By
Sajjad Shaukat
Although in most of the
countries, British Judicial system is working well, which has some flaws, yet
it follows rule of law like equality and indiscrimination. But, India has odd
judicial system which is faulty—parochial and discriminatory, proving
inequality (Manusmriti).
The “Manusmriti” is
Hindu code of ancient India, dealing with socio-politico-economic
spheres of human life including all aspects of the law. Hindu law as
codified by Manu is based on the principle of inequality. Like the Indian
discriminatory caste system, the punishment for a particular crime is not same for
all “varnas” (social classes). In fact, the punishment
varies depending on the “varna” of the victim as well as
the the person, committing the crime. For the same
crime, Brahmin is given a mild punishment or exoneration, whereas
the Shudra (lower strata of Hindu social order) is given the harshest
punishment of all. Manu clearly asserts the supremacy of Brahmanism by
exempting Brahmins from any kind of punishment. Even after several
centuries, Manu’s verses and laws are used as guiding principles in the modern India.
Recently, two
different cases in India have witnessed strong shades
of “Manusmriti”. On February 11, 2015, an additional session judge
V.K. Pujara acquitted 70 accused Hindus for lack of evidence in 2002
post-Godhra riots which took place in Seshan Nava village. It is also
likely that Hindu judiciary will acquit many other accused Hindus involved
in Gujarat programmme by citing the same reasons in near
future. As per official figures, the Gujarat massacre
had claimed lives of 790, while 223 Muslims were reported as missing. Other
sources estimate that up to 2,000 Muslims were killed in cold
blood. There were instances of rape, children, being burnt alive and
widespread looting and destruction of religious buildings and other
property. Many scholars and commentators accused the
then Gujarat state government (led by incumbent Indian Prime Minister
Narender Modi) of being complicit in the attacks. He was even banned to
travel to USA. Extremist Vishva Hindu Parishad (VHP) as well as many politicians, including
Modi, had made inflammatory remarks and endorsed strikes against the
Muslims.
And Kashmiri activist
namely Afzal Guru also became the victim of Indian judiciary’s
traditionally callous attitude when he was hanged on February 9, 2013 after
Indian Supreme Court rejected his mercy petition. Indian Supreme Court and
other courts are, however, insensitive to huge number of petitions, filed
against Hindu extremists of VHP, BJP, and even against Indian Prime
Minister Modi.
In another case, on
March 12, 1993, a series of bombing had taken place
in Bombay, Maharashtra, resulting in killing of 350
persons. Dawood Ibrahim, his subordinates including Tiger Memon,
and some expatriate Indian smugglers like Hajji Ahmed, Hajji Umar, Taufiq
Jaliawala etc. were alleged for the crime. Yakub Memon a professional
Chartered Accountant, younger brother of Tiger Memon was also nominated as
absconder in the crime. He initially fled from India; however,
he surrendered to Indian authorities in Nepal on July 28, 1994
to get himself exonerated from the allegations/charges. Indian Central Bureau
of Investigation claims that Memon was arrested at New Delhi railway
station on August 5, 1994.
On July 27, 2007, while
conducting hearing of 1993 Bombay bombing case, Justice
P. D. Kode of Terrorist and Disruptive Activities (Prevention) Act
(TADA) court found Yakub Memon guilty of four offences which include criminal
conspiracy, aiding/abetting and facilitating in a terrorist act, illegal
possession and transportation of arms and ammunition and possessing explosives
with intent to endanger lives. Yakub Memon was awarded punishments of
death penalty, life imprisonment and 24 years rigorous imprisonment. Memon
filed an appeal before the Supreme Court of India. On March 21,
2013, Supreme Court confirmed Memon’s conviction and death sentence for
conspiracy through financing the attacks. Indian President Parnab
Mukherjee rejected Memon’s petition for clemency on April 11,
2014. Memon’s review petition and curative petitions were also rejected by
Indian Supreme Court on April 9, 2015 and July 21,
2015 respectively. Meanwhile, Maharashtra Government issued a
death warrant setting July 30, 2015 as the date for Memon’s
execution. Memon then filed a mercy petition with the Governor of
Maharashtra and filed a writ before the Supreme Court of India for a stay on
his execution till the mercy petition is decided.
