[LST] Kasab's case and judgement-Interview with Global Subramanian

Volume 29 - Issue 22 :: Nov. 03-16, 2012
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU • Contents




JURISPRUDENCE

Gaps in Kasab case

V. VENKATESAN
It took four long years to sentence Ajmal Kasab to death for his role
in the 26/11 terrorist attack. But this delay is no evidence in itself
that due process was followed at every stage of the case.
REUTERS

Mohammed Ajmal Kasab.
ALTHOUGH Mohammed Ajmal Amir Kasab's involvement in the terrorist
attacks in Mumbai in November 2008 is an open-and-shut case, it took
nearly four years to conclude because of India's commitment to the
rule of law and the requirement to follow the due process of law.
However, this delay is no evidence in itself that due process was
followed meticulously at every stage of his trial, conviction,
sentencing and appeal.

S.G. Abbas Kazmi, Kasab's court-appointed lawyer in the trial court,
first applied for an inquiry into Kasab's age on the grounds that he
could be a juvenile. According to Section 7A of the Juvenile Justice
Act, 2001, whenever a plea is made that an accused is a juvenile, the
court has to conduct an inquiry and return a finding about the age of
the accused. Special Judge M.L. Tahalyani of the trial court summarily
rejected his application because he saw it as a time-wasting tactic.
Ujjwal Nikam, Special Public Prosecutor in the 26/11 case, realised
that this would give Kazmi grounds for appeal, and so a few days
later, he made an application with an identical prayer—to conduct an
inquiry into Kasab's age. And this time the application was allowed.

During the inquiry, the prosecution relied on the expert evidence of
doctors who opined, on the basis of X-rays (ossification test), that
Kasab was about 21 years of age. Kazmi's request for a copy of the
X-ray report to seek the opinion of other experts was turned down.
Kazmi was told that his witnesses could examine the report when they
stepped into the box to give evidence and there was no need to furnish
the report in advance. Getting other experts' opinion may have helped
Kazmi in contesting the technical evidence.

(It is well settled that medical evidence of age is unreliable, and if
there is even a slim chance that a juvenile is being sent to the
gallows, that should be eliminated.)

During the confirmation proceedings in the Bombay High Court, Kasab's
lawyers made an application seeking another medical test to confirm
his age. This application was also rejected even though High Court
confirmation proceedings are deemed to be a continuation of the trial
court proceedings and a counsel is free to lead new evidence relevant
to the issue of guilt or sentencing.

The charge sheet in this case runs to more than 20,000 pages. Kazmi
sought sufficient time to study these papers and prepare for the
trial. He was given eight days, of which three days were spent in
court pleading for medically examining Kasab's age. Yet the court
concluded that Kazmi was allowed ample time for preparation and that
he never complained about it.

Kazmi, however, told Frontline over phone from Mumbai that he did
complain about the insufficient time given to him and this was part of
the court's record. During the trial, Kazmi sought the trial court's
permission to inspect the various places connected with the terrorist
offences, especially the boat Kuber, which had allegedly been used by
Kasab and other terrorists to reach Mumbai's shores and had been
recovered under Section 27 of the Evidence Act. It had Kasab's
fingerprints and DNA samples. A study of the spot was necessary if
Kazmi had to cross-examine witnesses who deposed to these aspects of
the case. But the court refused permission.

Kazmi's dismissal

Kazmi also raised objections to the permission given to the
prosecution to adduce evidence through affidavits rather than orally,
which would have enabled him to cross-examine witnesses. But the trial
court dismissed Kazmi himself, saying he was not cooperative. (Under
the Code of Criminal Procedure (CrPC), a judge does not have the power
to dismiss a lawyer. He can report the lawyer to the Bar Council if he
wishes.) By this time Kazmi had examined about 250 witnesses and was
well acquainted with the case. His replacement, K.P. Pawar, was the
lawyer originally appointed by the court to assist Kazmi.

The eminent legal expert Fali S. Nariman, in an article in Mumbai
Mirror, said that the dismissal of Kazmi rendered the trial unfair.
"Mere non-cooperation is no grounds for removing the lawyer when the
accused has his confidence in him, and this may perhaps vitiate the
final verdict in the case," he said, and added that Kazmi's dismissal
did not appeal to his sense of justice.

Strangely, the issue of Kazmi's dismissal by the trial court did not
figure in the Bombay High Court's judgment dismissing Kasab's appeal.
The Supreme Court's judgment, delivered on August 29 by a Bench
comprising Justices Aftab Alam and Chandramauli Kumar Prasad, while
dismissing Kasab's appeal against the High Court judgment also omits
any reference to Kazmi's dismissal by the trial court and does not
throw any light on whether it was fair. Kazmi himself did not
challenge his dismissal, but filed a petition alleging that the trial
judge committed contempt of court. The High Court dismissed this
petition in June this year, but not before expunging certain
disparaging remarks made by Judge Tahalyani, such as calling Kazmi a
liar.

