Wednesday, July 29, 2015

Jyoti Punwani: When compassion failed and baying for blood prevailed // Dilip D'Souza: Commissions of Inquiry - When governments don't want to punish terrorists

NB: For those of us who have observed Indian justice at work for several decades, it is clear that partisanship and bias is entrenched in the administration and the courts. All we need do is to compare the workings of the system in the case of 1984, 1992 (Babri Masjid demolition case); December 1992-January 1993 (Bombay riots for which the Srikrishna Commission was set up, and which named Bal Thackeray for instigating violence); 2002, (Gujarat, for which convictions were secured in the teeth of official complacency, and for which activists are being punished); 2008 (Kandhamal) etc., on the one hand; with the manner in which it has pursued the bomb blasts of 1993. 
It is not merely this or that party that is at fault, it is the very ideology of communal revenge that has seeped into our state institutions. I wrote about this in an article commemorating the thirtieth anniversary of 1984: The Broken Middle. Moreover, there is a blatant attempt at intimidating those judicial officials (and we are thankful that such persons exist) who attempt to discharge their duties - witness the threats issued to Jyotsna Yagnik; and the warnings issued to Rohini Salian, Public Prosecutor in the Malegaon blasts case. If the thinking public remains silent in the face of this shameless bias, it will have itself to blame if the Indian Constitution is rendered a nullity by hooligans and fanatics. "When it becomes ‘political’, justice breeds hatred and despair among those it singles out for attack. Those whom it favours, on the other hand, develop a profound contempt for the very value of justice, they know that it can be purchased by the powerful."  DS

Had Narasimha Rao had the guts, he would have acknowledged publicly in July 1994 that the only educated member of the infamous Memon family of Mahim had decided to return and help the government with evidence of Pakistan’s hand in the March 12, 1993, bomb blasts in Mumbai. The prime minister would not have cared about the howls of indignation that would have emanated from the Bharatiya Janata Party-led Opposition and from the families of the 257 people who died in the blasts. Yakub Memon and his family would have been arrested, but their bail petitions would not have been contested by the Central Bureau of Investigation – an understanding reportedly given to Yakub Memon’s first lawyer Shyam Keswani.

Had President Pranab Mukherjee had the guts, he would have accepted Yakub Memon’s second mercy petition – the only one filed by him (the first had been filed by his brother). The president had enough grounds to do so, both legal and ethical, spelled out in the letter written to him last week by a galaxy of retired judges, including some from the Supreme Court, eminent lawyers, artists and academics.

Had the Supreme Court taken the advice of one of its own former judges, Justice HS Bedi, it could have sent the death warrant back for a fresh look or looked at the new evidence itself, given the revelations being made over the last week. After all, it wasn’t some rookie activist lawyer giving the advice – it was a judge who had himself handed out a death sentence.

A 'travesty of justice': But all of this could have happened only if those with the power to show mercy, considered Yakub Memon worthy of it. Imagine a man coming back full of hope and faith in his country, a man who risked his life to gather proof against his own brother and the powerful Inter Services Intelligence, a man who convinced his family to come back too. Now imagine all of them thrown behind bars, rapidly disintegrating. Yet, that man never lost faith. "The investigating agencies have complete knowledge about me,’’ he wrote to the Chief Justice in 1994.  "I am a good citizen of this country. I have tried to help the government in whatever manner I could. In fact, when this case will come to its logical end and the truth will unravel, everybody will come to know about my humble effort and sacrifice. If my story is known, I’m convinced the court will set me free."

Yakub Memon’s daughter, whom he wanted to be brought up as Indian, and with whom he could never spend even a year, says he never stopped telling her that he would come home. Political activist Arun Ferreira, who was in Nagpur Jail, told that Yakub Memon would never join any protest because he didn’t want anything to spoil his spotless record and come in the way of his freedom. Former Supreme Court judge Markandeya Katju has called Memon’s conviction a "travesty of justice’’. If his conviction can’t be undone – Justice Bedi felt it could – doesn’t this man at least deserve mercy? Or is the baying for his blood too much to risk ignoring? By ruling parties, maybe. But by the courts?

The only saving grace of this sorry shameful tale of appeasing mob sentiment is that so many of our best minds have stood up against it. And hardly any of them is Muslim. That counts, because Yakub Memon’s fate is irretrievably tied up with him being a member of the Memon family.

If the March 12, 1993, blasts were motivated by religious revenge, there’s also a long list of savage crimes committed by persons motivated by HindutvaWhat of the men who gang-raped Bilkis Bano, killed 14 of her family members, flung her three-year-old daughter to the ground, smashing her head in the Gujarat savagery of 2002? They were sentenced to life. Did the "collective conscience’’ of the nation want these accused to hang?

