Wednesday, June 29, 2022


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By Inderjit Badhwar

This editorial is not about the pros and cons of the death penalty. There are legal luminaries, some of the best in India who have, during this century and the previous one, debated themselves hoarse on the efficacy, ethics and morality of this primeval lethal approach to deter and prevent social and political crimes and enforce obeisance. Perhaps one of the sharpest brains on this subject is Dr Surya Deva, associate professor of law, City University of Hong Kong, who held forth with luminous erudition at a seminar on “Indian Supreme Court on Death Penalty: The Hero, or Not So Hero?”


He dealt—based on copious and painstaking research and without casting any aspersions on its integrity or motives—with the approach taken by the Indian Supreme Court in handing down death sentences, based on it having accepted, in principle, the standard that capital punishment should be meted out in the “rarest of the rare cases”. The eminent professor’s discussion was a scholarly critique of judicial decision-making of the apex court and whether it had been consistent in its approach.
The Mumbai blasts of 1993 that followed widespread riots changed the city forever

This subject has relevance to the Yakub Memon case because it threw up a startling new dimension to the use of the death penalty as a whole. Should “rarest of the rare” be the only criterion for sending a man to the gallows or do other mitigating norms— perhaps not even falling within the definition of pure law and jurisprudence—play a role in determining the fate of a criminal?
Most thinking people—at least those who lead their daily lives based on a concern for other human beings and the welfare of society in general, rather than driven by blind hatred and paranoia—believe that the rule of law must never be colored by political considerations, intimidation, misplaced sentimentality or the demands of lynch mobs. Most controversial cases which kindle national-level, high-decibel slanging matches—and the Memon case is one of them—are the real agni pariksha of our judges and judicial system. These are the occasions when they must stand up and be counted and, no matter what their point of view, make themselves heard loudly and clearly with the voice of reason and fair play as their strongest weapon.

Personally, I consider Yakub Memon neither a hero nor a coward and the courts have decided, on the weight of evidence presented to them, that he was a player in facilitating the 1993 Bombay bomb blasts, killing hundreds of innocent civilians. And he received his comeuppance.

But here is, perhaps, where the concepts of “rarest of the rare” and “extenuating circumstances” play cat and mouse with each other. The altered circumstances which have come to light, as Ajith Pillai points out in this issue’s cover story, indicate that—in a sense—Memon was the spy who came out of the cold and helped India solve the mystery that enshrouded the horrific Bombay bomb blasts.
The details are in the story that follows. Very briefly, they emerged following an account by the late counter-intelligence chief B Ramana legendary and highly respected official—who has vouched for the invaluable intelligence provided by Memon. Memon came back to India on his own volition following secret talks and spilled the beans on his own family’s involvement as well as the complicity of Pakistan in creating terror in India.

This was a breakthrough for Indian intelligence beyond its wildest imagination. It is ultimately due to this information, obtained with Yakub Memon’s help, that India has been able to establish a credible case in the world about Pakistan and ISI’s direct masterminding of terrorism in India, as well as its sources of funding. Raman’s account, interestingly, is backed by a former colleague—the Bombay bureau chief in 1993 when I was editor of India Today—the intrepid Masih Rahman who had been left mentally shattered by the Bombay blasts. Today, Rahman is indignant at the complete lack of recognition given to Yakub for his role in blowing the whistle on the Pakistan-backed terror network.

Yakub has been on the ISI’s hit list and a prime target for the D-Company as a betrayer and informer. In Kashmir and Punjab, former Pakistan-trained bombers and terrorists who surrendered and helped the Indian side as “friendly militants” were rewarded and protected by our forces. It is common the world over to make “plea-bargains” with former criminals and to protect informers who help law enforcement nail the larger gangs and ring leaders. That’s how mafia dons and foreign spies are mostly caught and locked up in the US.

In fact, the US has a witness protection program in which thousands of former criminals who turn “state’s evidence” (approver) or penetrate terrorist gangs are given new identities and protected around the clock. Also, police investigators and officers make “deals” with criminal informants to unearth or prevent a bigger crime and inform the prosecutors and judges to show leniency to the informer if the information yields results or promising leads.

If what Raman says is true—and nobody has denied his version—then, Yakub was also a whistleblower and an invaluable witness. Was this “extenuating” or “mitigating” circumstance brought to the attention of our courts by the prosecutors? Had that been the case, then, would the “rarest of the rare” doctrine apply to Yakub Memon?

These are questions which will continue to trouble us and make us think about our judicial system and law and order machinery. Does the state have a duty of standing behind a witness, whistleblower or informer or does it have a policy to offer him up for prosecution after it has extracted all the information? Under these circumstances, will informants and witnesses cooperate?
What I find troubling is that despite witnesses constantly turning hostile or disappearing or dying in high-level criminal cases, we have paid scant attention to the Law Commission’s recommendations on the subject or to these famous lines penned by Justice HK Sema in the K Anbazhagan vs Supdt of Police, (2004) 3 SCC 767] case:

“Free and fair trial is sine qua non of Article 21 of the Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of the public in the system and woe would be the rule of law.”

In the Best Bakery Case, the Supreme Court reiterated that the state has a definite role to play in protecting the witnesses “so as to avert the trial getting derailed and the truth becoming a mere casualty, to start with at least in sensitive cases involving those in power, those who have political patronage and those who could wield muscle and money power. As a protector of its citizens, the State has to ensure that during a trial, the witness safely deposes without any fear of being haunted by those against whom he wishes to depose,” a leading law journal recently commented.

That’s not a very complicated argument. Nor is it easy to disagree with. We may never get to know—for national security reasons—the details given to our intelligence agencies by Yakub. But we need to establish even posthumously—for the sake of historical veracity—the role he played in helping unearth Pakistan’s trail of terror.

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