End capital punishment reflective of primitive mind-set and judicial mobocracy

Yakub Memon has been hanged. His crime was unquestionably heinous and deserved stringent punishment. But then so were the planned killings of the Sikhs spread over three days beginning November 1, 1984 in Delhi, the demolition of Babri Masjid on December 6, 1992 and the Gujarat riots of 2002. There has been no conviction in Delhi killings.This reinforces the perception that justice in this country is skewed. However, the issue here is not going into system that governs the Indian state but that of futility of capital punishment itself that has repeatedly been proved that it is no deterrent to crime. Moreover, various studies have established that ‘heinous crimes’ are mainly committed by the people from the weaker sections and the Hangman’s Noose fits these criminals better.There are some parallels between the hanging of Yakub Memon and Kehar Singh who was hanged along with Satwant Singh in the Indira Gandhi assassination case on the chilly morning of January 6, 1989.Four senior opposition leaders including Atal Behari Vajpayee, K P Unnikrishnan (Cong-S), Lt General (Retd) Jagjit Singh Arora and Surendra Mohan (Janata Dal) tried to reach Prime Minister Rajiv Gandhi hours before the sentence was carried out saying his hanging would be “senseless, inhuman and judicial murder”. Rajiv Gandhi was not in the Capital. They tried to contact Home Minister Buta Singh but were told that he had already gone to sleep. They sent a letter to the Home ministry seeking stay on his hanging. The government did not respond. In the Supreme Court, it was Ram Jethmalani who had pleaded the case of Kehar Singh.

Senior Journalist Arun Shourie who later rose to become Minister in NDA government wrote, “ Everyone I have had occasion to talk with about Kehar Singh case says there is no evidence against the man, that what the Supreme Court and the lower courts have read into the so called evidence is a strong of non-sequiters…The court, but not just the court, the court on behalf of society, was just going through the motions”. Pleading his case hours before the hanging in the Supreme Court, Jethmalani said, “I am arguing under the shadow of two hangmen”. The five judge bench headed by the Chief Justice refused to intervene. Here are the last words of Jethmalani in that case, “If this Court can’t intervene then it is just not my client who will hangtomorrow. Something much more vital will die. It will not be Kehar Singh who will be hanged; it will be justice and decency”.

Kehar Singh told his son on the eve of his hanging : “This has happened with the Sikhs before, it is happening today. It will continue to happen… there is nothing new that is happening to me… And if by my ‘Qurbani’ the Panth can be strengthened, it is for the good…I did nobody and harm”.

In case of Yakub Memon, a strong lobby argued against the futility of death penalty itself on the basis of concrete logic to prove that capital punishment was no deterrent to crime. This group included members from all sections of society. But the judicial system too worked till the last. Those in favour of the hanging argued every opportunity was given to the person till the last. But then there was fractured verdict given by the two judge bench of Supreme Court leading to the constitution of 3-judge bench within no time. Without casting aspersions, can’t it be termed a judicial mobocracy?
None would deny that opportunity was not provided to Yakub Memon. But there is another aspect that never came on the file. He had surrendered on the assurances given by intelligence officer B Raman which were not kept later by the state. He was the one who provided vital evidence to the Indian investigators about the involvement of Pakistan. It raises the very vital issue of trust deficit.In the context of capital punishment, there are questions that remain unanswered as these have been raised repeatedly about the basis of death penalty and the criterion of rarest of the rare cases. This is subjective and hence non-judicious. The most important case is that of assassins of Rajiv Gandhi. Missionary Grahm Green and his two infant sons were burnt alive in a jeep. The killer was awarded only life imprisonment. Both the crimes were heinous. Burning to death two infants is just inhuman. The wheels of justice move in their own way. The issue is not that of minority and majority.
For the healthy functioning of this biggest democracy in the world, the system should not only function unbiased but the people should feel it too. Sadly, that is not so. It is the studies that have reinforced this perception and have repeatedly been quoted in the context of death sentence Yakub Memon.
In Punjab, there is an example to the opposite where the convicts refused to file even an appeal against their convictions and rather wrote a letter to President of the country justifying their action. They celebrated their hanging before walking to the gallows. They were Harjinder Singh Jinda and Sukhdev Singh Sukha. They had been sentenced in the case of assassination of General (Retd) A S Vaidya in Pune and hanged on October 9, 1992. The Akali leaders submitted a memorandum to President R Venkataraman which was signed by Parkash Singh Badal, Gurcharan Singh Tohra, Simranjit Singh Mann, Jagdev Singh Talwandi and several others. They were declared as “Martyrs” and their bhog ceremony was performed at Akal Takht onOctober 18. The tradition to observe their bhog ceremony at Akal Takht continues. General Vaidya was the army chief during Operation Bluestar and gunned down in Pune on August 10, 1986.They wrote in their letter to Venkataraman: “When nations wake up, even history begins to shiver. During such momentous movement, a Banda Bahadur bids farewell to his peace-dwelling and destroys a state of oppression like Sirhind, a Che Guevera turns down a ministership of Cuba, takes to gun and entrenches against the enemies in the forest of Bolivia, a Nelson Mandela rejects the ideology of apartheid and prefers to spend his life in a dark prison cell. …And we have the privilege of being in the loving care and companionship of that unique general of the Panth Sant Jarnail Singh Bhindranwale, blessed by the valiant and transcendental visionary Guru Gobind Singh. We are tiny particles of dust of the numberless heroic jewels of the Sikh nation who walked on the sharp edge of the Dagger, the Khanda, given to us by Guru Gobind Singh. Only the chosen few get the honour of laying down their lives for the nation. We are proud of this honour”.For them capital punishment was honour and they kissed the hangman’s noose as the version later came out.The basic issue is thus the futility of capital punishment in the context of the functioning of the modern state. Modern state cannot be developed by people with archaic mind-set.

By Jagtar Singh