We don’t know because there was no baying for blood in these cases. Not that there should be. The death penalty spells revenge, not justice. But the fact is such a clamour becomes loud enough to be noticed only when made by the majority community, it would seem.

A travesty: There’s yet another travesty in Yakub Memon’s case – the date of his execution, which seems to have acquired some sacrosanct value looking at the way everything is being hurried through. July 30 is his 53rd birthday. So we watch helplessly as a man whose culpability – or at least the extent of it – even judges are not convinced of, is hung from the noose. The Shiv Sena might celebrate as it has in the past. The BJP might do so too. Meanwhile, the Mumbai police has as usual asked Muslims to keep the peace, as if they are the only ones who pose a threat to it.

Indian Express editorial: Yakub Memon shouldn’t have been hanged

Shashi Tharoor: Hanging Yakub Memon Makes Us Murderers Too

Dilip D'Souza: Commissions of Inquiry - When governments don't want to punish terrorists Consider the terrorists of November 1984 or December 1992 and January 1993. Now contrast with those of March 12, 1993.

Sometimes one comment says it all. In a recent argument with someone over the death sentence of Yakub Memon, the massacres in Bombay in December 1992 and January 1993 came up. Nearly a thousand of my fellow Indians were killed in those ghastly two months.

“Oh, those guys were punished," was this person’s airy handwaving response. “Really?” I asked. “Can you name one person who has been punished for those crimes?” To which this person said two things: First, “Yakub Memon!” Second, “The rest are all named in the Srikrishna Commission report, why don’t you read it?”

So let’s get this straight. This person believes that those responsible for the slaughter in 1992-'93 have been punished. That Yakub Memon is one of those responsible. That the Srikrishna Commission report names all the murderers, and names Memon as well. Add one more: since in reality pretty much nobody has been punished for those killings, this person also believes that merely being named by Srikrishna constitutes punishment. Wrong on all counts. And, therefore, a more twisted world view would be hard to find. You’d think.

Justice BN Srikrishna was asked to inquire into those massacres in Bombay. He submitted his report to the government of Maharashtra in 1998. I have read it, actually. No, his report does not mention Yakub Memon. No, Memon had nothing to do with the December 1992-January 1993 killings – unless you’re one of those who falls for the specious and perverted argument that one atrocity justifies another. Entirely separate from Srikrishna’s inquiry, Memon was arrested, tried and sentenced for his role in the bomb blasts that happened two months later, in March 1993.

But yes, Justice Srikrishna’s report does name people. Among them, Bal Thackeray. Justice Srikrishna famously calls him “a veteran general” who ordered men from his Shiv Sena to carry out “organised attacks against Muslims”.

Crime and punishment:  Here’s the real issue: the great majority of those whom Srikrishna’s report names have never faced justice for their deeds, let alone being punished. Far from it, some even went on to greater successes in their political careers. Case in point: Madhukar Sarpotdar, a mere Shiv Sena MLA when the army took him into custody for carrying guns and swords in a riot-hit area at the height of the violence (January 11, 1993). In 1995 and 1998, this same Sarpotdar was elected to the Lok Sabha – my MP, as it happened. There’s plenty more to say about Sarpotdar, but I’ll save that for another day.

For now, perhaps you’re wondering why those who were named in Srikrishna’s report were never punished. There’s a simple, almost tautological reason for that: what he conducted was an inquiry, as spelled out in the Commissions of Inquiry Act, 1952 – and such an inquiry is not a court of law. Period.

True, an inquiry under the Act has “the powers of a Civil Court” in various respects. But the judgement in a 1977 case before the Supreme Court (State of Karnataka vs Union of India and Another) spells out what this really means (actually referring to an even earlier judgement, from the Nagpur High Court in 1954). The judges observed that “the Act merely clothes the Commission with certain powers of a civil court but does not confer on it the status of a court … the Commission is only fictionally a civil court”. What’s more, “there is no accuser, no accused and no specific charges for trial before the Commission, nor is the Government, under the law, required to pronounce one way or the other on the findings of the Commission”. There you have it. Not only is an inquiry not a court of law, not only has it no powers to punish anyone – but our own law permits our governments to totally ignore an inquiry’s findings.

