How Yakub Memon became the poster boy against death penalty

There is outrage over the hanging of Yakub Memon who was involved in the 1993 bomb blasts in Mumbai. And, there is also an outrage over the outrage which is probably more justified.

The unmindful debate over hanging has portrayed Yakub as the poster boy in the campaign against death sentence. By joining the skewed discourse over injustice to Yakub, activists for the abolition of death sentence may have only harmed the cause by linking Yakub's hanging with the movement against capital punishment. It cannot be ignored that all three hangings that have taken place in India after August 2004 have been of terrorists. It will be near impossible to mould opinion in favour of abolition with Yakub's face in the forefront only reviving memories of death, destruction and pain.

The condemnation of an order to hang a particular convict is different from a discourse on abolition of death sentence. It is not for courts to abolish the death sentence. Unfortunately, courts in India often get a share of the blame with public sympathy shifting from the victims of crime to accused by the time a long-drawn trial ends. Coming to the other group protesting specifically against death to Yakub, there is hardly any "rational" voice claiming Yakub was innocent. With there being no two opinions on Yakub getting a fair trial, the bald claim by some that he was innocent is meaningless. Then, there are people who claim he was hanged for the sins of his brother, Tiger Memon - who ironically is so far innocent in the eyes of law. It is beyond comprehension that such people believe the charge sheet to hold Tiger guilty but not the outcome of the trial which proved beyond doubt that Yakub was one of the "driving spirits" behind the blasts.

There is no doubt that everyone is free to differ from the view of judges. But to rely blindly on facts not tested or validly rejected during trial and appeal after hearing Yakub is unfair. In fact, some of the near convincing arguments are best countered in the Supreme Court (SC) judgement itself. The former SC judge, justice HS Bedi suggested that sentence should be reconsidered taking into account the newly discovered facts, of Yakub surrendering and helping agencies, as mitigating circumstances in his favour.

A glance through the SC judgement shows that Yakub "returning to India unlike other absconders" was noted as a mitigating circumstance.

For those who feel the court did not give due weightage to this fact, need to know that police had already announced a reward on him. Moreover, it needs to be pointed out that Yakub's statement (which he repeated during trial also) that Tiger was involved in the blasts was hardly of any help. As a general rule of evidence, the exculpatory (exonerating himself) statement by an accused cannot be used against a co-accused.

Unlike justice Bedi, the former SC judge justice Markandey Katju stressed that Yakub was convicted on weak evidence. He says confessions are generally extracted by torture and recoveries are planted. But both in this case had passed scrutiny during trial and appeal where Yakub got opportunity to earn an acquittal by creating "reasonable doubts".

The SC judgement records that it had been proved that Yakub was one of the brains behind the blasts, he disbursed money, he attended meetings, stayed in the building where bombs were stored and assembled, he was involved in choosing the sites for blasts, he emptied his firm's account just before the blasts and played a crucial role at various stages to carry forward the conspiracy. And it is nobody's case that the SC got the law wrong. As far as sentence is concerned, justice Katju had while confirming a death sentence in 2011 set down the yardstick stating "in some cases it should be given" otherwise it would "tantamount to repeal of the death penalty by the judiciary".