On Wednesday, India’s top court upheld the judgment of the Mumbai High Court that Ajmal Kasab, the sole surviving gunman in the 2008 Mumbai terrorist attacks, should hang to death. The Supreme Court charged Kasab with waging war against the nation — a crime that carries the death penalty in India — and said it had no option but to uphold the earlier judgment. Kasab was among ten men who carried out attacks on key Mumbai landmarks including two hotels, a railway station and a Jewish center, killing 166 people on November 26, 2008. The court turned down Kasab’s main defense that he was not given a fair trial. “Not providing counsel to Kasab by the government at pre-trial stage,” the judgment read, “does not vitiate his trial in the case.”
Kasab’s conviction was based on the now-infamous video footage of him striding along the Chhatrapati Terminus in Mumbai, an AK-47 in his hand and a backpack slung casually on one shoulder. In February 2009, over a year after the carnage, Indian investigators filed an 11,000-page charge sheet against him for murder, conspiracy and waging war against the nation. The first death sentence against Kasab was pronounced in May 2010, 18 months after his capture, by a lower trial court in Mumbai, and upheld by the Mumbai High Court in October last year. At the time, the Mumbai High Court rejected Kasab’s defense plea that he was mentally unstable. “He did not appear to be repentant at all. He was perfectly sane,” the court said at the time. “In some cases, the harsh penalty of death is necessary to warn those who may want to take a similar path … Soft handling of a crime like this will erode the public confidence in the efficacy of law.” The 25-year-old terrorist appealed to the Supreme Court in February to convert the death penalty to life imprisonment.
After today’s ruling, India now has more than 400 people on death row. And while the government has been slow to carry out those sentences — the last execution was in 2004, when a former elevator man was hanged for raping and murdering a 14-year-old girl in Kolkata — it has also been immune to demands from both domestic and international human rights groups for the punishment’s abolition. In December 2007, India was among the few countries that voted against a moratorium on executions at the United Nations General Assembly along with Pakistan, China, and the U.S., among others.
The debate over the death penalty in India can be traced back to 1937, when Mahatma Gandhi wrote that he considers a “death sentence as contrary to ahimsa [non-violence]” and that “a murderer would be sent to a penitentiary and there given a chance of reforming himself.” But the law was enshrined in the Constitution nevertheless, and in 1967, a report of the Law Commission on Capital Punishment effectively ended what legal debate had been happening. Set against the backdrop of several private member bills for abolition of the death penalty throughout the 1950s and 60s the report noted that because of the “paramount need for maintaining law and order … India could not risk abolishing capital punishment.” Later, in the 1980s, the Supreme Court restricted the use of the death penalty by defining it as punishment for the “rarest of the rare” cases, a practice which the court maintains today.
A 2008 report by Amnesty International, India and Peoples Union for Civil Liberties (PUCL), Tamil Nadu Puducherry claimed that the “death penalty in India has been an arbitrary, imprecise and abusive means of dealing with crime and criminals,” and recommended further investigation leading to an informed debate on the issue and “while this is ongoing, a moratorium on executions.” Law minister Salman Khurshid recently disclosed his personal view that the “death penalty should be abolished,” but acknowledged that “incidents of terrorism have detracted debate on the issue.” Vijay Hiremath, a lawyer who practices at the Bombay High Court says that “it’s unfortunate what happened on 26/11, but death penalty cannot be the solution. Let’s not forget that our security system also failed in letting these attackers to reach India.”
Today’s ruling is unlikely to come as a huge surprise to many in Pakistan, where Kasab was from, as the case has been in progress for four years. The verdict may, however, figure prominently in the dialogue between Indian Prime Minister Manmohan Singh and Pakistani President Asif Ali Zardari on the sidelines of the Non Alignment Movement’s (NAM) meeting in Tehran on Thursday. “Most people in Pakistan are reasonably convinced about the evidence that is on the public domain and presented through the judicial process,” says C. Uday Bhaskar, a Delhi-based political analyst. “The so-called extreme right wing [in Pakistan] may however see this as a point for rally.”
Meanwhile, in Delhi today, the mood was more of vindication than protest. The opposition Bharatiya Janata Party was blunt in its reaction when they said “Kasab should be hanged without any delay. Enough biryani for him.” After losing his plea at the Supreme Court, Kasab can now appeal for presidential clemency. But it might be years before a final decision is reached. Any presidential pardon is taken in consultation with the council of ministers. With politicians across the board clamoring for a quick execution of Kasab’s sentence, it is unlikely that President Pranab Mukherjee, an astute politician from the embattled, ruling Congress party, will risk the uproar.
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