Why hanging Yakub Memon will not see justice served

Don't do it just to satisfy 'Collective Conscience'.

 |  4-minute read |   27-07-2015
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"He had come to Kathmandu secretly from Karachi to consult a relative and a lawyer on the advisability of some members of the Memon family, including himself, who felt uncomfortable with Pakistan's Inter-Services Intelligence, returning to India and surrendering to the Mumbai Police. The relative and the lawyer advised him against surrender due to a fear that justice might not be done to them. They advised Yakub to go back to Karachi." (B Raman's unpublished 2007 article, which was recently published by rediff.com)

This posthumously published article of B Raman, ex-senior officer of India's external intelligence agency RAW (Research and Analysis Wing), who was the key person in bringing Yakub Memon to justice in India, needs to be read in its entirety to understand two main issues of this whole case. First, that Yakub Memon was "willing to surrendering to Mumbai Police (with critical evidence against ISI)" and second how his "lawyer advised Yakub against surrendering fearing 'justice might not be done to Yakub (and his family)". On the first count, no matter what the Indian agencies might have tried on their own, it would not have been possible for them to create any case against the neighbouring agency, had Yakub Memon not willingly recorded, collected evidence and risked everything to carry and ensure its presentment to Indian authorities. Not only did this evidence tilt the balance in favour of India's case, it came to them with no effort or cost from within territories across the border. Further Yakub fully cooperated with Indian investigating agencies, persuading his family members to escape from their safe houses abroad and surrender to Indian authorities in a meticulously planned operation handled via Dubai. And none of this would have been possible had the Indian agencies not assured a fair deal for Yakub and his family. Yet ironically not only were the assurances reneged upon, the prosecution did not present the mitigating circumstances of Yakub's arrest (surrender) and his cooperation with Indian agencies, that should have got him some relief from the harshest of sentences, Yakub and family having become willing approvers in this case. Had Yakub not wanted to surrender and cooperate with Indian agencies, why would he then have collected and carried all the evidence against his own brother and their handlers, all the way from their safe house to Kathmandu? This is where the second part of B Raman's contention that "(Yakub's) lawyer advised him against surrender (to Indian authorities) due to a fear that justice might not be done to them" comes true.

The prosecution role in this trial seen as rigidly biased, his trial and sentencing subject to legal and logical questioning. Not only was his capital punishment awarded under TADA, which since stands repealed by Indian Parliament (for having been used to target minorities), he has been certified as a schizophrenic by jail medics, a condition held by the same Supreme Court rendering convicts unfit for execution. While his trial took 14 years to complete, having served more than 20 years in prison since arrest, there has been no material evidence against Yakub for the Mumbai blasts, his conviction being purely on the basis of "witnesses confession". And even as the Supreme Court commuted the death sentences for the other ten co-accused in the same case, taking such long periods of incarceration as a mitigating circumstance, it refused to do so for Yakub. Was then Yakub Memon tried under the "Collective Conscience Act", the same act that allows jurisprudence be decided by public sentiment?

There is no denying that the Mumbai blasts were horrific crimes against humanity, as were the Mumbai riots, and perpetrators should have got the strictest punishment. But subjective justice for Yakub will never be seen as justice served, when the scales of justice seem to have been tilted willingly against the one who intended to surrender and help the Indian agencies in nailing the main accused, believing that he would be fairly treated. This hanging, a serious miscarriage of justice, will not be so much compared against the commutation of similar sentences in other terror cases like the assassins of Rajiv Gandhi or of Bhullar, even while scales of terror cases may be different, the intent of crimes will remain the same; nor will the act of justice be compared to treatment of Kodnani and Babu Bajrangi by same organs of Indian justice. The hanging of Yakub will be weighed against his hope of fair treatment in India and of his belief in the commitments made by representatives of the Indian union when they sought his cooperation in building a case against the neighbouring agency.

When (and if, I hope not) they hang Yakub Menon, India will not have gained by hanging another man, they will have lost and opportunity to let justice prevail over a crowd frenzy. For satisfying 'Collective Conscience' does not always mean justice.

Writer

Saadut Hussain Saadut Hussain @saadut

The writer is a technocrat from Srinagar, Kashmir.

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