Millennium Post

Why a live Kasab could have helped us more

By secretly hanging Ajmal Kasab for the 2008 Mumbai terrorist attacks, the government committed a gross Constitutional impropriety and almost wrecked the chances of the attacks’ masterminds being brought to justice with Kasab as an invaluable witness. Kasab’s execution in Operation X 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 President Pranab Mukherjee. 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 the rejection.

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 decision to reject mercy petitions, based on the home ministry’s recommendation, if the rejection is based on bias, incomplete consideration of available evidence, or other wrongful reasons. The Court explicitly clarified the judicial review issue in the five-judge Kehar Singh verdict (1989) in 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 under Article 72 is totally different from the judicial power of review. Chief Justice RS Pathak said: ‘to any civilised society, there can be no attributes more important than life and personal liberty of its members … recourse is provided to the judicial organ for its protection … There is always a possibility of the fallibility of human judgment.’

The Constitution provides checks and balances against this. If the judiciary fails, the President has the power to correct it under Article 72. If the President’s exercise of this power is questionable, the judiciary may ask him to reconsider his decision.

The right to demand a review has been used many times by convicted people or their relations—e.g. Santhan, Murugan and Perarivalan, sentenced for Rajiv Gandhi’s assassination; by Devinder Pal Singh Bhullar, convicted for a 1993 terror attack in Delhi; Mahendra Nath Das, and even by Dhananjoy Chatterjee, convicted for rape and murder. Chatterjee’s review petition against the President’s rejection of his mercy plea was heard by the Calcutta High Court, but eventually turned down.  He became 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. President Mukherjee failed to disclose his reasons for turning down the petition and lost a unique 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. Coincidentally, just two days earlier, India voted with 38 countries against a United Nations resolution calling for the abolition of capital punishment, adopted with 110 votes in favour. The hanging has taken the wind out of the sails of the Bharatiya Janata Party’s strident campaign which alleged that the UPA lacks the courage to act against terrorists, for which it repeatedly cites the case of Afzal Guru, convicted for the Parliament House attack of December 2001. It also took out of the limelight the aftermath of Bal Thackeray’s death. And it gave the Congress a macho image with which it can compete with the BJP.

According to a leading newspaper, 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 doesn’t speak of scruple and honesty, but of deviousness and venality and sets a terrible precedent of the political executive playing with human life for short-term gains. Tomorrow, the UPA may decide to 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 personally kill, nor was he so charged. He wasn’t even present at Parliament House. 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 made by an accused before a police officer as evidence.

Frankly, it can be persuasively claimed that Guru’s guilt wasn’t established beyond reasonable doubt on strict judicial criteria worthy of a civilised society. The Supreme Court order upholding his conviction despite flaws didn’t enhance the conviction’s credibility. It said the Parliament House attack ‘has shaken the entire nation and the collective conscience of the society will be satisfied if the capital punishment is awarded to the offender.’

Home Minister Sushilkumar Shinde boasted that he kept Operation X a secret even from Prime Minister Manmohan Singh and Congress president Sonia Gandhi. So it wouldn’t be uncharitable to conclude that there was no deliberation within the government weighing the merits of summarily hanging Kasab vis-à-vis using his testimony in the trial under way in Pakistan of seven men led by Lashkar-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. His confession, handed over to Pakistan, won’t count as evidence unless he is cross-examined. When a Pakistani judicial commission visited India in February, it recorded the statements of the magistrate before whom Kasab confessed, and the police officer who interrogated him. But it wasn’t allowed to cross-examine them, let alone Kasab. Under Pakistani—and Indian—criminal procedures, there’s no valid evidence without cross-examination. India’s Criminal Procedure Code has a provision to allow cross-examination, but the home ministry feared that Pakistan’s inferences from Kasab’s interrogation might differ with India’s, leading to complications when the Supreme Court was hearing his appeal last August. Kasab’s elimination has immensely strengthened Lakhvi’s case and weakened the chances that the Mumbai attacks’ plotters/handlers will be convicted. Two among their battery of lawyers, Shahbaz Rajput and Khwaja Haris Ahmed, told a magazine that the defence ‘case just got stronger’; now Kasab’s statements ‘have no legal value.’

Just imagine a different scenario under which Kasab’s cross-examination were allowed. He would have identified and pointed to 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 had a dramatic impact and impelled Pakistan to move faster on the trial and bring those who plotted the attck to justice.

This was not to be. The trial will probably soon lose momentum. Pakistani courts are reluctant to act in terrorism cases, and have handed out just two convictions in 15 years. In the first, the accused was eventually set free. In the second case, the judge who sentenced the killer of former Punjab governor Salman Taseer fled Pakistan and hasn’t been heard of since.

Kasab’s execution will stoke mutual suspicions and set back the goal India has set to achieve a breakthrough in relations with Pakistan, including ambitious liberalisation of trade and visa regimes.

If Sarabjeet Singh, convicted for terrorist attacks in Pakistan, is executed, mutual relations will be further embittered. (IPA)
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