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India hangs another despite pleas from eminent people

Possible innocence, the fact that guilt was never proven beyond reasonable doubt and that many impoverished accused are poorly represented - just a few of the reasons anti-death penalty campaigners cite.

N. Jayaram
30 July 2015
Clashes in central Delhi after the hanging of Afzal Guru, 2013.

Clashes in central Delhi after the hanging of Afzal Guru, 2013. Demotix/ Louis Dowse. All rights reserved.Earlier today, Yakub Memon, a chartered accountant convicted in connection with the 1993 Bombay bombings case, was hanged on his 53rd birthday despite many eminent Indians’ pleas that as he had assisted with the investigations and provided vital information, his life should be spared, especially as he had already spent two decades in jail.

Given that the current main constituent of the ruling coalition, namely the Bharatiya Janata Party, and of the previous, the Congress, are near identical in their main policy thrusts, it is hardly surprising that the last two men to be hanged in India were Muslims, as was Memon. Not necessarily by design but a majority of the prison population consists of the poor, Dalits (“untouchables”), Muslims and indigenous peoples. Their representation on death row is even higher.

The Bombay blasts killed 257 people and while Memon might have played a role in the conspiracy leading up to it, given the cooperation he extended officials, he deserved leniency, according to a former top intelligence officer, B. Raman.

“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,” said the late Raman, in a letter written in 2007 but published just a few days ago.

Gopalkrishna Gandhi, a grandson of Mohandas Gandhi and former distinguished civil servant and ambassador to several countries, as well as former Supreme Court judges Harjit Singh Bedi and Markandey Katju, former Delhi Chief Justice Rajinder Sachar and others had called for commutation. At a public hearing on the death penalty called by the Law Commission of India earlier in July, leading politicians and jurists had joined in the call to abolish capital punishment.

Another group of eminent people had addressed a detailed letter to Indian President Pranab Mukherjee pointing out among other things that the death warrant was illegal going by a previous judgement of the Supreme Court, that the long incarceration ought to have led to commutation, that Yakub Memon was not the main actor in the conspiracy, that execution would weaken the case against the role of Pakistan as no more witnesses would be available, that several others convicted in terror cases had won mercy and that the Terrorism and Disruptive Activities (Prevention) Act under which he was convicted had been repealed by parliament.

The Kashmiri Afzal Guru was hanged in secret by the previous government of Manmohan Singh in 2013, his family not informed in advance and his body buried inside Tihar Jail in Delhi and not handed over for a decent burial according to the rites a believer ought to be accorded. A large number of intellectuals and jurists including Nandita Haksar, Indira Jaisingh and the recently deceased Praful Bidwai, held that he was almost entirely (and the qualification “almost” is added pro forma) innocent of the crime of having a hand in the 2001 attack on the Indian parliament. Entire books have been written including by intellectuals such as Arundhati Roy and Nirmalangshu Mukherjee on the travesty of justice.

Ajmal Kasab, the only Pakistani captured alive after the 2008 attacks in Bombay was handed in 2012, his body buried in secret inside the jail. He was 25 when he was hanged in 2012. Kasab was the only witness captured alive. With his hanging went a crucial source of information on the conspiracy that led to the Bombay attacks. He could have been afforded a chance to educate himself and reform. But in a country and a world where acts of terror committed by people with Muslim names attract attention but those by Hindus, Buddhists, Christians, Jews and others get glossed over, he had little chance. The frenzied calls for Kasab’s execution were fuelled by oft-bandied and baseless claims that he was being fed biryani in jail. The special public prosecutor then – the current Attorney General of India who was hyperactive in demanding Yakub Memon’s death, recently admitted that he made up the biryani myth. References to biryani had also been rife in the discussion of the fates of Afzal Guru and Memon.

Just as Memon was hanged on his birthday, 11 years ago, a Kolkota (Calcutta) building security guard was hanged for the rape and murder of an 18-year-old woman. A crime he might not have committed, going by a new analysis by two scholars of the Indian Statistical Institute earlier this month. Dhananjoy Chatterjee, despite his Brahmin name, was impoverished and ill-represented in court. The scholars argue that the police created evidence and ignored the possible motive of the deceased’s family in implicating him.

Earlier this year, after a couple of hearings in an appeal by a Dalit named Surinder Koli – convicted in connection with a series of gruesome murders known as Nithari Killings – the Supreme Court gave the green signal for his hanging. But the Allahabad High Court in Uttar Pradesh state later commuted the sentence to life, citing inordinate delays in handling his appeals. The commutation has now been appealed with the Supreme Court, and given its current judges’ penchant for confirming death sentences and overlooking shoddy trials in lower courts that led to convictions Koli’s life hangs by a thread. Koli’s employer Maninder Singh Pandher, who had also been convicted and given the death penalty, went from death row to acquittal. Senior officials of the Ministry of Women and Child Development had pointed out that the organ trade angle in the Nithari Killings had not been followed up and that bodies had been cut open with surgical precision. That left open the possibility that Koli, a mere servant in Pandher’s house could well be innocent. That his bizarre confession – of several killings, rapes and cannibalism – was extracted through torture was ignored by judges.

Possible innocence, the fact that guilt was never proven beyond reasonable doubt and that many impoverished accused are poorly represented is just a few of the reasons anti-death penalty campaigners rely on. That it is no deterrent to crime has been conclusively proved – despite repeated invocations in courts of law and in the media. A comparison of the crime figures of European countries which are all – excepting Belarus – abolitionist in law or practice as well as those between abolitionist and retentionist states in the United States bears this out.

One person’s terrorist is another’s freedom fighter. The Irish Republican Army was seen as a terror outfit but its political wing shares power in Belfast today following the Good Friday Agreement. The Kurdish leader Abdullah Ocalan is deemed a terrorist by Turkey but his death sentence was commuted when Ankara applied to join the European Union one of whose membership conditions is abolition. Ocalan has been talking peace since and in 2013, Time magazine named him one of the 100 most influential people in the world, happily his brief portrait written by Gerry Adams. Nelson Mandela had been a terrorist in the South African Apartheid regime’s eyes.

In India, the lives of Tamils convicted in connection with former prime minister Rajiv Gandhi’s 1991 assassination have been spared as have those of a couple of Sikhs convicted of terrorism as the Indian authorities fear the backlash in Tamil Nadu and Punjab. Judge Jyotsna Yagnik who convicted former Gujarat minister Maya Kodnani (in the cabinet of then Gujarat chief minister Narendra Modi, now India’s Prime Minister), prominent Hindu militant Babu Bajrangi and 30 others in the 2002 massacre of 97 Muslims (among the 2,000 who perished in total) in the state, rightly rejected imposing the death penalty, saying it went against “human dignity”. Kodnani and Bajrangi have been repeatedly winning bail, which the now retired judge has complained of receiving threats to her and her family’s lives.

During the term of current Indian president Pranab Mukherjee, there has been a sharp rise in the rejections of mercy petitions. During the term of his immediate predecessor Pratibha Patil there were no executions. And her predecessor A.P.J. Abdul Kalam, there was one execution, that of Chatterjee. No wonder Amnesty International deems the death penalty a “lethal lottery”.

Incidentally Kalam, who had been a darling of the nationalist crowd, was buried with high ceremony today. Journalist and author Nadim Asrar had this to say comparing the fates of Kalam and Memon: “The two theatres of death perhaps also serve as tactile allegories for a nation, where a distinct discourse buoyed by the rise of a certain political force into power, has gained enormous ground. In the trajectories that Kalam and Memon - both Indian Muslims - travelled and in their deaths, the chequered career of Indian secularism can easily be decoded.”

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