SIDDHARTH VARADARAJAN - Yakub Memon, Maya Kodnani and the ‘Chain of Action and Reaction’

The media tells us we should now have a sense of “closure” but in the wake of Yakub Memon’s execution, I, like many others, have been trying to understand the logic of why some criminals get hanged in India while others guilty of similar crimes don’t.

On the day Memon’s writ petition against his death warrant was  dismissed by the Supreme Court, another bench decided that the assassins of former prime minister Rajiv Gandhi would not have to hang after all. The court, which had earlier commuted their sentence, rejected the government’s belated and somewhat half-hearted curative petition demanding that they be put to death.

By a curious coincidence, the Gujarat High Court has also just started hearing appeals in the Naroda Patiya case stemming from the Ahmedabad killings of March 2002. The trial court had convicted several persons connected with the sangh parivar for the cold-blooded massacre of nearly 100 Muslims. Among those sentenced was Maya Kodnani. She had been a minister in the state cabinet of Narendra Modi at the time she was arrested by the Supreme Court-appointed Special Investigation Team. Found guilty of leading the murderous mobs, Kodnani was sentenced to 28 years rigorous imprisonment and not death. 

The Gujarat government has taken the view that there is no need to seek the death penalty as there is (according to it) only indirect evidence linking her to the murders.
As a critic of the death penalty, I am as opposed to hanging Kodnani as I was to the execution of Memon (against whom, ironically, evidence showing his involvement in the heinous Bombay bombings was also only “indirect”). But I am curious about the social, judicial and, above all, political hierarchy of crimes that clearly exists in India and which determines both the course of prosecution and the nature of punishment that follows.

That there is such a hierarchy was obliquely confirmed by the Home Minister in Parliament the other day. During the debate on the Gurdaspur terrorist incident, Rajnath Singh attacked the Congress party for coining the term ‘Hindu terror’, and said this had served to distract the attention of the country away from actual terrorism, which, by his logic, is presumably non-Hindu.

The fact that the minister said this in the wake of Gurdaspur, where the terrorists had clearly crossed over from Pakistan, and barely a day after Memon was hanged, gave his argument a certain currency. Neither Memon nor the others held responsible for planning and executing the conspiracy were Hindu. The Shiv Sena-BJP government which came to power in Maharashtra after Justice B. Srikrishna had begun probing the December 1992-1993 Bombay riots first tried to disband his commission and then expanded its terms of reference to include the March 1993 blasts. 

What the commission established was that the bombs planted were a product of the riots which preceded them. They were, in other words, part of a ‘kriya pratikriya ki chain’, or ‘chain of action and reaction’ – to invoke the peculiar phrase Narendra Modi would use nine years later to link the mass killing of Muslims that was taking place across Gujarat to the burning of Hindu passengers at Godhra. “What I want is that there should be no action and no reaction,” Modi had added even as his state was burning, a curious wish list for a Chief Minister who could not undo the past but who definitely had the power to at least control the present.

As the Bombay riots and blasts – and Godhra fire and Ahmedabad inferno – show, Hindu terror and Muslim terror are twins and both are equally evil. There is, even in the Newtonian moral universe of ‘action and reaction’, a culpability that neither Memon nor Kodnani can evade. Yet one pays with his life while the other doesn’t. Both freely acted out their role in the ‘kriya-pratikriya ki chain’ but the same state that fought to take one life will now fight to save the other. Just as it fought to ensure the terrorists who led the mobs in Bombay in 1992-93 and Delhi in 1984 were never called to render account.

Memon’s execution, we are told, will help deter others from committing similar crimes but the effectiveness of this “deterrence” rests surely on what crimes are to be considered “similar”. Shocked by the devastation of Hiroshima, whose 70th anniversary falls this week, Judge Radhabinod Pal of the Tokyo Tribunal trying Japanese war criminals believed there was no possibility of justice if those responsible for the deliberate murder of civilians by atomic weapons were also not put in the dock. His was not an argument about moral equivalence but of the deterrent value of justice. Future war crimes could be prevented only if the Tribunal was willing to treat the dropping of nuclear bombs or the firebombing of entire cities on par with the atrocities that the Japanese militarists were rightly accused of committing.

Pal was overruled by the other Allied judges but this tension between victor’s justice and the rights of all victims to justice would later be resolved – at Geneva, the Hague and Rome – with the adoption of the Geneva Conventions (after World War II), the International Court of Justice advisory opinion on the illegality of nuclear weapons (in 1996), and the establishment of the International Criminal Court (in 1998).

In India, sadly, we are not even prepared to recognise the gravity of the crime of communal violence and treat it on par with terrorism, let alone adopt legal remedies to deal with it. It is our national failure to come up with a deterrent to mass violence that allowed the 1984 massacre of Sikhs to take place, followed by Hashimpura, the Babri Masjid, Bombay and then Gujarat. If the government wants to end this chain, it must turn justice from being a product of faith – in which minority victims don’t count – into an article of faith for India and its state institutions.

"The masterminds of the 26/11 attacks are treated like heroes in Pakistan. We are not there yet, but if hidden hands nudge the judicial system to free murderers of the saffron variety, we will be soon"

NB: I am adding a citation from an important book on Nazism written in the 1930's, Behemoth, The Structure and Practice of National SocialismNew York, republished 1963, p 27. The author was Franz Neumann. A pdf file may be read here: < 
(The counter revolution) ‘…tried many forms and devices, but soon learned that it could come to power only with the help of the state machine and never against it… the Kapp Putsch of 1920 and the Hitler Pustch of 1923 had proved this.. In the centre of the counter revolution stood the judiciary. Unlike administrative acts, which rest on considerations of convenience and expediency, judicial decisions rest on law, that is on right and wrong, and they always enjoy the limelight of publicity. Law is perhaps the most pernicious of all weapons in political struggles, precisely because of the halo that surrounds the concepts of right and justice… ‘Right’, Hocking has said, ‘is psychologically a claim whose infringement is met with a resentment deeper than the injury would satisfy, a resentment that may amount to passion for which men will risk life and property as they would never do for an expediency’. 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. As a device for strengthening one political group at the expense of others, for eliminating enemies and assisting political allies, law then threatens the fundamental convictions upon which the tradition of our civilization rests…

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