July 31, 2015

Yakub Menon was murdered yesterday morning. Apparently it was his birthday. When his brother Suleman and his cousin Usman met him on Wednesday afternoon his words to them, as reported in today’s Indian Express, were – “Agar woh mujhey mere bhai ke gunahon ke liye sazaa de rahe hain, toh mujhe kabool hai. Par agar unko lagta hai ki mein gunehgaar hoon aur sazaa de rahe hain, toh yeh galat hai. Main bekasoor hoon.” (If they are punishing me for the sins of my brother, then I accept this verdict. But if they are punishing me because they think I am guilty, then it is wrong. I am innocent.)

Just because someone issued a stamped and signed order, or because someone weighed Yakub Memon precisely, or because others had prepared a sandbag to test his weight against a rope that was especially prepared and oiled for the occasion, or because he had been examined by a doctor to ascertain his health, does not mean that the event presented as his execution in the newspapers this morning was not a pre-meditated murder.

What is a murder?

A murder is a deliberate act that takes away the life of a human being without any due or justifiable cause. Yakub Menon, the man who was hanged yesterday in Nagpur Central prison, did not, under any stretch of imagination of what constitutes justice, deserve to be so killed. Not even under the colonial statues that currently provide for Capital Punishment in Indian law, in which I do not have an iota of faith or confidence. Not just because they are liable to be misused. not just because they are used disproportionately against the poor, against minorities and the defenseless. Not just because the death penalty has never acted as a deterrent against violent crime, but also because I, like many other people, believe that the state should not be given the right to take away the life of those under its power.

But even under this flawed, bad, stupid law, the evidence against Yakub Memon, as presented by the CBI (the prosecuting and investigating agency in this case) in court, did not qualify for what is called ‘the rarest of the rare’ offense that merits its application. The prosecution evidence, amounted, at most, to demonstrating violations of the provisions of the Arms Act by Yakub Memon. That, as pointed out by the journalist Maseeh Rahman, is the kind of offense for which Sanjay Dutt is, and deserves to remain in prison for the remaining term of his sentence. It cannot under any circumstance, be seen to be ,justifying the proclamation of a death penalty.

It needs to be stated, once again, that Yakub Memon sought to hand himself over to agencies of the Indian state with the conviction that in doing so he would be aiding the cause of justice. He did not do so in order to save himself, or some of his family members, as is being put out by some, because nether he, nor any other member of his family was in any danger at all, at least while he (and they) remained in Pakistan. The fact that his brother is apparently safe and sound in Pakistan till this day shows that Yakub too, would have been secure, and alive, had he chosen to adopt the course that his brother, Tiger Memon, had elected for himself, and advised Yakub to follow.

I recently heard several people say in a television channel (on NDTV during a programme anchored by the high priestess of the ‘middle ground’ – Ms. Barkha Dutt) say that he came from Pakistan, and made himself available to the Indian authorities, because he and some of his family members were in ‘discomfort’ in Karachi. What was this discomfort? They had a mansion, they had carte blanche from their ISI handlers to live as they saw fit. They even had access to finances and capital for starting up new lives and businesses. They were also sufficiently at large and at liberty to consider leaving Pakistan for Dubai, and to think of retuning to India, on Pakistani passports, with Indian visas. Neither their lives, nor their mobility can be seen to have been restricted in any way by their handlers. Was it mere ‘nostalgia’ for Bombay that made them take the supreme risk of exposing themselves to the vengeance of their Pakistani handlers? Does the city of Bombay or Mumbai or any city in india, or the world, deserve such generous doses of suicidal nostalgia? Do sane and rational people willingly endanger themselves and betray their own brother for the sake of Bhel Puri, traffic jams and the pleasures of Juhu Beach?

