PUCL statement on execution of Afzal Guru #deathpenalty



PEOPLE’S UNION FOR CIVIL LIBERTIES

 

270-A, Patpar Ganj, Opposite Anand Lok Apartments (Gate No. 2), Mayur Vihar-I, Delhi 110 091

Phone: (011) 2275 0014                 PP FAX: (011) 4215 1459

 

Founder: Jayaprakash Narayan; Founding President: V M Tarkunde

PresidentPrabhakar Sinha (Bihar); General SecretaryV Suresh (TN & Puducherry); Treasurer: Ritu Priya, Delhi.
Vice-Presidents: (all names in alphabetic order) Binayak Sen (Chhattisgarh); P. B. D’Sa (Karnataka); Ravi Kiran Jain (U.P.); Sanjay Parikh (Delhi). Secretaries:Chitaranjan Singh (U.P.); Kavita Srivastava (Ms) (Rajasthan); Mahi Pal Singh (Delhi)

 E.mails: <puclnat@gmail.com> & <puclnat@yahoo.com>       Please visit PUCL website at <www.pucl.org>

 D: \Emta                                                                                                                                            Please always use Pin Code

 

PUCL Statement on the Hanging of Afzal Guru

N. Delhi, 09.02.2013

 

The PUCL condemns the hanging of Afzal Guru in Tihar Jail early in the morning (9.2.2013) today.

 

The tearing hurry with  which Afzal Guru was hanged, accompanied by the flouting of all established norms by not giving his family their legal right to meet him before taking him to the gallows, clearly indicates that there were political considerations behind taking this step. More shameful is the explanation of the Home department that the wife and family of Afzal Guru were intimated of the hanging by a mail sent by Speed Post and Registered Post. Decency and humanity demanded that the Union Government give prior intimation to the family and an opportunity to meet him. Such a surreptitious action of the government also deprives the family of Afzal Guru to right to seek legal remedy.

 

PUCL also condemns the repressive stand of the Delhi police in not allowing a group of people who were protesting against the hanging and detaining them in police stations. We are equally concerned by reports that right-wing goons were permitted by the police to use violence against the protestors. PUCL asserts the right of citizens to dissent and express their opposition to capital punishment in a peaceful manner.

 

PUCL reiterates its demand for the abolition of the death penalty. PUCL is of the view that India must not retain in its statute book something so abhorrent to human rights as the death penalty. More especially, when more than one hundred and fifty countries have banned or put a moratorium on it.  PUCL feels that as the land of Buddha and Gandhi, death penalty has no place.

 

PUCL feels that starting with Kasab, now with Afzal Guru, the country is going to witness a spate of executions. We give a call to the nation to break this spiral of executions.

 

 

Prabhakar Sinha (President)                 V Suresh (General Secretary)

 

Amnesty asks India to abolish #deathpenalty, put moratorium on executions


13 December, 2012 | 13:13

Amnesty asks India to abolish death sentence

Amnesty asks India to abolish death sentence

Amnesty International has asked India to abolish death sentence and put immediate moratorium on execution.

New Delhi, Dec 13/Nationalturk -The international human rights watchdog, Amnesty International has written to Indian President Pranab Mukheree and sought abolishing of death sentence and immediate moratorium on executions.

In the letter, Chief Executive Amnesty International G Ananthapadmanabhan  referred to the recent execution of Ajmal  Kasab, Pakistani gunman, who was caught alive during 2008 Mumbai attacks.

Kasab was executed by Indian authorities in a jail in Pune in Indian city ofMumbaion November 21 year

“Kasab had committed grave and serious offences, and Amnesty had consistently expressed its sympathies and condolence to the victims of his actions and their families. However, by executing him, the Indian state has violated the internationally recognized right to life and has signalled a step away from the regional and global trends towards abolition of the death penalty,” Ananthapadmanabhan said  .

As of today, 140 countries in the world have abolished death penalty in law or practice. Most recently,Mongoliabecame the 140th country to join this group by becoming a state party to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, on 13 March 2012. In the Asia-Pacific region, 17 countries have abolished the death penalty for all crimes, 10 are abolitionist in practice and one –Fiji– uses the death penalty only for exceptional military crimes.

“Amnesty is concerned about the manner in which Indian authorities carried out Ajmal Kasab’s execution on November 21,” Ananthapadmanabhan said.