Commissions and omissions: Have you ever wondered why, when various particular episodes of terrorism in India happen – the massacre in Delhi in 1984, the massacre in Bombay in 1992-'93, the massacre in Gujarat in 2002, and more – governments promptly set up Commissions to inquire into them? Wonder no more. The reasoning goes like this: Governments know well, like you know well, that our homegrown terrorists, with their intricate political connections, are responsible for all this slaughter of Indians. Naturally, they can’t be touched. Yet there remains a degree of public outrage over the slaughter, at least at the time it happens. Therefore, quickly deflate that outrage by announcing an Inquiry Commission. Let it drag on for several years. By then, the outrage has dissipated, memories of the slaughter have grown fuzzy, and anyway the inquiry can be ignored.

And what’s more, there will even be some yahoos who will run around telling people that an inquiry equals punishment. That’s the very Indian story of every inquiry like Srikrishna’s. Don’t believe me? Consider only that there have been nine official inquiries – I’m not making this up – into the 1984 massacre of 3,000 Indians in Delhi alone: Marwah, Misra, Jain-Bannerjee, Kapur-Mittal, Ahuja, Potti-Rosha, Jain-Aggarwal, Naroola, Nanavati. Nine inquiries, all completely ignored. Not one has resulted in punishment for anyone who killed any of those 3,000 Indians in 1984.

In exactly the same way, Srikrishna’s report has been completely ignored. Seventeen years since it was submitted, and it hasn’t resulted in punishment for anyone who killed any of those nearly 1,000 Indians in 1992-'93.

Compare and contrast: With all that as context, let’s juxtapose two situations. After the terrorism of December 1992 and January 1993 – the carnage that killed nearly 1,000 Indians – we had an inquiry and nobody has been punished for those crimes. After the terrorism of March 12, 1993 – the bomb blasts that killed nearly 260 Indians – we had no inquiry. Instead, there was a long trial and many convictions, including that of Yakub Memon. Perhaps we might all look in the mirror and ask: Why this difference?
Perhaps we might then ask: What does this do for justice and terrorism in India?

Chart that shows just how partisan India’s criminal justice system can be
India pursued justice with great vigour in the 1993 Mumbai bomb blasts case but showed no interest in convicting those behind the riots that preceded the bombings.
Last week, the Supreme Court rejected a curative petition filed by Yakub Memon, a convict in the 1993 Bombay bomb blasts, to reconsider his death penalty. His impending execution, scheduled for July 30, has raised a series of questions about India’s justice system.

Memon came back to India from Pakistan to surrender and brought with him proof of Pakistan’s involvement in the bombings. This fact was pointed out by none other than B Raman, the person who coordinated the operation for Memon’s return from Karachi. At that time, Raman headed the Pakistan desk at the Research and Analysis Wing, India’s primary foreign intelligence agency.

“The cooperation of Yakub with the investigating agencies after he was picked up informally in Kathmandu and his role in persuading some other members of the family to come out of Pakistan and surrender constitute, in my view, a strong mitigating circumstance to be taken into consideration while considering whether the death penalty should be implemented,” Raman wrote.

Memon’s death sentence is just one questionable decision. The partisan manner in which India’s justice system works can be seen from the following chart: (See article)
As many as 100 people have been convicted for the 1993 Bombay serial blasts which took 257 lives. However, in the 1992-’93 Mumbai riots, an act of mass violence that killed 900 people, just three convictions have been achieved. Even these three were for the relatively minor charge of hate speech and only carried jail time of a year. There were no convictions for the numerous incidents of murder, rape or arson. What explains this massive gulf?

Two approaches: The answer lies in the Indian state’s approach to the two crimes. The Maharashtra government mostly didn’t bother about punishing the people who led the anti-Muslim massacres of December 1992 and January 1993. All it did was appoint a commission – the Indian politician’s go-to answer when he wants to do nothing.

When this commission, headed by Justice BN Srikrishna, did submit its report, it was damning. The report described Shiv Sena chief Bal Thakeray’s role as that of a “veteran General” who “commanded his loyal Shiv Sainiks to retaliate by organised attacks against Muslims”. The process of damning, sadly, never moved on to any damnation: no action was taken on the Srikrishna Report.  Thackeray was, in fact, given a state funeral – Maharashtra’s Congress government maybe taking the “General” bit literally

Not only Thackeray, the police barely pursued any riot cases. In fact, as many as 60% of cases were summarily closed with the remark “true but undetected”.  Later on, the Srikrishna Commission found that even blindingly obvious cases, such as when victims had named assailants who were their neighbours, were ignored and dismissed. In contrast, the blasts were prosecuted with rare vigour. A special investigative team was appointed and the stringent Terrorist and Disruptive Activities (Prevention) Act was applied liberally. The results are borne out by the number of convictions.

see also
Did Yakub Memon make a mistake by trusting Indian investigating agencies?
Terrifying implications of the Staines judgement