The Maharashtra government’s overeager announcement of July 30 as the date for the 1993 Mumbai blasts accused Yakub Memon’s hanging even before his curative petition in the Supreme Court was decided has been met by a host of divergent voices. Some, while pointing to the Memon’s voluntary surrender, have opposed his hanging, even calling it a travesty of justice. But such voices have been drowned by a number of others calling for an execution without delay – mostly basing themselves on an argument sanctified in various judgements of the Supreme Court – that in such cases it is only the death penalty that can satisfy “the collective conscience of society”.
But collective conscience has an ambiguous arithmetic. While the 257 dead in the March, 1993 blasts in Mumbai – for which Memon is to be hanged – demand retributive judicial action, the 1,000-odd killed in the riots just a couple of months earlier have been quietly laid to rest without a single person being punished – and society’s conscience seems none the worse for this. The political parties, media and other manufacturers of this collective conscience are obviously not that intensely affected by the terror of pogroms by the majority community.
Studies show how this concept of collective conscience, when applied to criminal law, is highly subjective and flexible, and differs widely depending on the views and whims of the judges involved. This undermines the principles of objectivity and neutrality that are supposed to govern the operation of the criminal justice system. Conviction and sentencing then does not depend solely on evidence brought before the court during a trial. If the preconceptions of a particular judge lead him to consider an offence as particularly heinous, he is likely to decide that conviction and a harsh sentence is the only way to satisfy the conscience of the society. This then leads to the conclusion that capital punishment has to be imposed on someone – anyone.
Delay in delivery of the 7/11 judgement
The next major case of this kind that is due for judgement is the one relating to the Mumbai train blasts of July 11, 2006 – also known as the 7/11 case. When the trial in this case was closed and judgement reserved on August 19, 2014, the special public prosecutor in the matter told the press that the judgement would come in a month. Almost a year has passed without a judgement being delivered and the latest expectation is that it will come by July-end or early August.
The delay is understandable considering the difficulties before the judge. On the one hand, the horrific nature of the blasts brings the pressure of the collective conscience-makers to bear on him to somehow ensure that capital punishment in sufficiently large numbers is imposed. On the other hand, the large holes in the prosecution’s case on account of false implication of the accused by the investigation team makes his task a tricky one.
False implication, fabricated story, torture and forced confessions
Many of the 13 accused in the case were office-bearers, activists and supporters of the Students Islamic Movement of India (SIMI) who were first arrested at the time of the initial ban on SIMI in 2001. During the five years upto the July, 2006 blasts they were under constant surveillance, while regularly attending the court cases lodged against them for membership of SIMI. Some among them even had to regularly report at local police stations as part of the conditions of bail granted to them in those cases. Interviews conducted with some of them, available on YouTube, detail the close watch and scrutiny they were under right till the time they were implicated in the train blasts case. The cases against them and their attendance at police stations is a matter of record. It is thus clear that it was quite impossible for such highly-watched individuals to have been part of a plan to make and plant bombs in the city. But being easily and quickly available to the Anti-Terrorist Squad (ATS), which was eager to show some results and arrests in the case, it did not matter that these were not the real culprits. Anyone would do anything to satisfy the collective conscience.
The proceedings that followed have been related by Manisha Sethi in her article, “Dr NARCO and Other Stories from KAFKA Land“, which is included in her book, Kafkaland: Prejudice, Law and Counterterrorism in India. Using material from terror cases in various parts of the country, she describes the modus operandi of torture, narco analysis and forced confessions to produce chargesheets. In the 7/11 case the application of MCOCA (Maharashtra Control of Organised Crime Act) made forced confessions before police officers admissible in court and these became the basis of the chargesheet.
An important challenge to this chargesheet came from within the police force itself. The Mumbai Crime Branch, then under the leadership of Rakesh Maria, the present Mumbai police commissioner, came out with its own version, which completely contradicted the ATS’ version. While investigating the Maharashtra links to the Ahmedabad and Surat blasts of 2008, they produced another confession that showed it was another group, which had nothing to do with the 13 arrested accused, that planned and executed the train blasts. The ATS refused to use this confession as it would show the ATS’ original story to be false.
The lengthy police custody remands needed by the ATS for torture and forced confessions were obtained by claiming that they needed to interrogate the accused in relation to their mobile phone call data records (CDR), which they claimed would prove their guilt. However, when the chargesheets were finally filed, they did not contain any CDR whatsoever. When the accused asked for the records, the ATS first refused to give them, then said they had lost them and then told the telecom companies to charge the accused an exorbitant sum running into several lakhs of rupees. It was only as a result of orders from the Bombay high court that the CDRs were handed over to the accused, which conclusively disproved the ATS’ story.
Considering these and other major contradictions and holes in the prosecution’s case, it is only just and reasonable to expect that the judgement will declare the ATS’ story to be false and order that the accused be acquitted and released. But will the blindfolded goddess of justice be able to remain deaf to the loud cries for blood being raised by many political parties, media channels and other manufacturers of collective conscience and deliver a true and independent verdict? The coming days and weeks should provide the answer.
By Arun Ferreira and Vernon Gonsalves