He said according to reports, Ajmal Kasab himself was only informed of this rejection on 12 November. “It is unclear whether he was aware of the possibility of seeking a review of your decision. Information about the rejection of the petition for mercy and the date of execution was not made available to the public until after the execution had been carried out. Authorities inIndiahave made public claims that this lack of public announcement and secrecy surrounding the execution were to avoid intervention by human rights activists.”

He said this practice is in contrast to how previous executions have been carried out inIndiaover the past 15 years. “Information regarding the executions of Dhananjoy Chatterjee (2004), and Shankar (1995), for example, was accessible to the public in advance of the execution.”

“Transparency on the use of the death penalty is among the fundamental safeguards of due process that prevent the arbitrary deprivation of life. Making information public with regard to legislation providing for the death penalty as well as its implementation allows for an assessment of whether fair trial and other international standards are being respected. In resolution 2005/59, adopted on 20 April 2005, the UN Commission on Human Rights called upon all states that still maintain the death penalty “to make available to the public information with regard to the imposition of the death penalty and to any scheduled execution,” Ananthapadmanabhan.

He said Amnesty International finds it disappointing that theIndianStatehas chosen to carry out Ajmal Kasab’s execution in this manner, especially as secrecy was not the practice in execution in the country.

Amnesty concerned about nine petitions

Ananthapadmanabhan said Amnesty International is concerned about nine petitions for mercy involving 14 individuals that have been sent to the Ministry of Home Affairs for consideration for a second time, which we understand is usual practice when there is a new minister in office.

On 10 December 2012, Indian Minister of Home Affairs told reporters that he will review the petitions before him after the end of the winter session of Parliament. One of these petitions concerns Mohammad Afzal Guru who was sentenced to death for his alleged involvement in the 2001 Parliament attack.  Mohammad Afzal Guru was tried by a special court under the Prevention of Terrorism Act.

“Amnesty International has found that these trials did not conform withIndia’s obligations under international human rights law. Amnesty opposes death penalty in all cases without exception, regardless of the nature or circumstances of the crime; guilt, innocence or other characteristics of the individual; or the method used by the state to carry out the execution. It opposes it as a violation of the right to life as recognized in the Universal Declaration of Human Rights and the ultimate cruel, inhuman and degrading punishment,” Ananthapadmanabhan said.

Abolition of death penalty recognized in international law and standards

He said the desirability of the abolition of the death penalty has long been recognized in international law and standards. The International Covenant on Civil and Political Rights (ICCPR), to whichIndiais a State Party and which allows for the use of the death penalty under certain circumstances, clearly states in Article 6.6 that no provision in Article 6 should be invoked “to delay or to prevent the abolition of capital punishment.”

Use of death penalty in India riddled with systematic flaws

“The use of the death penalty inIndiais riddled with systemic flaws. Of particular concern are: the broad definition of “terrorist acts” for which the death penalty can be imposed; insufficient safeguards on arrest; obstacles to confidential communication with counsel; insufficient independence of special courts from executive power; insufficient safeguards for the presumption of innocence; provisions for discretionary closed trials; sweeping provisions to keep secret the identity of witnesses; and limits on the right to review by a higher tribunal,” he said.

He urged Indian government to commute all death sentences to terms of imprisonment and halt plans to carry out further executions, and establish an official moratorium on executions as the first step to abolishing the death penalty.

“Wherever mercy petitions have been rejected, respect the practice of promptly informing the individual, his/ her lawyers, his/ her family, of the decision, reasons for the decision, and proposed date of execution, as well as the public, of any scheduled execution,” added Amnesty chief executive.

Write your comments and thoughts below

Faiz Ahmad / NationalTurk India News

 

 

The Death Lottery- case against #deathpenalty


The Death Lottery

The case against capital punishment
BY Jatin Gandhi , Open Magazine
The Supreme Court admitted on three different occasions, between 2009 and 2011, that it had erred in applying the ‘rarest of the rare’ doctrine laid down by its five-judge bench in 1980

The Supreme Court admitted on three different occasions, between 2009 and 2011, that it had erred in applying the ‘rarest of the rare’ doctrine laid down by its five-judge bench in 1980

I can recall the punishment of detention. I can make reparation to the man upon whom I inflict corporal punishment. But once a man is killed, the punishment is beyond recall or reparation. God alone can take life, because He alone gives it’

MK Gandhi in Young India, October 1925

+++

Long before Mohammed Ajmal Kasab went to the gallows four years after his slaughter of scores of people in Mumbai, a villager from Banswara in Rajasthan named Ram Chander alias Ravji was hanged after an even faster trial. It was on 4 May 1996. He had been charged with the murder of his pregnant wife and three children on the night of 6 May 1993. In a fit of anger, not only did he hack his family to death, he also attacked his mother. A lower court sentenced him to death, the state’s high court upheld his sentence, the Supreme Court endorsed it, and the President of India at the time, Shankar Dayal Sharma, dismissed his mercy petition in less than a week (on 19 March 1996).