For the High Court proceedings, two senior criminal lawyers, Amin
Solkar and Farhana Shah, were appointed to defend Kasab. They applied
in writing to be allowed to meet Kasab without the police being
present within hearing distance. The High Court Bench, which heard
Kasab's appeal, denied them permission on the grounds that Kasab was
likely to harm the lawyers.

During the confirmation proceedings in the High Court, the lawyers
made an application to have Kasab psychologically evaluated; this they
wanted done not to plead insanity for Kasab but to bring on record
mitigating circumstances as the defence is required under law to do
during a sentencing hearing. This application too was dismissed.

Amicus Curiae's stand

Raju Ramachandran, Senior Advocate in the Supreme Court, told
Frontline that as the Supreme Court-appointed amicus curiae (friend of
the court), he was a defence lawyer for Kasab. But he added that he
did not feel the need to meet Kasab even once to take instructions
from his client before arguing his case before the Supreme Court. The
reason, according to him, was that the case records from the trial
court and the High Court were fairly exhaustive and there was no
occasion to meet Kasab. Here, the key question to ask is whether the
failure to meet Kasab hindered Ramachandran's ability to argue on his
behalf.

Ramachandran responded to an e-mailed question from Frontline as
follows: "Neither the High Court nor the Supreme Court takes evidence,
either on the facts of the case or on the state of mind of the
accused. The appellate court's view or even the trial court's view on
the question of sentence (of which remorse is but one aspect) has to
be based on the evidence on record. A counsel's impression based on an
interview is quite irrelevant. In fact, if such an impression is to be
taken into account, a counsel would become a witness. The Supreme
Court's view on remorse or lack of it was based on the record to which
its attention was drawn."

But is Ramachandran also not duty-bound to help Kasab draft his mercy
petition to the President, after the dismissal of his appeal by the
Supreme Court? The fact that he did not help Kasab in this matter is
curious. His response to Frontline was as follows: "Here again, the
advice of the amicus could have been sought through queries through
the registrar, but this was obviously not considered necessary. This
option was obviously made known to him in jail itself, as I am sure it
is to others on death row."

Death sentence

One of the important arguments against imposing the death sentence in
terrorism cases is that a terrorist commits the horrendous crime in
order to achieve martyrdom and also to inspire future martyrs to his
cause. Therefore, imposing the death sentence on the person accused
and convicted for terrorism and waging war defeats the very objective
of the death sentence, which is to deter such crimes.

But the Supreme Court's judgment in Kasab's case ducked the issue of
deterrence altogether. It relied on Kasab's statement that he aimed to
become a martyr as proof that he had no remorse and, therefore, could
not be reformed.

The court apparently found merit in the amicus curiae's suggestion
that the court ought not to consider the probable consequences,
whether kidnapping or martyrdom, but follow the principles laid down
in the Bachan Singh vs State of Punjab case while sentencing Kasab.
The trial court justified imposing the death sentence on Kasab because
keeping him alive under a life sentence would be an invitation for a
Kandahar-type hijacking (when an Indian Airlines flight was hijacked
by some militants and the drama ended only after India released three
jailed militants). Ramachandran told the Supreme Court that this
reasoning of the trial court was as erroneous as the one that
suggested that the death penalty should not be imposed because it
would give a fillip to martyrdom.

The Ministry of Home Affairs, on October 23, recommended to President
Pranab Mukherjee that Kasab's mercy petition be dismissed. The
Ministry appears to have taken the decision soon after receiving a
report from the Maharashtra government making a similar plea.

Sources in the Ministry indicated that it gave priority to
recommending the dismissal of Kasab's mercy petition even while mercy
petitions filed by other convicts were pending with it as well as the
President because the judicial verdicts had brought out overwhelming
evidence against Kasab. Besides, the Ministry appears to have felt
that there was no special circumstances making Kasab deserve clemency.

All these reasons would make one wonder whether the state considers
itself an agent of retribution while exercising the noble power under
Article 72 of the Constitution to commute a death sentence. As Usha
Ramanathan, legal commentator and a campaigner against the death
sentence, says, the state should use Article 72 to break the cycle of
retribution rather than continue it.



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Saurav Datta

Twitter: SauravDatta29
Mobile : +91-9930966518

"To those who believe in resistance, who live between hope and
impatience and have learned the perils of being unreasonable. To those
who understand enough to be afraid and yet retain their fury."

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