India’s Odd Judicial System

Indian womanBy 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


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