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print versionThe Times of India - August 2, 2015
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 while others don’t.
On the day Memon’s review petition was dismissed by the Supreme Court, another bench finalized the commutation of the death sentence imposed on the assassins of former Prime Minister Rajiv Gandhi, rejecting the government’s half-hearted demand 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. Kodnani was sentenced to 28 years’ rigorous imprisonment and not death, and 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 March 1993 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.
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. But the bombs they planted were part of a ’kriya pratikriya ki chain’, or ’chain of action and reaction’ which began with the Bombay riots — to invoke the 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 did have the power to at least control the present. But, as the Bombay riots and Bombay blasts, the Godhra fire and the Ahmedabad inferno show, Hindu terror and Muslim terror are twins and both are equally evil. There is, even in a Newtonian moral universe, a culpability that neither Memon nor Kodnani can evade. Yet one pays with his life while the other doesn’t. Both acted out their role in the ’chain of action and reaction’ 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.
Shocked by the devastation of Hiroshima, whose 70th anniversary is this week, Judge Radhabinod Pal of the Tokyo Tribunal set up to try Japanese war criminals believed there was no possibility of justice if those who were 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 recognizing the gravity of crimes like dropping nuclear bombs or firebombing entire cities.
Pal was overruled by the other Allied judges but this tension between victor’s justice and the rights of victims to justice would be resolved later — at Geneva, the Hague and Rome, with the adoption of the Geneva Conventions, the International Court of Justice’s advisory opinion on the illegality of nuclear weapons, and the establishment of the International Criminal Court.
In India, sadly, we are not even prepared to recognize the gravity of the crime of communal violence and treat it on par with terrorism, let alone adopt legal remedies to deal with it. So Delhi led to 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.
