The death penalty to Yakub Memon has of late caused a debate on the need for an introspection by the judiciary whether he actually deserves to be hanged. The 1993 Mumbai bombings convict is scheduled to be hanged on 30 July. However, it might get delayed as his pleas are pending with the Maharashtra Governor and the Supreme Court.
There have been growing voices against the award of capital punishment to Memon as question is being raised whether India did justice to him despite his cooperation with the Central Bureau of Investigation (CBI) in the process of investigation into 1993 serial blasts case of Mumbai.
'Memon does not deserve to be hanged'
A former Supreme Court judge and a retired (late) Research and Analysis Wing (R&AW) officer were among those who believed Memon does not deserve to be hanged.
B Raman, a former additional secretary in the Union cabinet secretariat and former head of counter-terrorism division of the R&AW, who died in 2013, was pained to hear about Memon's death sentence, writes Sheela Bhatt, a journalist with Rediff.com.
Rediff published an article on 24 July, containing Raman's letter (an article) to Bhatt on Memon's hanging and some unknown details of the investigation and trials that suggested injustice done to Memon by deciding to hang him. Raman was a columnist for Rediff.com and had written this article in 2007 but was skeptical about publishing it. However, it was published now with the permission of his brother BS Raghavan, a retired IAS officer.
In the article, Raman revealed that certain mitigating factors were not brought before the court during Memon's trial. If the investigating officers had highlighted these factors in the court, Memon might not have been awarded death sentence, Raman believed.
"I was disturbed to notice that some mitigating circumstances in the case of Yakub Memon and some other members of the family were probably not brought to the notice of the court by the prosecution and that the prosecution did not suggest to the court that these circumstances should be taken into consideration while deciding on the punishment to be awarded to them. In their eagerness to obtain the death penalty, the fact that there were mitigating circumstances do not appear to have been highlighted," he had written.
He wrote further that Memon was considering to surrender himself to clear his and his family's name. Menon had gone to Kathmandu airport, where he was arrested in 1994, to consult his lawyer cousin from Mumbai about returning to India. However, his family was against it fearing injustice, Raman wrote.
"He had come to Kathmandu secretly from Karachi to consult a relative and a lawyer on the advisability of some members of the Memon family, including himself, who felt uncomfortable with Pakistan's Inter-Services Intelligence, returning to India and surrendering to the Mumbai police. The relative and the lawyer advised him against surrender due to a fear that justice might not be done to them. They advised Yakub to go back to Karachi," the letter said.
"Before he could board the flight to Karachi, he was picked up by the Nepal police on suspicion, identified and rapidly moved to India," the letter added.
'Memon coopertaed with Indian intelliegnce agencies'
Although he landed into the hands of Indian intelligence accidentally, Memon cooperated with them fully in convincing his brother Essa and Yousuf and sister-in-law Rubina to surrender. It was his cooperation with the Indian intelligence and investigating agencies – RA&W, IB and CBI – that Raman believed was the strong mitigating circumstance to avoid giving death penalty to him.
"He cooperated with the investigating agencies and assisted them by persuading some other members of the Memon family to flee from the protection of the ISI in Karachi to Dubai and surrender to the Indian authorities," Raman wrote in his letter.
"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," the letter says.
"There is not an iota of doubt about the involvement of Yakub and other members of the family in the conspiracy and their cooperation with the ISI till July 1994. In normal circumstances, Yakub would have deserved the death penalty if one only took into consideration his conduct and role before July 1994. But if one also takes into consideration his conduct and role after he was informally picked up in Kathmandu, there is a strong case for having second thoughts about the suitability of the death penalty in the subsequent stages of the case," it adds.
Former SC judge on Memon's hanging
In a letter to The Indian Express, former Supreme Court judge Justice Harjit Singh Bedi referred to Raman's letter of 2007 and suggested that the top court should take suo moto notice of the mitigating circumstances highlighted in it.
"The options are indeed limited and time is running out. I think the Supreme Court should suo motu take notice of Mr Raman's article and after hearing both sides remand the case to the trial court to take further evidence on the question of the sentence or in the alternative take the evidence itself. This is still possible under the power conferred on the Supreme Court under Article 142 of the Constitution," Bedi said.
How Memon fell into the hands of Nepal police
In another article, the Indian Express published excerpts from Maseeh Rahman's article in 2007 in the India Today, where he worked before joining The Guardian. Rahman had reported on the 1993 Mumbai bombings as the Mumbai bureau chief of India Today.
Describing how Nepal police caught Memon before handing him over to the Indian intelligence agencies in New Delhi, Rahman said "Memon fell into CBI hands partly by chance and partly on his own volition".
"Yakub though had come prepared to surrender. He was travelling light — his luggage primarily consisted of a cache of documents, video and audio cassettes establishing Pakistan's complicity in protecting the Memons after the bombings, if not revealing its actual role in masterminding the conspiracy," Rahman wrote.
"... Yakub had carried the evidence to Kathmandu in a burgundy briefcase (his favourite colour). After his cousin advised caution, he was walking through airport security to fly back to Karachi when a large bunch of keys in his briefcase showed up in the X-ray image looking suspiciously like a handgun. The briefcase was opened, and out tumbled the Memon family's Indian passports. Yakub was detained, and eventually landed in CBI hands on August 4th," he wrote further.
'Yakub was wrong in presuming India will do justice with him and his family'
When Yakub decided to surrender himself to clear his name in India, he thought the Indian authorities would do justice to him. "'They had a kind of naive faith that since they were innocent, they would be acquitted... Yakub naively thought the country would feel indebted and he would get lenient treatment,' an official recalled," Rahman wrote in his article.
However, his belief and faith in Indian intelligence shattered during the trials. "Yakub said in court, Tiger warned him: 'Tum Gandhiwadi ban ke ja rahe ho, lekin wahan atankwadi qarar diye jaoge' (You are going as a Gandhian, but over there you will be labelled a terrorist)," Rahman wrote.
As the media started alleging "deals" between Indian intelligence and Memon family, it was decided to "ignore the circumstances of the Memon family's return and instead throw the anti-terror Act at them," wrote Rahman.
"Essa, who was hospitalised with a brain tumour and suffers from morbid obesity, and Yousuf, diagnosed as a schizophrenic, also got life only because the flats and garage where the bomb conspiracy was hatched by Tiger and his men were registered in their names. There is nothing otherwise to link them to the conspiracy," Rahman wrote in his article.
"Rubina got rigorous life imprisonment only because a Maruti van used by Tiger's men was registered in her name. But she wasn't even living in Mumbai at the time of the bombings — she had shifted to Dubai six months earlier," he added.
He writes further that Yakub was accused of financing vehicles used by bombers and flight tickets. "A trickier charge is that he asked his driver to give a bag containing hand grenades to one of Tiger's men. Yakub denies it, but his driver and two of Tiger's men confessed. Gun-running has always been a part of the Mumbai underworld's business, so even if Yakub is guilty on this count, it doesn't necessarily establish advance knowledge of the bomb conspiracy," Rahman wrote.
Memon has now filed a mercy plea -- second since the confirmation of death sentence by the Supreme Court with the first being rejected by President Pranab Mukherjee -- with the Maharashtra Governor seeking cancellation of his execution scheduled on 30 July. His another petition challenging his death warrant with the SC is scheduled to be heard on Monday.