Ravji’s case could have gone down in history as a case that achieved closure in record time. Yet, it finds place in the history of Indian jurisprudence for an altogether different reason: for miscarriage of justice, in the opinion of a higher bench of the Supreme Court. The court had, in handing out its death sentence to Ravji, deviated from the guiding principles of capital punishment laid down by a Constitution bench in 1980.

What makes matters worse is that between 1996 and 2009, there were other cases in which the Ravji case was cited as a precedent for awarding death sentences. As a result, by 2009, when the Supreme Court admitted an error of judgment in that case, 13 people so sentenced were awaiting execution, and two had already been put to death: Surja Ram in 1997, and of course, Ravji himself the previous year. Despite the apex court’s admission of an error so profoundly grave, the other death sentences have not been overturned.

+++

Kasab’s execution may have attracted popular attention to a debate on the death penalty in India, but within legal circles, the debate had never died. In July, well before Kasab was secretly executed in Pune’s Yerawada Jail on the morning of 21 November, 14 eminent jurists, including former judges and chief justices, wrote to the President of India urging him to use his powers under Article 72 (to grant pardons, commute sentences, etcetera) of the Constitution to prevent miscarriage of justice in several capital punishment cases. These letters of appeal, similar in nature and content, were prompted by the apex court’s admission—on three different occasions between 2009 and 2011—that it had erred in applying the ‘rarest of the rare’ doctrine laid down by a five-judge bench of the Supreme Court in 1980.

Drawing President Pranab Mukherjee’s attention to the issue, the jurists asked for the sentences of the above mentioned 13 placed on death row between 1996 and 2009 to be commuted. ‘None of these cases involve crimes against the State. Further, the concerns raised in this statement have nothing to do with the larger debate about the desirability of retaining [the] death penalty. Rather, they pertain to the administration of the death penalty in a conscientious, fair and just manner,’ wrote retired Delhi High Court Chief Justice AP Shah, ‘Executions of persons wrongly sentenced to death will severely undermine the credibility of the criminal justice system. This matter goes to the very heart of our Constitution because it involves the taking of lives by the state on the basis of judgments admitted to be erroneous by the Supreme Court.’

“The Supreme Court could have reopened those cases in an exercise of its discretionary power under Article 142 of the Constitution and taken corrective measures to deliver complete justice to the prisoners,” says Justice Shah, whose views on the matter are in consonance with other letter writers, among them Justices PB Sawant, BA Khan, Bilal Nazki, PK Misra, SN Bhargava, BH Marlapalle, Prabha Sridevan, BG Kolse-Patil, Hosbet Suresh, KP Sivasubramaniam, PC Jain, Ranvir Sahai Verma and Panachand Jain.

In order to understand the error that the retired judges refer to, one needs go back to 1980. The Supreme Court addressed the issue of the constitutionality of the death penalty for the first time in 1973, in theJagmohan Singh vs State of UP case. The Court ruled that the death penalty was constitutionally permissible if imposed after a fair trial in accordance with a ‘procedure established by law.’ In 1973, India’s Parliament enacted the Criminal Procedure Code (CrPC), laying down that in any judgment awarding a death sentence, the court must state specific reasons for choosing that penalty so as to limit its use to special circumstances. This reversed the earlier practice and capital punishment became the exception instead of the norm, as it was under the CrPC enacted by the British.

It was seven years later, in 1980, while adjudicating on the matter in the case of Bachan Singh vs Punjab, that the five-member constitution bench laid down its set of guiding principles on the death penalty: mainly, that it be applied only in ‘rarest of the rare cases’, but also that sufficient weightage be given to mitigating circumstances (pertaining to the criminal) along with aggravating circumstances (relating to the crime). Bachan Singh, who had been charged with the murder of three people after he had already served a life term in another case, had been sentenced to death this time round by a lower court.

In the Ravji case, however, while confirming the death sentence, a bench of two judges of the Supreme Court explicitly held, ‘It is the nature and gravity of the crime, but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial.’ In doing so, the court held that the circumstances relating to thecriminal are irrelevant and focused exclusively on the circumstances relating to the crime. This aspect of the decision in the Ravji case was in direct conflict with the Bachan Singh ruling that had come from a higher bench. However, on several occasions, the Supreme Court has invoked the Ravji precedent while awarding a death sentence. It was only in 2009, while hearing Santosh Kumar Bariyar vs State of Maharashtra, that the court noticed the conflict between Ravji andBachan Singh.

