Each of us can have different positions on whether Yakub Memon got justice or not. But the debate on this issue did not get justice. At least not on TV news.

The outcome of the Mumbai blast trial that convicted Yakub Memon made prime-time news for over three days (including yesterday) across channels.

There was a mishmash of issues that were all being debated at once, with an anchor occasionally interjecting with a random comment that may or may not have something to do with the specific point being made. Also, there was, in many cases, an assumption that there are only two positions – for Memon’s hanging or against it, and everyone was on one or the other side on this.

There are many aspects to the Yakub Memon trial and sentencing. I list six below and one can have different positions on each or no position on some while having a position on others. It is important to separate them. Instead, we often get shouting matches on issues that may not be mutually exclusive.

1. Was Yakub Memon guilty? Also, what was he guilty of?

There can be three positions here.

–    That he was not guilty either of criminal conspiracy or of assisting those involved in the conspiracy. He had nothing to do with anything.

–    That he was guilty of criminal conspiracy knowing fully well that there was a plan to set off serial bomb blasts across Mumbai that would kill hundreds.

–    That he did help with tickets, logistics, money and lodging but did not know what the conspiracy was, and was not aware it involved bombs and hundreds of deaths.

One has to argue any of these positions on the basis of evidence of the case. This has nothing to do with ideology.  Whether he surrendered or not, does the death penalty have any place in a civilized society or not, do victims deserve revenge or does a society deserve justice (what if there is a conflict), are we a communal nation or not – all these questions have nothing to do with any of the positions above.

2. Yes, he was guilty. But did Yakub Memon deserve the death penalty?

You can be pro-death penalty (the third aspect to the debate listed below this one) and disagree with this, for four possible reasons.

–    That he had struck a deal with the investigating agency to cooperate in exchange for a lenient view. (This brings us to another debate, which is number 4.)

–  That his part in the conspiracy to bomb Mumbai was marginal and did not deserve death.

–  He was not given the same treatment as others who were directly involved. Memon was the only one of the 11 people convicted for the 1993 attacks to have his death sentence upheld on appeal. The sentences of 10 others were commuted to life imprisonment.

–    The death penalty is a primitive and outdated idea that should be done away with.

Having spoken to a few lawyers, here is what I learnt. If he did strike a deal to get clemency, there doesn’t seem to be any record of it. It’s possible that an officer of the Central Bureau of Investigation or any other agency induced him with some promise but unless it has legal sanction it isn’t really a case. There is no provision where an investigating officer can guarantee leniency or amnesty. It seems by some records that assurances were given to him by investigators and, at best, they could have offered to make him an approver. All of these circumstances come with the risk that it won’t work out. In any case, investigating agencies aren’t known to play it by the book. His arrest most certainly was not as was presented (that he was wandering on a railway platform) but that does not mean there was a deal for his life.

If one’s view is that he was a marginal player and was guilty but only of marginal assistance, it will have to be argued with details of who did what, who spoke to who and his movements. Again, on very minute details of the case. Most of which are not in the public domain.

If one is against the death penalty altogether, well that’s fine but to be effective one will have to shout this from the rooftops at every death sentence. This case already had so many angles being debated that the pro-life argument was bound to get lost. Strategically bad timing, even though the mission may be noble.

My position: I don’t have a position on this because I’m a fence sitter on the death penalty.

3. Should there be death penalty at all?

On this, I think there is a solid case on both sides. The moral argument without a doubt being the stronger but then there are cases like this and this. I find it hard to argue that people such as Jesse Pomeroy should be kept alive even though the United Kingdom has abolished executions and Jesse was serving a life term. He committed suicide by hanging himself in prison using bed-sheets, even as the state refused to execute him.  There have been cases of serial killers asking the court to put them to death lest they go out and kill again. What does one do with such people?

At the same time, there are about a 100 countries and an ever-growing list (click and download full spreadsheet to see data on this) that are getting rid of executions. The list of countries that still have execution, you will notice, is not the most desirable one to be on.

