The imperious words of Supreme Court judge Anil Dave, who declared in open court that it was 'Raj Dharma' to punish the guilty, will ring in my ears for a long time. Also those of the Attorney General Mukul Rohatgi, who told the court, more specifically to Justice Kurian Joseph, "You are delaying the inevitable. This man has to go to gallows." Both were opposing petitions filed for staying the execution of Yakub Memon, convicted for the Bombay blasts in 1993. Would 'Raj Dharma' require sending Maya Kodnani and Babu Bajrangi also to the gallows?
Justice Dave had famously declared that had he been a dictator he would have forced everyone to read the 'Gita'. He clearly sees himself as Krishna goading the not-so-reluctant Arjuna in the form of Rohatgi to go ahead and do what must be done to uphold 'Dharma'. But 'Raj Dharma' also involves delivering justice. And if one goes carefully through media reports in the last few days, one cannot help but be troubled by several questions, questions which neither the judge nor the Attorney General are even prepared to discuss, let alone consider.
The most troubling of them all is why Yakub Memon was sentenced to death when the charge of criminal conspiracy against him, proved by association, does not even carry the sentence of death.
When the Babri Masjid was demolished in December, 1992, he was in Mumbai. When riots broke out in the city in December-January, 1992-93 and over 900 people were killed, a majority of them Muslims, the Gujarati from Kutch was again there in the city. But when 13 bombs went off in March, 1993, killing over 250 people he was in Dubai.
The prosecution claimed that Memons masterminded the blasts, planned it and then fled two days before the actual operation. Their lieutenants went ahead to carry out the blasts, knowing well that the well-heeled Memons, the Generals so to say, were not even in the country.
The Memons' version was that they were frequent visitors to Dubai, where almost half the family apparently lived. And since the situation in Mumbai was vitiated and Yakub could not even attend his office, and so the family decided to get away.
Neither the IB nor the CBI or RAW, which claim to have 'induced' Yakub Memon to return to India, had any inkling of either the impending blasts or of the Memons' role in it. They did not suspect anything even when the Memons' left the country and none of their informers seemed to have had any inkling of what the Memons' lieutenants were about to do.
But since none of the Memons was present in the city and it could not be proved that they had planted or detonated the bombs, they could at best be implicated for criminal conspiracy. The family itself seems to have accepted that one of the brothers, Tiger Memon, was the mastermind and had taken the help of the ISI in smuggling in the bombs.
But punishment for criminal conspiracy is not death. And Supreme Court judge Kurian Joseph was right in asking how in that case Yakub Memon was sentenced to death in the first place. It is strange that the point did not come up earlier.
In fact the Attorney General Mukul Rohatgi argued that even the Supreme Court could not raise the question after all legal remedies had been exhausted. Justice Anil Dave agreed with Rohatgi and saw no merit in the petition. According to reports when counsel for Yakub Memon pleaded, "I am in agony", Justice Dave chillingly retorted, "Let us put an end to the agony".
To an ordinary citizen, it seemed surreal. Was the AG arguing that even if there were procedural lapses, the Supreme Court of India must go by past mistakes, the letter of the law and not its spirit? That even when the court realises a mistake was made, it cannot correct it? Is this the system we have devised to administer justice? If so, God save us.
The perverse nature of the conviction is also disturbing because while as many as 100 accused have been convicted for Mumbai blasts (and none for the riots), Yakub Memon is the only one to receive the death sentence. So the man who was not even present in the country when the bombs were detonated is to be hanged but those who planted them in the first place can be allowed to get away?
There are many more questions which remain unanswered.
Take a few of them:
- How could the President reject the mercy petition in April, 2014? Mercy petitions are filed after exhausting all legal remedies. Since the Supreme Court rejected the curative petition on July 21, 2015, how could the President reject a mercy petition a year before that? Also because the mercy petition was filed by Yakub's brother and not by him. The MHA and Rashtrapati Bhavan erred in even considering the application.
- How did the trial court issue the black warrant in April, 2015 when the curative petition had not yet been heard? Why was the court in such a hurry? And was the trial court unaware about the curative petition pending before the Supreme Court?
- Who certified Yakub Memon fit to be hanged? The question was raised by Human rights activist and lawyer Yug Mohit Chaudhry, who claimed that Government's own panels of doctors had certified Yakub Memon to be schizophrenic, a serious mental illness. And under the law, the mentally or the physically ailing cannot be executed. Why has the trial court and the Supreme Court overlooked this?
- How was the black warrant issued in the absence of the convict? According to the Supreme Court's own ruling, the death warrant is required to be read out in the presence of the convict and the convict should receive legal assistance during this procedure. But in Yakub's case, the trial court did not think it necessary to secure his presence. Why? Was the court unaware of the apex court's ruling?
Does good behaviour count? All over the world prisons are designed to reform convicts. And good conduct leads to remission of the sentence. During the 20 years or so that Yakub Memon spent in prison, he is said to have acquired two Master's degrees. But that does not seem to have impressed the courts or the Constitutional authorities.
The fault must lie with us. People get the Government they deserve.