fact that he was being hanged for the sins of his brother. Even the reports suggest that when he was being taken to the gallows the officials ask him to confess but he remained firm of the fact that he was innocent. When a Maulvi asked him to confess sin before being hanged Yakub told that he was innocent. It was clear that Yakub had high hopes on Indian judiciary and felt that some miracle would happen and courts would accept his innocence. It is often said that people often speak the truth before death and if Yakub’s continuous cry of innocence before his hanging shows anything it definitely speak something which we need to take seriously.
The best comment on Yakub Memon’s hanging came from Akar Patel, Executive Director, Amnesty International, India who said, ‘ This morning, the Indian government essentially killed a man in cold blood to show that killing is wrong’. He further added that “This execution will not deliver justice for the 1993 Mumbai blasts. It is a misguided attempt to prevent terrorism, and a disappointing use of the criminal justice system as a tool for retribution.”
Seriously speaking one has to understand whether retribution has ever helped any one or not. In the criminal justice system focus is too much on the ‘accused’ but no effort is made to help the ‘victims’. It is the victims who suffer and have to endure the pain for life but for the power it is the shortest route that once you ‘punish’ the ‘accused’ justice is done and case is closed. Ordinary people will not ask so many questions as an atmosphere is created around the accused hence forgetting their own pain they too feel once retribution is done, justice is done.
It is therefore more important for us to understand how ‘justice’ is done and who are the people face retribution. In an interview to Uttam Sengupta in Outlook Magazine, Anup Surendranath, Assistant Professor, National Law University, Delhi and head of ‘Death Penalty Research Project’ in India, says,’ ‘I would not like to divulge all the details till we actually publish the report. But clearly an overwhelming majority of the convicts on death row are from backward castes, dalits and minorities. Most of them are actually first-time offenders and not habitual offenders as is widely believed. Most of them were convicted on the basis of recoveries arising out of confessions in a police station (such confessions are inadmissible as evidence in a court of law). Over 80 per cent of them, I would say, were tortured. And of course virtually all of them are poor. We knew it intuitively but for the first time in this country we are crunching numbers and actual case studies to show the reality on the ground. We also have interesting findings on the categories of crimes for which individuals are sentenced to death, the quality of evidence used, the nature of legal assistance, treatment in prisons etc’.
Unlike the legal critiques whether Memon was complicit in the Bombay blasts or not, I am writing this purely on the basis of my concern as a citizen of India and as a human rights defender. And definitely for that a few things are important to suggest in the beginning before the ‘nationalists’ could shout loud and send me to Saudi Arabia a country I despise because of its wahhabism and Islamic laws of Shariat which remain brutal to the date, that the way issues are blown out of proportion and given a communal angle to defame and vilify a community is dangerous and detrimental to our national interest.
None is suggesting that those killed in the terror blasts in Mumbai in 1993 shouldn’t get justice. In numerous other cases we are seeking punishment to the guilty and state then feel that it has ‘fulfilled’ its duty. There is overemphasis on ‘punishment’ but nothing on the ‘affirmative’ action in rehabilitating the ‘victims’ of the violence. Yesterday in a panel discussion where I participated, one of the victim said that he is ‘happy’ with ‘punishment’ to Yakub Memon but that does not help the victims problems and issues which need positive planning and financial help to their honorable rehabilitation who have lost everything. India’s track record in providing necessary medico-psychological as well as legal assistance to victims is worth forgetting and it is time we need our focus on people too apart from bringing the culprit to justice.
That is why Indian political establishment need to address the issue seriously and do an introspection of the social attitude on the issues of violence at all level. First, as a society we need to understand that state is there to protect individuals from being violated but for doing that taking resort to violence will not solve the problem. There are two side of a situation related to violation of human rights or where a criminal activity has happened. First there is an accused or many of them and the state has to ensure that he or she is brought to law. This is the legal language and none talk of that state will give ‘punishment’ to him or them. Second side is the issue of victims who face enormous difficulty, mental disturbance and physical pain after the incidents that it is impossible for fill the vacuum of their lives yet society and state have to do their best to bring them to a stage where they can lead a normal life.
There is no doubt that the number of executions in India is definitely much lessor than many of the societies we love to compare ourselves. The Hindu fanatics and Hindu secularists remind us Pakistan and Middle East when they shout as how Yakub could have been dead long before if he had lived in any of the Islamic societies. There are others who have been suggesting why we are creating ‘obstacles’ for them when he is found guilty. My only submission is whether we ever think of a child in the family when make a mistake the parents scold him or at the maximum rebuke him or her but none seek an injurious penalty for their child. Even if the child makes a horrendous mistake, we always try to suggest,’ give him another chance for improvement’. It means when we scold the child, it is from the thought that he will become better or improve. When we say ‘bring him to justice’, some where we also feel that punishment means atonement and if we feel the person is not worthy for society we suggest life imprisonment. Now, after the execution everyone is sighing a relief that the ‘guilty’ is ‘punished. But is that true? Has Yakub Memon really been punished? He is dead now and not there to face punishment. Frankly speaking, it is his family which is now being punished for no fault of theirs.
