The hanging of Yakub Memon, a principal accused in the 1993 Mumbai serial bomb blasts case, in a somewhat dramatic circumstance of the execution taking place within a couple of hours after a three-member Supreme Court bench assembled at 3 am and rejected a new last minute appeal, has evoked a range of responses from political and legal activists.
The proceedings, in a way, can be said to have established the majesty of law in democratic India and countered any notion of haste anywhere down the line, considering the long years over which the trial had traversed from the lowest to the highest courts and seen through a mercy petition a second time as well.
The case is in the news not so much for the issues of law, as it is for the reason that the activists have chosen to make it the ground for questioning the rationale of the death penalty itself. They have also commented on the strategies of dealing with terrorism as also on the role of intelligence agencies in terrorism-related investigations. Each of these matters deserves to be examined for clarity.
The death penalty has been a major point of debate in the theory of crime and punishment over the ages. Killings done out of rage, revenge or sheer greed are already subjected to screening in accordance with the concept of a case being identified as the “rarest of the rare” for awarding death sentence, as per the law laid down by the Supreme Court. The advent of global terror, in which an adversary can send motivated armed militants across the borders to inflict massive loss of life and property in the targeted country, has created a new kind of crime of murder that is different from the homicides that take place in any society.
The Yakub proceedings, in a way, can be said to have established the majesty of law in democratic India and countered any notion of haste anywhere down the line, considering the long years over which the trial had traversed from the lowest to the highest courts and seen through a mercy petition a second time as well.
Those who have advocated abolition of death sentence in the context of the execution of Yakub Memon, seem to ignore the nature of the new threat of terrorism. If even an occasional terrorist caught is not sent to the gallows following the due process of law, imagine the encouragement it will give to the forces behind cross border terrorism.
Such forces would then send out as many Kasabs as possible, because it will be easier to prepare hired militants — beyond the “suicide bombers” — to carry out acts of terrorism when the worst that could happen to them would be a life-long incarceration, subject to all the mitigating rules contained in our democratic system. Death penalty has to be retained as deterrence against terrorism. In fact ways have to be found to expedite the judicial process in a terrorism-related case. Terrorism is a crime of violence dictated by an external enemy. It is not a murderous act resulting from inflamed passions within society, for which, of course, our Penal Code had already created stringent provisions through Criminal Law Amendment Acts.
As regards the strategy of countering terrorism, the people of India would like to believe that the regime has taken all the lessons that the experience of 1993 Mumbai blasts and 26/11 produced for strengthening the security set-up and its protocols. Both were terrorist attacks of unprecedented scale; the death penalty imposed on at least one terrorist in each case proves the point.
Strengthening the vigil on the border by enhancing the operational oversight of the Army in sectors where it shares this responsibility with paramilitary forces, building up Centre-State integral responses to any incident of terrorism, and making fuller use of the resources of the states and the districts to produce “intelligence from below” to augment information garnered by the Central agencies on the insiders collaborating with an external enemy, are some of the points that suggest themselves. Work is already going on there.
The media debate in the Yakub Memon case has also brought up the matter of interplay that exists between the intelligence set-up and the investigating agency such as the CBI, in the context of the pursuit of an incident of terrorism. Informed citizens need to understand that the turfs of intelligence and investigation are distinct from one another. One handles “information”, whereas the other tackles “legal action”.
Intelligence uses authorised “covert” methods to access information about the adversary and aims at pre-empting the threat. Commission of an act of terrorist violence brings in the police or a special investigating agency, whose job would be to collate legally admissible facts for successful prosecution and establish deterrence through conviction. An intelligence agency provides information and has nothing to do with legal steps like arrest and seizure following it. This is the point on which the concept of NCTC was faulted when it was initially announced. The takeaway from all of this is that clarity on inter-agency relationships serves the cause of national security.