The hanging of Yakub Memon has ignited the debate around India’s stand on death penalty. I wouldn’t have ventured into writing this article, if not for the fact that a meme on Facebook which compared Yakub Memon’s background with Bal Thackeray provoked me into expressing my views on the topic.
In summary, this meme pretended that the only evidence against Yakub Memon was the fact that he was Tiger Memon’s brother, whereas Bal Thackeray was implicated in a number of reports but never saw the light of a conviction. I was enraged by this meme, not because I am a fan of Bal Thackeray, but this meme reflected the poor quality of debate around the death penalty and that should enrage a civil society like ours.
Judgement Vs Opinion
The judgement of Justice Sathsivam and Justice B.S. Chauhan upholding the death penalty for Yakub Memon is an elaborate pronouncement running into several hundred pages. The analysis of evidence is formidable and reflects careful investment of time, effort and inquiry. The involvement of Yakub Memon in the bomb blasts was corroborated by among other things, co-conspirators, several of whom turned approvers. Last but not the least, he was convicted because of the financial and logistical support he provided to the actual actors and not because he was Tiger Memon’s brother.
This brings me to my point. To merely read the judgement of Justice Sathsivam and Justice B.S. Chauhan in the case of Yakub Memon, it takes hours. To be able to fully understand this judgement and capture the finer nuances in the discussion of evidence and law, one requires several days of study. If that is what it takes for us to properly understand the result of the judicial process, imagine the amount of time and effort the actual judicial process itself requires. We need not endorse the outcome of this judgement, but we must respect the process, the time and effort of the bar and the bench which culminated into this judgement. Because believe it or not, this is hard work and requires unique talent, skill set, patience and enormous perseverance. The meme I refer to was an insult to this process.
One might be quick to think that I am justifying the death penalty for Yakub Memon. On the contrary, I think the provisions of the TADA Act, particularly with reference to admissibility of statements given before the Police remain highly questionable and reflect the dark times India has gone through as a result of terrorism. We must ask ourselves, whether our endorsement of such authoritarian legislation is fuelled by our blood lust and lack of courage, instead of a legitimate concern for national security. We must ask ourselves, if such legislation really serve the purpose of deterring terror attacks, or if they simply give a propaganda tool for our enemies to question the legitimacy of our state?
The authors of the meme and critics of like caliber (who seem to be the majority), having failed to establish their study of the finer details of the case against Yakub Memon, resorted instead to emotional and often rhetorical discourses, which simply put, are lies. Before we jump to urge freedom of speech and expression, please be advised that I recognize the right of these critics to present their critiques in the manner they see fit. All I am saying is that out of respect for our judiciary and for the sake of the late Yakub Memon, these critiques had to be of better quality.
Was Death Necessary?
So did he really deserve the death penalty? No one really disputes whether or not Yakub Memon provided financial and logistical support to the operation. But in the Priyadarshini Matoo case, the brutality employed by the Accused in raping and killing the victim was unprecedented. Yet, it led to a life in prison as opposed to the death penalty. In several cases of acid attacks, rape and murder, where the nature and extent of criminal depravity was far more severe, criminals have escaped the death penalty. So when is it that we consider a crime to be depraved enough to warrant death penalty? We do not have a clear answer even as on date.
The discretion is left to the court and this discretion is admirably scrutinized by elaborate procedures of appeal and review. Never the less the exercise of this discretion in our judicial history is fraught with inconsistency and therefore requires us to undertake some soul searching.
What made Yakub Memon such a monster? Is it because his actions led to the death of many, as opposed to Priyadarshini Matoo’s case in which the victim was one individual? If yes, then does the lives of many mean more to us than the life of an individual? These questions, which reflect a larger body of well founded questions around the death penalty demonstrate the flawed and inconsistent nature of our approach to the death penalty and the policy that governs it. How easy is it for such an inconsistent policy to face allegations of discrimination? Mind you, in a society that believes in rule of law, justice must not only be done, but also appear to be done.
Yakub Memon is dead and gone. I don’t know still if hanging him was the right thing to do and I don’t have a stand on the matter. However, a just society, a society built on the foundation of human values will construe the mere lack of a clear stand as grounds not to take human life. That is why in the Shatrugan Chauhan case, the Hon’ble Supreme Court held that delay in executing a death penalty convict can result in the reduction of punishment to life imprisonment. However, what I do know is that we need a better quality debate on the death penalty. I say this because I doubt his death will bring closure to this country. After all, even in the wake of this man’s hanging, we have many questions to ask ourselves about what our stand on the death penalty is.
To this, critics may ask me why someone of his background merits so much thought? Well, you see, the legitimacy of our power to take life is contingent upon the collective conscience we build around it. Assuming he deserved to die, Yakub Memon deserved to die at the hands of a society that doesn’t burst crackers and distribute sweets for having been provided with and then having exercised the opportunity to take human life (refer to the sentencing of Nirbhaya rapists). Yakub Memon deserved to die based on a policy around death penalty which was bereft of any scope for inconsistency, discrimination and misuse. He deserved to die at the hands of people who uphold death penalty with sobriety and dignity, instead of vulgar revelry.
Even if we give ourselves the right to take a life, we distinguish ourselves from violent criminals, by attaching a sincere crisis of conscience around these decisions. If we however grow to enjoy the taking of human life, no matter how deplorable, and don’t suffer a moral crisis every time we are imposed with this burden, then we are a sick society and our fight against crime was lost even before it began. India needs a better quality debate around the death penalty, failing which the punishment we impose, will certainly lack moral authority if not a legal one.
By Ashok G.V