YAKUB MEMON’S HANGING: CAN WE BE NEUTRAL IN A MOVING TRAIN?

The score is 2-1, the cynics say.

Kasab and Afzal Guru to one side. Yakub Memon to the other side.

The courts, the pre-ordained referee.

The game of terror to what the fight against terrorism seems to have been reduced to is on.

And there’s a full house, so justice be damned.

There is no doubt about the role played by these three accused persons in the separate terror acts that rocked India. They needed to be brought to book. The problem is with the manner in which it was brought about in the case of Afzal Guru and today, Yakub Memon.

Hitler wanted Germans to turn in Jews. That was the law. It was therefore legal to snitch on a Jew hiding somewhere. You would be declared a law-abiding citizen if you ensured there was one Jew less in your locality. The Gestapo would laud you, the local court would back your act.

Is law an instrument to follow blindly? Isn’t its efficacy determined by its interpretation? Can’t say, the law-abiding Germans said after it was all over for them in 1945: We were only following orders.

The murder of Jews was a legal act, as far as they were concerned.

The Obama administration, we are told, thought it would be upholding the law against terror if it used unmanned drones to kill American citizens suspected of terrorist links.

The Indian State was also upholding the law by executing Yakub Memon on his 54^th birthday.

Some time in the future we will know if terrorism was dealt a deathly blow by Yakub’s execution, whether death penalty is a violation of human rights, whether Yakub was promised immunity and was eventually cheated out of it, whether he deserved the death warrant, whether the issue of the warrant while passing the test of the law, as the Supreme Court noted, also passed the test of justice.

Meanwhile, we will hear voices, lots of voices, all voices of protest which, if we didn’t know better, would make Yakub seem actually innocent. So, what’s the issue?

I hear a susurrus of lament that the law is about conforming to the detailed instructions of a State edict, that it has nothing to do with justice. They say that the law deals with evidence and not necessarily the truth. They say that it is a contest between evidence and fact. The winning side argues the evidence that could be proved in court. Not necessarily the facts. And when a case results in a judgment, it is said the purpose of truth has been served. But then, we are told that fact is objectively real, while truth must conform to fact. In which case, how can law be said to have served the purpose of fact or truth, when both are distinct in character with evidence, the only variable the sentiment-free law is capable of dealing with?

In the 1940s in Germany, loyal Germans saw a Jew hiding in a closet, reported to the police. The police picked up the Jew. The courts said there was clear evidence the German did see the Jew hiding in the closet and reported him and that it was as per law. The law, or the process of the law, did not give enough incentive to the German to think if reporting on a Jew – which would eventually lead to his/her murder – was right or wrong. The German was not expected to pause to explore any personal feelings for the Jew or consider, for a moment, whether the propaganda was true that the Jew who ran a clinic in the day and taught music in the evening was an evil person. The German did not have to wonder if the law was bad in taste, if it was undemocratic, if it was the product of a fascist agenda, if it was a gross miscarriage of justice.

Theoretically, these arguments arise out of a paradox that has befuddled man ever since King Charles signed the Magna Carta and set up the courts to enforce law, monitor its process and arbiter disputes arising out of it. The paradox runs something like this -- Murder requires death. It is part of the fundamental reciprocity that is the law. If there is no death, there is no murder, therefore no law. You need to prove there is a death and that the death was caused by murder. Only then, mind you, only then, law comes into existence. Else, not. 

You murder someone, you bring law into existence. You spread a terror act, you allow law to breathe. You commit a rape, arson, indulge in mayhem, whatever, you have given law a form and a shape and an existence.

But you do not commit any of these acts, but merely think about them, agitate over them in your mind, you do not attract the law and you are still innocent. Never mind if such thinking determines your entire approach to your life and your attitude to the world or drives your ideological positions – that’s what human nature is all about and history is full of them. You are still innocent in the eyes of the law.

By this logic, we are all innocent until we commit any act which attracts the law. Whether you are a voyeur who is thinking of having forced sex with a lady sitting opposite you in the metro; whether the medical student who would love to buy the leaked question paper; whether the upper caste government clerk who is angered by the promotion of a lower caste colleague thanks to the reservation policy; whether the abused wife who would like to murder her husband; whether the disillusioned youth who keeps thinking of blowing up a locality or even a town; whether a raped woman who would want to get hold of a weapon and kill all males; whether a bureaucrat in a defence organization who had heard of making money bartering secrets.

You can’t be neutral on a moving train. I’m reminded of the title of the memoirs of the flamboyant American anti-war activist, Howard Zinn. The words ring true. We are on a moving train. We are humans and like humans we all have bad thoughts, some of us commit bad acts. Yet, as humans, as citizens of this government, as members of our community, as participants in our government, in fast as a nation, we are all moving in the same direction. Often, the State would want us also to be obedient in moving in the same direction. If obedience is a strong word, it would want us to be at least neutral, by not taking a stand either way. Even then, its purpose is achieved. The question is, are we content remaining neutral?

All this verbosity can be summed up in a sentence actually: Law is everything but human.  Change it if it is wrong. Change the law-makers if they are wrong. The noise over Yakub Memon, howsoever justified, makes no difference if it remains just that – a noise.

As Louis Brandeis, the first Jew appointed as a justice of the US Supreme Court and untiring social justice activist, remarked: If we desire respect for the law we must first make it respectable.