This case has been aptly phrased to be “more about philosophy than about law”. Yakub Memon, the lone convict of the 1993 blast, had been rightly given all the legal options that were there to be exhausted before he was finally hanged on his 53rd birthday (30th July 2015) at Nagpur Central Jail. It was indeed a very poetic end to a person in the sense that the person who aided the killing of 257 innocent people had to beg for his own life at the end.

However, a debate eventually arose as to whether the death sentence was justified or not.

But before one decides to have an opinion on the gravity of the offense and the metric on which the punishment was awarded it would be only prudent to have an overview of the Yakub’s involvement in the 1993 blast, his arrest (or surrender), his actively helping the nation in providing vital cooperation with the C.B.I. and all this in the background of our legal system which propagates to follow ‘reformative theory’, a school of thought which seeks to reform a criminal rather than to punish him.

Yakub Memon and his brother Tiger Memon were principally polarized, while one had acquired success through all legitimate means the other was not opposed to earning through illegal dealings. Yakub was educated in an English medium school and passed out of college with a commerce degree and went on to become a chartered accountant in 1990, his accountancy firm was so successful that in 1992 he won an award for being the best chartered accountant in the Memon Community.

It is in respect to this financial acumen of Yakub that his role in the blast becomes important, reported Mid-Day. Furthermore, during the investigation it was found out that various “complex financial transactions” were carried out with meticulous financial planning from various accounts of Tiger Memon and it was alleged and later proved that these were indeed carried out by Yakub along with funding for the training for 15 youths who were then sent to Pakistan to train on using arms and ammunition, purchasing the vehicles which were later used for carrying out the bombings and hence making him a “conspirator” to the offense.

However the death sentence was awarded on the ground that he was a “mastermind” of the offense. Now the question arises as to whether the act of conspiring and aiding the blast actively, by carrying out the complex transactions, could be brought under the ambit of the term “mastermind”.

Given the complexity of the transactions carried out by Yakub one might most rationally agree with the Supreme Court’s categorization of him under the ambit of “mastermind”.

Next arises the question of his arrest. As per Rediff’s archives, it has been written by Mr. B.Raman (head of the Pakistan desk at R. & A.W when Yakub was brought to India) that Yakub had come to Kathmandu to consult with his lawyer on the fact that he was uncomfortable in Pakistan with the ISI and he wished to surrender to the Indian authorities. Thus establishing that he had a genuine intention. However he was advised against doing it by his lawyer and while returning to Karachi following this meeting he was apprehended.

Therefore, two things have been established so far, first that there is no doubt about Yakub’s involvement in the blast and that he is guilty for the same. Secondly, even though guilty he seemed to have had a better intention later on when he wished to surrender to the Indian authorities.

Here arises the “mitigating circumstance” debate. While it is proved that he is guilty it also very well established that post his arrest he actively helped the C.B.I. by revealing the details of the planning of the blast and it was only because of him that India could actively establish the ISI link to the blast and the involvement of the Pakistani Government. The most clinching among the many evidences given was the fact that the Pakistan Government had protected the Memon family and issued them fake passports (from embassy of Thailand in Islamabad) as reported by Mid-Day and this was done even after they had refuted that the Memon family was in Pakistan when deportation was sought by the Indian Government.

It is in context to this that reformative system in India should be brought into context. India aims to propagate a system wherein the criminals are reformed and not punished and only in the rarest of rare case a person is sent to the gallows for his act. Yakub can almost be said to have been an ideal example of the reformation aimed under this system. While in prison he studied at Indira Gandhi National Open University and obtained two degrees, one in English literature (2013) and the other in Political Science (2014) and he also helped two of his inmates to clear the SSC exam. So why wasn’t he considered to be an apt example and flag bearer of this reformative system that the Indian legal system holds so close to its heart.

Further, many prisoners on life sentence are released due to “good conduct”- Yakub had always been termed to be a well behaved prisoner. Hence to consider the nature and character of Yakub, one must judge his both, pre 1994 and post 1994 conduct, while awarding him death penalty would have been subject to much lesser debate considering his behaviour and acts pre 1994 but it is his behaviour after 1994 where one fails to understand that if India really propagates to be following the reformative system then why weren’t all these factors considered, not to release him but to simply stop him from being sent to the gallows.

Then again one might argue that this death sentence delivered justice to the relatives of the deceased. But this argument is largely untenable owing to the fact that this has been largely a retributive justice, one which the nation propagates not to follow, and wouldn’t it have been a better form of justice to have opened up the state coffers to these relatives than to hang just one of the many involved in the offense.