My position on this is undecided. I can see why abolishing the death penalty  is a strong argument. I just find myself coming across a few instances where it would be hard to justify keeping someone alive. And you can’t be anti-death penalty except for that one case. You’re either in or out.

4. Was Yakub Memon shafted after being offered a deal to cooperate in exchange for leniency?

There are many sides to this argument.

–    One could say he was offered a deal and he did deliver his end of the bargain by helping the investigating agency and courts.

–    One could say he was given a deal but he didn’t really provide any useful information and all that he gave was already known.

–    Or that a deal by the agency is not a legal undertaking. Even if an agency does promise something, the court will decide on the punishment. It’s a gamble.

No one except him and the investigating agency could claim this for sure. That he agreed to get his family back to India seems to suggest that he must have been given some assurance for their safety. But then was the assurance of safety for only his family or him personally, is hard to say.

5. Do the victims and families of victims deserve to see him dead? Is justice revenge?

One side can argue that “closure” for victims is only achieved by killing the convict as Arnab Goswami and the Sangh brigade did on Times Now. That’s a terrible argument. A hundred countries around the world don’t have the death penalty and they get closure just fine. Do victims or their relatives decide what punishment should be given? Do angry families decide quantum of punishment? Also in any trial where the death sentence isn’t given, do those victims never get closure? Jessica Lal, Sanjeev Nanda, Naina Sahni–Sushil Sharma, Nithari, Vikas Yadav, Salman Khan drunk driving case, Uphaar tragedy are all cases with victims and very angry families, but in very different circumstances. There is a chance every victim’s family would want the accused dead, whether there was intent of harm or not. Does that mean an emotionally distraught family member who would probably want blood irrespective of the law be part of justice served?

You can disagree with this position and still agree with Yakub’s death penalty. Because it is possible to argue the death penalty is a court giving justice, and in this case execution is justice, not because the mob wants blood.  Besides Gladys Staines forgave her children’s killer, Dara Singh (even though she didn’t ask for his death penalty to be commuted to life). But if forgiveness is closure, do forgiven people not deserve death? Do victims decide what to do with the convict? Is that why Dara Singh’s death sentence was commuted to life even though he burnt alive two children and their father? I don’t think that’s how justice works.

6. Was he put to death because he is Muslim and currently that’s not a great political constituency?

Is there selective and inconsistent positions taken by the state? For example, the government of Gujarat has asked the investigating agency to not seek death penalty for Maya Kodnani.

Does the political climate and dominating ideology influence decisions? Are there different yardsticks? Is there any way to really understand why we have different outcomes of death penalties?

This debate will almost certainly be ideological and political. Also, not much can be achieved through data from crime records or the facts of the Yakub case specifically. Things like this are hard to irrefutably establish. This will almost certainly be driven by your political ideology.

It was reported that the Supreme Court Bench of Justices P Sathasivam and BS Chauhan upheld the verdict of life imprisonment for Dara Singh by dismissing CBI’s call for death penalty.  The Supreme Court Bench headed by Chief Justice P Sathasivam and Justice BS Chauhan rejected Yakub Memon’s application for oral hearing and dismiss his review petition by circulation. There is possibly no way to conclude, why and when executions go through.

It is possible to hold a view that Yakub Memon was guilty, deserved the maximum punishment that the law can deliver, which happens to be death, but not believe in the death penalty in general and accept it for now because currently it has a place in our law books.

It is also possible to have the position that he was guilty but not of a crime that deserved death while being pro-execution and disagreeing with point number 6, that is, religion has something to do with it.  Or you could believe in capital punishment, that there is no religious discrimination in India, that victim’s views matter in serving justice and that Yakub Memon was innocent.

There are many permutations and combinations of positions that one can have of the above six points. It’s important TV news anchors allow guests that nuance, while also acknowledging the difference themselves instead of wanting us all to be part of either a lynch mob or a candle-light vigil without going into specifics of the case, which would have been much more helpful.