There was no denial of due process to Kasab
By Soli J Sorabjee | Published: 25th November 2012 12:00 AM |
The trial and execution of Ajmal Amir Kasab evoked divergent reactions. Kasab had indubitably murdered our citizens and policemen with premeditated cruelty. Therefore, a majority of people felt that Kasab did not deserve a long, protracted trial. This overlooks the salient fact that Article 21 of our Constitution guarantees a fair trial to citizens and non-citizens alike. Besides, the rule of law–to which India adheres—would not countenance denial of due process of law to Kasab. A test of belief in one’s principles is that you apply and act on them in cases with which you have the least sympathy. Kasab was provided legal assistance in the trial court. His case was considered meticulously by the trial judge M L Tahiliani who convicted Kasab. Thereafter, the Bombay High Court, and subsequently the Supreme Court, analysed the evidence and various aspect of the case thoroughly. A senior, experienced lawyer Raju Ramachandran was appointed as amicus by the Supreme Court to ensure there was no denial of due process to Kasab. It is undeniable that Kasab had a fair and full trial. Kasab’s conviction was upheld by the Supreme Court in a detailed, well-reasoned judgment and death sentence was awarded to him.
There is indeed an element of subjectivity in determining the rarest or rare category of cases. Kasab’s case, however, clearly fell within that category because according to the Supreme Court, “this is a case of terrorist attack from across the border. It has a magnitude of unprecedented enormity on all scales. …in its traumatizing effect, this case stands alone, or it is at least the very rarest of rare to come before this court since the birth of the Republic.”
As regards mercy petitions to the president, the settled legal position is that in this matter the president or the governor does not act in exercise of his individual judgment or discretion but has to act in accordance with ministerial advice. The correctness of the judgment of the Supreme Court which accorded death sentence and which had attained finality is not the subject matter of a mercy petition. Relevant factors to be considered in a mercy petition are, for example, the age of the convict, the number of years he has spent in jail, his jail record, his present physical condition such as whether he is suffering from terminal cancer and according to medical reports is not likely to live long, whether there is any possibility of reformation and such allied factors. Kasab had shown no remorse at any stage before execution for his heinous crimes. Rejection of Kasab’s mercy petition cannot be termed unconstitutional. Kasab met his inevitable just deserts when he was executed by hanging on November 21, 2012, in keeping with the provisions of the jail manual which accords certain facilities to the jail convict on the death row.
Is Kasab’s execution a matter for celebration? I think not because all said and done, when human life is extinguished, even according to the mandate of the law, that is not by itself a reason for celebration. Celebration should be for vindication of criminal justice and the rule of law. It is shocking that according to a senior Lashkar-e-Toiba commander, Kasab was a hero and will inspire other fighters to follow his path. It is this vicious perverted mentality of the Pakistan Taliban that has urged attacks on Indian targets anywhere to avenge the execution of Kasab. It is forgotten that the mass murderer Kasab was not killed by the police or security forces in violation of international law which was the case when Osama bin Laden was killed in Abbottabad by the US Navy seals. The argument that Kasab should not have been executed because of lethal retaliatory action is to succumb to blackmail and intimidation. It would be subversive of the rule of law and make a mockery of the judgment of our apex court.
Sorabjee is a former Attorney General of India