What the television commentators gloating over Yakub Memon’s execution are willing to overlook is the fact that the only rational explanation for the ‘discomfort’ that Yakub Memon and his family experienced can have to do with their remorse. We need to also remember that Yakub Memon began his co-operation with Indian agencies even while he was in Pakistan. His gathering of valuable evidence, (including photographic and video evidence) can only have stemmed from the confidence that this risky undertaking would go a long way in substantiating his claim that he and some of his other family members were innocent and did not bear any direct responsibility for the Bombay bombings. He was willing to act against his own brother in order to establish his innocence.

Am I making this up, or did Yakub Memon ever speak about his (and his family’s) motives for returning and handing themselves over to Indian law enforcement authorities ?

Even as recently as yesterday, a PTI report published here, for instance, in the Deccan Herald newspaper states that “Yakub had claimed he came back to surrender as he felt tortured by remorse.”

A Times of India report, also published after his hanging yesterday, reminds us of Yakub Memon’s outburst in court on September 12, 2006.

Here is a relevant quotation.

“Yakub Memon, who was hanged on Thursday for his role in 1993 Mumbai serial bomb blasts, had reacted with an angry outburst saying “innocent people are being called terrorists” when a TADA court here had pronounced him guilty on September 12, 2006.

After hearing the verdict, he had said, “We do not want to engage lawyers to argue on quantum of sentence…13 years have passed and innocent people are being called terrorists.”

“We have already been branded as terrorists and shall face the consequences,” said Yakub, the younger brother of absconding accused Tiger Memon, when he was convicted along with his brothers Essa and Yusuf by designated Judge P D Kode.

In another incident prior to the judgement, Yakub had lost his cool one day and ran menacingly before the then TADA Judge J N Patel saying: “Tiger was right in telling me that I should not go to India with family as we would be hounded.”

http://timesofindia.indiatimes.com/india/Yakub-Memon-on-conviction-Innocents-are-being-called-terrorists/articleshow/48278304.cms ]

How can the same man claim to be innocent of the bombings and claim remorse at the same time ? Who feels remorse for what they believe they have not done? In other words, what was Yakub Memon feeling remorse for? Clearly it was remorse, not for the bombings themselves, but for not doing anything to report what he had come to know about the identity of those behind them, which in this case included his own brother, Tiger Memon. The manner of Yakub Memon’s return clearly indicates that he was disturbed by the consequences of not doing the right things – that is – not reporting what he knew about the crime and those who had committed it. We cannot avoid considering the possibility that Yakub Memon thought that silence in the wake of knowledge of who exactly perpetrated those atrocities amounted to a kind of complicity. The ‘torture of remorse’ that Yakub Memon said he experienced clearly has a relationship to the difficulty of living with this specific kind of complicity. This is the complicity that renders culpable anyone who lives passively, in silence, with the knowledge of wrongdoing that they do not seek to address by an act of naming the culprit. In civics lessons in school, we are taught that this is good and upright citizenship. It is also the opposite of the time honoured principle of Indian politics, called ‘Bhai-Bhatijavad, the doctrine of shielding your brother, father, son, nephew, no matter what horror they may have perpetrated on to others. Yakub Menon may have taken the lessons of civics, as taught in our schools, too seriously, even as had neglected to pay attention to the lessons of politics, as taught in our streets, cabinets and legislatures.

Yakub and his relatives (other than Tiger and Ayub) had probably wanted to make a clean breast of things, in order to clear their own names, and perhaps to atone, and grieve, in their own way, for those who had died or been injured because of the bombings. Yakub Memon was probably a man who wanted to live for the rest of his days, and eventually die, with a modicum of honor and dignity intact. That is why he was willing to risk the wrath of his Pakistani custodians by gathering valuable evidence about their role in the bombings and also betray his own brother. He was willing to place the demands of his conscience over and above the ties of blood and the constraints of convenience.

Contrary to what has been screamed by some panelists from every Television studio, to hang Yakub Memon, is precisely NOT to do justice to the survivors and relatives of those who died in the Bombay Bombings. It is to insult the memories of those who died, because by hanging Yakub Memon, the Indian state admits firstly, to its incompetence in terms of bringing to book those who were actually responsible for this atrocity, and at the same time, secondly, it punishes the one person who went out of his way to actually aid the course of justice in this case. To punish the wrong man is not to do justice, but to magnify the quantum of injustice many times over. The survivors and victims of the Bombay bombings have been cheated, not recompensed, by yesterday’s hanging.