For many, ‘Your guilt is based on your identity’. When Arvind Kejriwal and Anna Hazare shouted everything against the constitution, our parliament and political class nothing happen to them because at the end of the day everybody in the ‘power’ knew who were the ‘protesters’. Anna’s movement strengthened the upper caste hegemony over ‘vandemataram’ nationalism in India. Can we imagine similar protest in Bastar and would the police and administration treat the speakers the same way if they speak the same language. No, the prejudices in the minds of Indian elite are being strengthened and that is the threat perception for future. It is serious time of introspection for each one us including our Supreme Court, and government if they want to see the idea of a secular socialist republic India grow with equal rights to all the citizens of the country irrespective of their religious and ethnic status.
Reports suggest that capital punishment cases are rising in India. ‘India Spend’ story point out 1303 cases of death penalty between the year 2004-2013 as per National Crime Record Bureau statistics.
According to Amnesty International over 101 countries have abolished death penalty till July 2015. There are 22 countries which carry out executions. It says, ‘execution is the ultimate, irrevocable punishment: the risk of executing an innocent person can never be eliminated. Since 1973, for example, 150 US prisoners sent to death row have later been exonerated. Others have been executed despite serious doubts about their guilt.
In an detailed report by Chaitnya Mallapur, published in ‘India spend’ suggest how a UN General Assembly adopted resolution ‘towards the abolition of capital punishment and the protection of human rights when it endorsed a call for a worldwide moratorium on the death penalty’ in 2007 was opposed by India, China, Japan and United States. The article states that, ‘In 2013, nearly 778 executions were reported in 22 countries, a 14% growth over 682 executions in 2012’.
It need to be understood that death penalty has not reduced the crime rate anywhere and nor are the proven fact that militarism reduce criminality. World’s most peaceful countries are devoid of any such criminal practice and have always stood against capital punishment. Norway, Sweden, Denmark, Finland and many other countries which have made higher standards of human life and dignity the motto of their constitution have vehemently opposed death penalty and torture in custody. The crime record in these countries is much below than those where brutality in capital punishment is visible. Saudi Arabia, Iran, Iraq, Pakistan, Libya, have the highest and most brutal form of execution not just hanging but also through bullet squad and stoning but the crime has not reduced. If brutality in punishment had reduced crime rate we would not have seen any crime in any of the Middle Eastern societies for now and they would have been the ‘best’ countries to live and enjoy life but that does not happen. In fact, states continue to use the brutal retribution to justify their position and silence the opposition. Most of the time, it is the innocent dissenters from ethnic, religious or racial minorities who bear the brunt of this.
Many times execution is made media event to ‘project’ an image of the ‘strong’ state to send a signal to majority communities who feel ‘assertion’ of minorities as a threat. In democracies the governments and power elites have learnt to behave in ‘symbolisms’ and through a ‘diversionary route’. So, with execution you focus on the ‘guilty’ and rarely discuss the issue pertaining to the communities. India’s track record is dismal in terms of providing justice to minorities and marginalized. Since independence thousands have died in different communal riots in various parts of the country and yet nothing happened in terms of providing any soothing balm to the people. The victims of Bhagalpur, Delhi 1984, Gujarat 2002, Mumbai 1993 apart from the bomb blasts at Makkah Masjid, Malegaon and Samjhauta Express have not got any justice so far neither in terms of any support to them nor in finding out the conspiracy and bringing the culprits to justice. There are serious allegation leveled by a senior lawyer in Maharashtra how she was asked to slow down in many of these cases. In hundreds of massacres and daily humiliations of Dalits all over the country not a single case has reached to the culmination level despite the SC-ST Prevention of Atrocities Act. Those who demolished Babari Masjid have got the political power but never got any punishment so far. Nearly 10 million Aadivasis have been ‘displaced’ for the ‘well beings’ of their ‘fellow Indians’ who don’t even look towards them in great respect and yet when they protest and ask for an honorable settlement they are hounded as a Maoist. The facts are not great in United States as well where reports are coming out clearly how the racial discrimination is a much bigger and dirtier reality than so-called war against ‘terrorism’. Similarly, India might claim war on terrorism but at the home turf it is the Dalits and Aadivasis who face the biggest discrimination based on their birth at the hands of the caste Hindus who claim sole monopoly over our ‘nationalism’.
The research shows that most of those facing retributive punishment in Indian jails belong to Muslims, Aadivasis and Dalits for their ‘dissent’ against government policies and politics of the day. They are citizens of the country and want to live a happy life. They only ask for justice and honorable life like their fellow citizens. Will Indian law be applied in the same way as being applied to these groups? One senior judge quoted Manusmriti in the court of the law when delivering judgment about Yakub Memon. It is painful if not shameful when someone quotes Manusmriti in the Court because it is the antithesis of our modern day secular constitution. We want judgment based on our modern laws defined by Baba Saheb Ambedkar and not based on Manusmriti which give different kind punishment for one or similar act based on the identity of your birth or your caste. It means a crime committed by Brahmin and a Shudra or Dalit will get different punishment due to nature of your castes and not based on the nature of your crime.
At the end, I won’t speak much but the data by the National Law School about the Death Penalty unambiguously suggest that democratic India is very much punishing its people on the basis of the laws of Manu and now time has come to stand and be counted for a more civilized implementation of our secular laws and putting the authority of the Constitution of India everywhere as people of this country have faith in the Constitution but definitely not on those who believe in Manusmriti and its greatness. We can never get justice from those who have faith in any religious laws as they ultimately divide people and believe in street justice based on your caste and religious identity which is brutal in nature and against all international covenants and treaties meant for the protection of Human Rights.
Vidya Bhushan Rawat is a Delhi based Journalist and activist. He blogs at www.manukhsi.blogspot.com)