However, Yakub Memon
case has been generating criticism from all the corners of the world
especially from within India. Divya Iyer, Research Manager
at Amnesty International India remarked that the rejection of Yakub
Memon’s curative petition in the Supreme Court, paving the way for
his imminent execution is a disappointing—and regressive step towards the
continued use of the death penalty in India. She even rebukes the
Indian politicians by saying that lawmakers in India often find it
convenient to hold up capital punishment as a symbol of their resolve to tackle
crime and choose to ignore more difficult and effective solutions like
improving investigations, prosecutions and care for
victims’ families. Former RAW official B Raman in an unpublished
article of 2007 (now published by Rediff) maintained 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 by constituting a strong
mitigating circumstance to be taken into consideration, while considering
whether the death penalty should be implemented. Indian journalist
Maseeh Rehman wrote that it would be a national tragedy of epic proportions and
a significant miscarriage of justice, if Yakub Memon hangs for his
role in the 1993 Mumbai blasts.
Some Indian journalists
assess three pronged affects of hanging of Yakub Memon. They
believe that the message being sent is that the next time one should
not trust the Indian legal system to help those who surrender
voluntarily and seek to nail the real criminals. If Memon is hanged
despite re-emerging facts, it will prove yet again that political support
is the key to getting convicts an easier sentence. The tragedy would be to
establish religion as the central issue in tackling
terrorism. AIMIM chief/MP Asaduddin Owaisi suggests that Mumbai
blasts convict Yakub Memon was awarded capital punishment because of his
religion, alleging that he was doing “communal politics” over
terrorism and nothing could be “uglier” than this. Owaisi sought
to know whether the perpetrators of demolition of disputed structure in Ayodhya
(Babri mosque), communal riots of Mumbai and Gujarat, and other
such sensational cases would get similar punishment. In retaliation,
BJP MP Sakshi Maharaj said that those who do not respect judiciary
can go to Pakistan.
While,
off late, leaders of various parties including BJP MP Shatrughan
Sinha and its expelled MP Ram Jethmalani, Mani Shankar Aiyar
(Congress), Majeed
Memon (NCP), Sitaram Yechury (CPM), Raja
(CPI), KTS Tulsi and HK Dua (nominated) and T Siva (DMK), former
CPM general secretary Prakash Karat, CPI(ML)-Liberation
general secretary Dipankar Bhattacharya, Brinda Karat (CPM),
filmmakers and actors like Naseeruddin Shah and Mahesh Bhatt, MK Raina and
Tushar Gandhi, retired judges-Justice Panachand Jain, Justice HS
Bedi, Justice PB Sawant, Justice H Suresh, Justice KP Siva Subramaniam, Justice
SN Bhargava, Justice K Chandru and Justice Nagmohan Das submitted a fresh
petition to President Pranab Mukherjee, requesting him to waive the death
sentence of Mumbai blasts convict Yakub Memon. In the new petition, urging
stay against imminent execution of Yakub Memon, the signatories claimed
that there are “substantive and fresh grounds” which can be considered on
merits. However, Yakub Memon has been hanged on July 30, 2015.
It is mentionable that
Yakub Memon has been executed in the case under the TADA court verdict.
But, it is ironical that famous Indian actor Sanjay Datt proved as an
accomplice in the 1993 Bombay bombings and has not been awarded capital
punishment.
Nevertheless, Muslims
and other minority communities are victimized by the Hindu majority in the name
of Manusmriti. India under the rule of Hindu extremist party BJP is
augmenting Hindu parochialism where other communities/religious minorities are
treated like Sudras. Increasing violence against minorities witnessed and
recorded during BJP rule which is vivid manifestation of same Hindu aggressive
approach.
Indian judiciary, mainly
dominated by Hindu parochialism, while giving Hindu Brahmins, the special
status, despite their heinous crimes like Gujarat genocide,
and whereas, Muslims will get death punishments, even they are not
directly involved in the crime or voluntarily submit to remove the stigma of
accusation in any sort of crimes is quite discriminatory and is based upon
inequality.
Notably, Indian society,
fraught with a faulty judicial system can not claim or project itself as
progressive.
It is the right hour
that international community should take notice of the situation of grave human
rights violations and increasing anti-minorities’ violence
in India where judiciary is also supportive to the perpetrators of
crimes. Otherwise, Indian odd judicial system will continue,
supporting Hindu extremists and extending judicial impunity to target the
minorities.
Sajjad Shaukat writes on
international affairs and is author of the book: US vs Islamic Militants,
Invisible Balance of Power: Dangerous Shift in International Relations
Email:
sajjad_logic@yahoo.com
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