Thursday, August 6, 2015

Finality of judgements - Tilak & Memon

3rd August 1987 was my first day at the hallowed Crawford Bayley & Co. I was, as the cliché goes, young, bright and bushy tailed. It was either Armin, Yadunath or Shrikant who took me to see the Bombay High Court. I cannot now remember who it was, but I am certain it was one of these three. As was obligatory, I was taken to see the Central Court Room, which was quite grand. Grand in not the true sense of the word, but in a relative sense. Imagine Buckingham Palace or the Louvre or the Sistine Chapel being maintained by the Indian PWD, which is what the Central Court room looked like.

Circa 1909 the great freedom fighter Lokmanya Tilak was tried in that Court. Tilak was being prosecuted by the British for demanding Swaraj or self-rule. Defending Tilak was an up-and-coming lawyer M A Jinnah. Alas the jury, by a majority of 7:2, returned a verdict of guilty and Tilak was sentenced to six years. On being asked by the Judge whether he had anything to say, Tilak uttered the words now carved into the marble plaque just outside the Court.

“In spite of the verdict of the Jury, I maintain that I am innocent. There are higher powers that rule the destiny of men and nations and it may be the will of providence that the cause which I represent may prosper more by my suffering than my remaining free.”

I remember being terribly impressed by these words. These were no doubt stirring. But, as I have written, I was bright eyed and bushy tailed. Today I am far wiser, far more cynical and probably very disillusioned by what India has become. Today, I look at that statement wonder. Despite being pronounced guilty, in what I believe is an openly inflamatory statement, Tilak says that he is innocent.

The principle I am trying to state is that despite being pronounced guilty by a competent Court in a proper and fair trial, that too by a jury, the accused refused to accept that he was guilty.

Fast forward 106 years and see what is playing out today.

Paraphrasing massively, and dealing only with the legal challenges by Yakub Memon, it is interesting to understand this. First Memon was pronounced guilty by the TADA Court [the Trial Court] and sentenced to be hung. This verdict was appealed and the appeal was dismissed by the Supreme Court, meaning that the verdict of the Trial Court was confirmed. This was followed by two review petitions in the Supreme Court, one curative petition also in the Supreme Court, another writ petition thereafter, and then another night-long hearing in the Supreme Court. Add to this the various mercey petitions. This makes a total of eight hearings, which is unprecedented. Despite this, our Television Channels, many of the print, various politicians, the Jholawallas and the Mango people refused to believe that Memon’s verdict was legal and proper.

As is the case, various arguments were conveniently mixed up and jumbled to produce a powerful concoction that ended up completely obfuscating the judgement, the role of our Courts and the fact that justice was done, repeatedly, in Memon’s case.

First up was the were the people against the death penalty. They pop up every time someone is going to be hung. The remainder of the time they are silent. India does have the death penalty on the statute books, hence agitating that it should not be applied in a given case as the death penalty is wrong, completely confuses the people. The role of Shashi Tharoor in this has to be condemned. For every wonderful debate in Oxford he manages to take several steps back by making outrageous statements.

Then there was the utterly mysterious theory propounded by the online `Middia’ based on an article written by Mr. B Raman. Raman claimed that Memon was promised immunity from execution if he helped the Indian intelligence. Problem is that this immunity was never recorded and now Raman was dead.

Then we had the utterances of Asaduddin Owaisi who mixed up Raman's position and added his own two bits worth. The sum total of Owaisi’s words are (i) breach of promise of the immunity from execution and (ii) the `real perpetrators’ Tiger Memon were scot free while Yakub was being hung.

Out of the blue the great Salman Bhai burst into this controversy by in essence tweeting the `real perpetrators’ argument. Of course, Salim Bhai had to jump in and control Salman Bhai.

The next argument that Yakub should not hang was the age old one. He was a Muslim and was thus a victim. This was a potent argument having regard to the fact that, in all honesty, our country is really at crossroads with Hindu Muslim tensions increasing day by day.

And, oh yes, before I forget, Yakub was diagnosed with schizophrenia. Hence some of the arguments were that he was unfit to be tried, therefore the sentence of hanging could never have been passed. 

Our television `Middia’, as is their wont, had panel discussions with advocates of each of these arguments thrown onto one panel and being asked to spout. Debates were vicious, often illogical and always completely mixed up.

All this publicity left a deeply divided populace. Threats, fears and assumptions of riots and violence were all around. Mahim where the Memon family lives became a fortress. Thankfully, nothing happened.

My point is despite the unprecedented eight rounds of trial/appeal, Memon's death sentence was upheld consistently. Our people are simply unable to accept the finality of a Court decision. Why is this? This is extremely troubling. I wonder where we are heading to.

On the other hand I wonder if this is simply a continuation of what started 106 years ago with Tilak’s statement.