The Supreme Court bench that reviewed the death sentence of Yakub Memon had no doubt about his role as one of the conspirators who carried out the 1993 Mumbai blasts that cost 257 lives. Having waited for eight years after Yakub was sentenced to death, the Maharashtra government perhaps wants to get the job done quickly and has set July 30 as the day for his hanging.
An article written by the late B Raman, one of India's foremost terrorism experts, was published posthumously by Rediff.com after the Supreme Court confirmed Yakub's death sentence. It seems to have thrown a spanner in the works as the Maharashtra government got ready for his execution.
Raman, as the head of the Research and Analysis Wing's (RAW) international counterterrorism division, was involved in the process of getting Yakub back to India. And he retired soon afterwards. He had written the article immediately after the Terrorist and Disruptive Activities (TADA) court sentenced Yakub to death in 2007, but withheld its publication. Raman's article raises three points to support the argument that the death sentence awarded to Yakub was not justified.
Yakub "definitely had an assurance from us which is why he voluntarily came to Kathmandu, handed over so much data and details to us. We have betrayed him".
Raman says he was "disturbed to notice that some 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" before the sentence was passed.
Raman also says that Yakub cooperated with the investigating agencies and "assisted them by persuading some other members of the Memon family to flee from the protection of ISI (Inter-Services Intelligence) in Karachi to Dubai and surrender to the Indian authorities".
On the other hand, Raman had no doubt about Yakub's guilt. He says there was not "an iota of doubt about the involvement of Yakub and other members of the family in the conspiracy and their cooperation with 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".
Though Raman's heart may have persuaded him to have the article published immediately after Yakub's death sentence was handed out, his head seemed to have asked him to write to the editor of Rediff.com to withhold its publication. This represents the typical conflict of the head and heart many intelligence operatives face when they get entangled in conflicts between professional compulsions and value systems. On most occasions they take a cynical view of the whole issue but they find they cannot do so all the time. Yakub's case was probably Raman's moment of truth. It is not surprising because such conflicts affect even the most hardened operatives. In one such instance, in my own career, after the 1971 Bangladesh war, a moral dilemma regarding the life of one our East Pakistan agents turned into a physical ailment till I was counseled for a cure.
Not unexpectedly, fringe elements in the garb of speaking for the minority community and anti-death sentence lobbies have churned up the Yakub issue and made it murky. And some of the retired judges have come out with strong statements against the death sentence. But there are two points about such statements. They have all done so only after Raman's article was published posthumously. None of them have the responsibility of either the legal system that examined the case or the government elected by the people which have to ensure justice is done for the 257 innocent people who were killed in the blasts.
But more important are the views of members of the intelligence community who were involved in the case. They also seem to be divided on the question of hanging Yakub. Those who support Raman's argument have focused on the credibility of the assurance given by the intelligence agencies to Yakub. If such assurances are not maintained it not only affects the credibility of the operative and the agency, but also makes intelligence field operations a little more difficult.
I am sure they all realise intelligence agencies the world over are notorious for not keeping their promises. The amoral and secretive nature of their work makes it easy for them to do so. Therefore it would not be surprising if an assurance given to Yakub was not kept by them.
The 1993 Mumbai serial blasts case was unique not only for the huge loss of life, nexus between the criminal world and jihadi terrorism or its meticulous planning and execution. It also established the involvement of the ISI, and as a corollary, the Pakistani establishment, in jihadi attacks in the country. This makes it difficult for the courts to be lenient in this case.
The Mumbai blasts also showed the damage done to our unique syncretic national identity, perhaps irreversibly, after the destruction of the Babri Masjid. To this day jihadis use it to justify their gruesome acts to the faithful.
In Yakub's case, the judiciary had to think with the head and draw their judgment based on facts supported by evidence. Presumably, the defence would have put up the mitigating circumstances after the court found Yakub guilty, and before it passed the sentence. The justice system provides for clemency petitions to the executive authorities to consider issues of heart. This process is not yet complete; and our justice system, despite its delays can be expected to take an informed decision in this case.
So clearly, there is no room for religious jingoism of the Owaisi kind. Actually, it confuses the issue by bringing the polemics of majority versus minority politics and can harm Yakub's case. Let us hope better sense prevails because there is no doubt Yakub is guilty; the issue is only whether to hang him or reduce it to life sentence. Nothing more or nothing less.