It is irrelevant now to ask which Indian agency, or individual official, gave Yakub Memon which guarantees or offered what kind of quid pro quo. Those who knew about these things, such as the late B. Raman (who was in charge of those who handled him for R&AW while he was in Pakistan) have had their (belated) say.

The CBI may now turn around and say that they never gave him any assurances, and they may well not have, because the job of giving assurances to people such as Yakub Memon was not theirs, but of other agencies, which are more accustomed to doing such things, because they operate in clandestine and secretive conditions. All this is actually besides the point now.

[ Yes, even B. Raman said that Yakub Memon had his share of guilt, as pointed out on NDTV by Madhu Trehan, but he also clearly implies that his actions subsequent to his return to India should be seen as reasons for setting aside the death penalty.

Judicial convention on the matter of awarding capital punishment ought to consider whether or not the defendant feels remorse, and whether or not the defendant has acted on the basis of that feeling to aid the course of justice. This is the corollary of the principle that determines the gravity of punishment in proportion to the degree of remorselessness and pre-meditation on the part of the accused and his motives for a crime.

H.S. Bedi, a retired judge of the Supreme Court must have been motivated by precisely these considerations (in the wake of B.Raman’s posthumous revelations ) while expressing his considered opinion that Yakub Memon did not deserve death. Additionally, Justice Joseph Kurien has raised significant points about due process while questioning the undue haste in awarding the death penalty even though all available judicial remedies in this case were yet to be exhausted. The fact that a three judge bench of the Supreme Court did not give these opinions or the petition presented by a number of eminent citizens their due weight is deeply unfortunate, and does not bode well for the future course of justice under the auspices of the Supreme Court as it is currently constituted. ]

What remains for us to consider is that the the Indian state apparatus (and lest we forget, the apparatus of a state includes its judiciary) has just awarded death to a man, who, to all intents and purposes, acted in a manner motivated by his horror and disgust for wanton terrorism.

What remains for us to consider is that not a single person has been punished in a befitting manner for the violence that shook Bombay in the wake of the demolition of the Babri Masjid, which took many more lives than the bombings that the Memons are accused of having a hand in.

What remains for us to consider is that the CBI is not yet able to muster any meaningful prosecutory response to the demolition of the Babri Masjid – (the act that unleashed the spiral of violence that included the Bombay killings of 92 and the Bombay bombings of 93) – a case it has been investigating for more than two decades now.

What remains for us to consider is that the NIA, under the present regime, has now reportedly started to go ‘soft’ on the prosecution of ‘Hindu’ terror groups. What remains for us to consider is that those responsible for the carnage of 1984 in Delhi are still at liberty.

What remains to be considered is that a Bal Thackeray can spend decades giving speeches and writing editorials that hold out naked threats of violence, and have murders and rioting occur in the wake of these threats, and still be given a state funeral, and that a Yakub Memon can hang after risking his life and reputation to implicate his own brother because of the violence that may have sickened him.

What remains for us to consider is that in this country, one man’s bloodlust earns him a gun salute, and another man’s remorse earns him the gallows. The caprice that marks this distinction has less to do with the gravity of the offense than it has to do with the identity of the accused. Get bail if you are Maya Kodnani or Amit Shah, hang if you are Afzal Guru or Yakub Memon. The equation is transparently simple.

What remains for us to consider is that the appeal to stay the execution was turned down with a reference to the  Manusmriti , which I suppose, will be looked up to for inspiring guidance the next time a matter related to a caste atrocity comes up for hearing.

What remains for us to consider is that that elusive thing called justice has now been shown up to be a sham in India, and that from now onwards, no one who is sane will have any reason to consider co-operating with any covert or overt organs of the state in this country if they want to see justice done, especially in the wake of what are called terrorist atrocities.

