BY PRAFUL BIDWAI
BY secretly hanging Ajmal Kasab for the 2008 Mumbai terrorist attacks, the Indian government committed a Constitutional impropriety and virtually ensured that the attacks’ masterminds wouldn’t be brought to justice.
Kasab’s execution exposes the crassness of "the hangman’s justice" and should trigger a demand for the abolition of the death penalty.
The Constitutional impropriety lies in a failure of due process — to inform Kasab of his right to seek a judicial review of the rejection of his mercy petition by the President, Mr Pranab Mukherjee on November 5. While communicating the decision to Kasab one week later, the government should have told him that the rejection doesn’t close all legal avenues; he could still move the Supreme Court to review it.
This was Kasab’s right under the Constitution’s right-to-life Article 21, which applies to foreign nationals too. The Supreme Court has the power to review and even reverse the President’s rejection of mercy petitions, based on the home ministry’s recommendation, if the rejection is based on bias and incomplete consideration of evidence, or is otherwise wrongful.
A Peep into Past Cases
The Court explicitly clarified this in the Kehar Singh verdict (1989) on Indira Gandhi’s assassination. It held the courts have the power to examine the material on the basis of which the rejection is decided. The President’s pardoning power is totally different from the judiciary’s power of review. But both institutions are fallible.
India’s Constitution provides checks and balances against this. If the judiciary fails, the President has the power to correct it. If the President’s exercise of this power is questionable, the judiciary can ask him to reconsider his decision.
The review right has been used many times by convicted people or their relations — e.g. three men sentenced for Rajiv Gandhi’s assassination, by Devinder Pal Singh Bhullar, convicted for a 1993 terror attack in Delhi, and even by rapist-murderer Dhananjoy Chatterjee, the last person to hang before Kasab, in 2004.
In Kasab’s case, the Indian state followed due process through the trial and right until he made his mercy petition to the President. But it faltered at the very last stage. The President Mr Mukherjee failed to disclose his reasons for rejecting the petition and lost an opportunity to promote transparency and the rule of law.
The suddenness and secrecy surrounding Kasab’s execution raises suspicions that it was conducted for extraneous reasons — on the eve of Parliament’s winter session, when the ruling United Progressive Alliance is in the dock over scandals and unpopular policies.
The hanging took the wind out of the Bharatiya Janata Party’s strident campaign claiming the UPA lacks the courage to act against terrorists. The BJP cites the case of Afzal Guru, convicted for the Parliament House attack of December 2001. It also put out of the limelight the aftermath of Bal Thackeray’s death. And it gave the Congress a macho image in competing with the BJP.
According to The Indian Express, Maharashtra’s prison authorities had made elaborate preparations for hanging Kasab in Pune, whose timing would be decided by the state of Thackeray’s health. The fallback plan was to hang Kasab in the Mumbai jail where he was lodged — in contravention of Maharashtra’s practice of hanging convicts only in Pune or Nagpur.
This speaks of the political executive’s deviousness and venality and sets a terrible precedent. Tomorrow, the UPA may hang Afzal Guru just before the next election for political reasons.
There’s a huge difference between Kasab and Guru. Kasab’s gunning down of innocent people was televised in real time and watched by millions. Guru didn’t kill directly, nor was he so charged. Explosives were allegedly recovered from his hideout later. Accused of conspiracy, he was tried under the highly controversial, now-repealed Prevention of Terrorism Act, which allows confession before a police officer as evidence.
It can be persuasively claimed that Guru’s guilt wasn’t established beyond doubt on strict judicial criteria. Yet the court order upholding his conviction said the Parliament attack "has shaken the entire nation" and society’s "collective conscience" will be satisfied if "capital punishment is awarded" to him.
Given the secrecy, it wouldn’t be uncharitable to conclude that the government didn’t weigh the merits of summarily hanging Kasab vis-à-vis using his testimony in the trial in Pakistan of seven men led by Laskar-e-Toiba commander Zaki-ur-Rehman Lakhvi for the Mumbai attacks.
Kasab was a rare asset — one of the few foreign terrorists caught alive in India. Yet, very little solid evidence based on his interrogation was provided to the Pakistani trial court. Nor was Kasab produced there.
Under Pakistani — and Indian — criminal procedures, Kasab’s confessional statement won’t count as evidence without his cross-examination. When a Pakistani judicial commission visited India in February, it recorded the statements of the magistrate before whom Kasab made his confession, and the police officer who interrogated him. But it wasn’t allowed to cross-examine them, leave alone Kasab.
Kasab’s elimination makes it unlikely that the Mumbai attacks’ plotters/handlers will be convicted. Two among their battery of lawyers, Mr Shahbaz Rajput and Mr Khwaja Haris Ahmed, say that the defence "case just got stronger"; Kasab’s statements now "have no legal value".
Just imagine a different scenario, with Kasab’s cross-examination. He would have identified the men who inspired, trained, guided, and commanded the 10 young men sent to attack Mumbai, including Lakhvi and Abu Jundal. If televised to international audiences, this would have impelled Pakistan to move faster on the trial and bring the attacks’ plotters to justice.
This was not to be. The trial will probably soon lose its momentum. Pakistani courts have handed out just two convictions in terrorism cases in 15 years. In the first, the accused was eventually set free. In the second case, the judge who sentenced the killer of Salman Taseer fled Pakistan and hasn’t been heard of since.
Death Penalty Should be Abolished
The time has come to abolish the death penalty, as more than two-thirds of the world’s nations have done. No state has the moral right to take anybody’s life. Capital punishment is inhuman, cruel and degrading, and is disproportionately awarded to the poor and underprivileged everywhere.
It doesn’t deter killing and heinous crimes. In the US, for instance, death-penalty states have a much higher rate of murder than non-penalty states. It’s just a crass act of revenge, which legitimises senseless violence while undermining human solidarity.
Many innocent people have been executed because of inadequate legal representation, judicial misjudgment, false testimony or police prejudice and sloppiness. Such prejudice recently became starkly evident in India in the Lajpatnagar blasts case, leading to acquittals. In the US alone, more than 130 people were released from the death row since 1973 because they were proved innocent.
In India, 14 former Supreme Court and High Court judges have asked Mr Mukherjee to commute the death sentences of 13 people, based on the Supreme Court’s own admission that some of these were rendered per incuriam (out of error or ignorance). Such commutation must become the first step towards abolition. We cannot play with human life in a sordidly inhuman manner.