Next major concern that this judgement brought up is that, did the nation really send a right message by hanging Yakub? While the proponents of the death penalty would claim that the nation sent an appropriate message by hanging which would directly deter terrorist from following his footsteps but the larger concern here is that this sentence might have directly destroyed any chances of vulnerable terrorists, like Yakub, surrendering to the nation and providing vital information to prevent future terrorist activities. It is here that it becomes highly ironic that Yakub did want to surrender to the Indian authorities but his lawyer, definitely more adept and versed to the trends of Indian judiciary, advised him not to surrender as he won’t get justice.

Legally speaking a very strong piece of argument raised against the death sentence awarded to Yakub Memon is that his defence lawyer (the lawyer’s name wasn’t mentioned for confidential reasons) might have bungled up his case by showing a lack of knowledge of Terrorist and Disruptive Activities (Prevention) Act, 1987 (referred to as TADA act). S.3 (3) of the TADA Act, under which Yakub was primarily charged, states that whoever is charged under this section will have a maximum punishment of life imprisonment. On this point of law many legal experts have claimed that Yakub’s lawyers have failed to prove that death sentence is not a punishment that is applicable in his case and that provisions of Indian Penal Code do not apply as was seen on the judgement of Rajiv Gandhi Assassination case. The later judgement (Rajiv Gandhi assassination case)  was dealt with on the same day (within 24 hours) wherein the same point of law was discussed and yet the same line of analysis was not extended to the case of Yakub Memon.

The question that needs to be asked is that whether the Supreme Court is applying the “rarest of rare” doctrine arbitrarily or is it the fact that Yakub Memon did not have the political backing, that the killers of Rajiv Gandhi and even of Beant Singh for that matter, had.
 
The fact that the Rajiv Gandhi assassination case was as much as a conspiracy as the Bombay blast and yet the convicts of both the cases were treated differentially almost affirms the above view. It is line with this dichotomy that the deputy registrar (research) of Supreme Court, Dr Anup Surendranath resigned after Yakub Memon’s hanging dubbing the death penalty as “judicial abdication” and terming it as the “darkest hours of the Supreme Court of India”.

His resignation gains much more significance in the light of the events as he was the Director of the Death Penalty Research Project and was associated with filing for the stay of Yakub’s death sentence and his resignation on the day of Yakub’s hanging clearly indicates that something very grave must have disturbed his legal acumen on death penalty due to which he no longer wished to be associated with the institution which awarded this sentence.

Yakub Memon, much to the disliking of many within the legal fraternity, was eventually hanged at Nagpur Central Jail on 30th July at around 6.30 A.M. and with it ending the much heated debate which continued till 5 A.M. and made the Supreme Court of India burn the midnight oil. But with his death many questions remained unanswered and still remain the subject matter of debate, but this debate would have no bearing in deciding the fate of Yakub Memon.

Indian Express states that Yakub Memon had chosen to leave his protected life under the ISI and travel to India to prove his innocence and only a person fully aware that he would be able to prove his innocence would embark on such a “difficult and risky adventure” – as he had stated in his letter to the Chief Justice of India in 1999. The question remains as to why he considered surrendering to the Indian authorities if he wasn’t sure of his innocence.

The sentence certainly reeks of primitive vendetta when there are so many grey areas in the case such as even  his arrest is subject to fact skepticism as Mr. Raman who co-ordinated the whole operation stated that Yakub was in fact apprehended informally in Nepal before being formally arrested in Delhi. However, Mr. Ujjwal Nikam, state public prosecutor- also famously known for sending Ajmal Kasab to the gallows, had argued that he was arrested at Delhi Railway Station – an assertion which Yakub had refuted vehemently even claiming that he has never seen the Delhi railway station.

Further it was only evident in the case that there was an unnecessary haste in carrying out this death sentence and one fails to understand why the date – 30th July was found to be sacrosanct that even with so many questions awaiting to be answered satisfactorily the sentence wasn’t even stayed.
 
Furthermore, the sentence somewhere seems to portray political high handedness in the judiciary when one raises the question as to why Maya Kodnani, a B.J.P. legislator and Babu Bajrani not be hanged for their offense of killing 97 people in Ahmedabad in 2002. It is an open secret that assassinators of Rajiv Gandhi and Beant Singh have the backing of the government of Punjab and Haryana. However Yakub Memon had no political backing and the dots are left open for everyone to connect.

In a nation, whose father is equated almost as the global icon of peace, any death sentence is bound to be subject to great lengths of debate and discourse but on a sentence such as this which many believed to be unjust, it is quite difficult to muzzle the decent.

The question was never on Yakub’s guilt, he definitely was guilty but the question was whether it was the same Yakub Memon who had assisted in the blast or a much more reformed person who was hung on 30th July. It definitely wasn’t the former and hence hanging him wasn’t a victory against terrorism but a loss of the reformative system and stain on the maturity of our democracy.

The opportunity to fight terrorism through reformative means, as would have been the dream of our father of the nation is lost.