What remains for us to consider is that the manner of Yakub Memon’s death will not be a deterrent, but rather act an incentive to those who want to persuade young Muslim men that terrorism is the only option available to them as far as obtaining ‘justice’ in this country is concerned.

Someday in a future that now seems remote, some of the men who gloated over the gallows this morning may yet face judgement. Today, they will go about their business, saying “justice has been done”. Some day in the future they may be bleating for mercy, and if we can, I hope that as a society, we will be in a place where we shall find it possible in ourselves to grant them the mercy that is their due, (as much as it is for every person) in place of the forgiveness that they do not, and will not ever deserve. Mercy is not the same thing as forgiveness.

Some of them are murderers, almost all of them are accessories and accomplices to murder. The accessories to murder sit in high office, or, they are the chorus around those who do so. They are courtiers, politicians, journalists, judges, men and women of substance and standing. They appear on television, they waste our time. They shouted themselves hoarse because they wanted to be aroused by the spectacle of Afzal Guru’s death, and they have shouted themselves hoarse again, in the run up to the murder of yesterday morning, Time and again, when it comes to the crunch, some of them even say, “We don’t necessarily believe in capital punishment, but this time, this man must hang”. Their arguments for life are always abstract, but their passion for judicially mandated murder are always and unfailingly, tellingly concrete.

Was it their chieftain who issued the orders that killed a drugged woman on a highway ? And on another occasion was it this same man who is said to have smirked on the phone when a mob was threatening to kill Ahsan Jafri who was still talking to him. That mob killed Ahsan Jafri. They cut him down in front of his family.

Unlike Yakub Memon, the man at the other end of that telephone line has never given himself an occasion or an opportunity to consider remorse. We all know who he is. He worried instead about the fate of puppies who come under the wheels of automobiles on their inexorable drive along history’s highways. He was exonerated, or so they say, by the highest authorities, and now he talks to us every sunday on the radio. He wears bespoke suits, he is dapper, he is loquacious when he wants to be, and he is silent when he needs things to quieten down. He wants to clean things up, he says. Does his obsession for cleanliness have something to do with the fact that he knows that we can smell the stench of the morgue he presides over ?

When his time comes, (remember, it came for Pinochet) if it comes, if cold cases turn warm because time has cooked them, some of us will still draft the petitions that will need to be drafted, to spare even him and his cronies a tryst with the hangman. (Hoepfully, by then India will have said goodbye to Capital Punishment, sparing us the responsibility of asking for mercy for a man who only disgusts us.) But we will ask for mercy, if we have to, not because we believe that he and his cronies are innocent, but because we do not wish to have the blood of even murderers on our hands. We will say, ‘Let those who rejoiced when undeserving men went to the gallows, be spared the fate of those who hung. Let them live, and consider the gravity of their crimes, till their hearts give way, or their brains turn to mush, or their livers collapse under the weight of their misdemeanors.”

In asking for mercy, we will not ask be pleading for pardon. We will simply ask that these violent and unscrupulous men to be allowed to live out the remainder of their evil in solitude. That, we believe, will be their greatest punishment. To live and remember Yakub Memon, Afzal Guru, Ishrat Jahan and all those who died in vain, in the course of the realization of judicial sentences and extra-judicial assassinations, for no reason other than to assuage the bloodlust that some judges are getting monotonously accustomed to calling the ‘collective conscience’ of this land.

The fabric of that fabled ‘conscience’ has now worn way too thin from repetitive and systematic acts of semantic abuse. The hanging judges no longer give any attention to the meaning of the words they utter, nor does the current President, the last port of appeal, consider the meaning of his silence when faced with the call for clemency. They, the highest echelons of the judicial and the executive powers in India, are both prisoners and jailers of this fiction that they call the collective conscience.

Perhaps it is time for us to request another reprieve, to demand that at least this collective, the citizenry of this unfortunate and bloodthirsty state, be given a break from the charade of this thing called its conscience. That may be the only thing that will redeem us of the blood of Yakub Memon, which, as of yesterday morning, now stains us all.