The court observed: ‘The rarest of rare dictum serves as a guideline in enforcing Section 354(3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the court, in case it selects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum. The background analysis leading to the conclusion that the case belongs to the rarest of rare category must conform to [the] highest standards of judicial rigour and thoroughness as the norm under analysis is an exceptionally narrow exception.’ It was while ruling on this matter that the court admitted the error: ‘We are not oblivious that the Ravjicase has been followed in at least six decisions of this Court in which death punishment has been awarded in [the] last nine years, but, in our opinion, it was rendered per incuriam (ignored the statute of law).’

The SC noted six other cases where Ravji was followed and held that these decisions were also wrongly decided: ‘Shivaji vs State of Maharashtra, Mohan Anna Chavan vs State of Maharashtra, Bantu vs State of UP, Surja Ram vs State of Rajasthan, Dayanidhi Bisoi vs State of Orissa and State of UP vs Sattan are decisions where Ravji has been followed. It does not appear that this Court has considered any mitigating circumstance or a circumstance relating to [the] criminal at the sentencing phase in most of these cases. It is apparent that Ravjihas not only been considered but also relied upon as an authority on the point that in heinous crimes, circumstances relating to [the] criminal are not pertinent.’

Following Bariyar’s case in 2009, two other judgments of the court (Dilip Tiwari vs State of Maharashtra and Rajesh Kumar vs State) from 2010 and 2011 referred to that deviation from the principles laid down in 1980.

+++

The matter does not end with the miscarriage of justice in those seven cases alone. In cases where capital punishment is awarded, choosing what is ‘rarest of the rare’ imposes a moral burden on the court because of its subjectivity. “There is bound to be inconsistency in applying the dictum,” says Justice AP Shah, “The inconsistency is inherent because the application is subjective. The SC’s attempt to regulate capital punishment has been unsuccessful on its own terms.”

Delivering the Naroda Patiya judgment, the special judge acknowledged that former Gujarat minister Maya Kodnani was guilty of leading a mob against a group of people of her constituency who she was supposed to protect. In all, 97 persons were killed. It can be argued that Kodnani was a sustained threat to society and the victims of the massacre were both innocent and helpless. Yet, the court chose to sentence her to prison for life. In a more recent case, a Hoshiarpur sessions court sentenced 35-year-old Jasvir Singh to death on 18 September on charges of killing his children and trying to kill his wife by setting his house on fire. The alleged crime was committed on 27 January this year, the case reached the sessions court on 30 July, and the death sentence was delivered after six hearings. The court relied on the sole witness, the man’s wife, in deciding the case and held that it fell under the category of ‘rarest of the rare’. The court’s order reads: ‘The convict being 35 years of age could well pre-conceive or understand the consequences of his misdeed. The convict being of such age in no manner could be described to be immature or that he could not distinguish between wrong or right before the moment. So in the considered opinion of the court it is a rarest of rare case. If [a] sentence lesser than capital punishment or death sentence is awarded, after serving out the same, he will come out of prison and may again turn to be a menace to society and he will remain a continuing threat to society. The attack by him was cold blooded and hence calls for deterrent punishment for this morality reprehensible or abominable crime. So it being a rarest of rare case only, death sentence will meets the ends of justice as it will also be an eye opener to others not to indulge in akin activities. I, therefore, sentence Jasvir Singh convict to Death for offence under Section 302 of Indian Penal Code and direct that he be HANGED BY THE NECK TILL HE IS DEAD.’

Singh’s lawyer Anil Walia says he will appeal against the verdict. “The court overlooked the fact that the accused himself had suffered 20 per cent burns in the fire and that his wife, with whom he had strained relations, was the only eyewitness. It is her version that has been solely relied upon.”

More recently, on 22 November, the Delhi High Court admonished the Delhi Police for shoddy investigation in the Lajpat Nagar blast case of 1996, while acquitting two accused who had been awarded death sentences by a lower court. The acquittal came after the two had already spent 13 years in jail. The two-judge bench pulled up the police for its ‘casualness and slipshod approach’ in investigating the case. (See accompanying story, ‘Geelani’s Litany’)

“The use of the death penalty in India is riddled with fatal flaws,” says Shailesh Rai, senior researcher at Amnesty International India, “Research conducted by Amnesty and the People’s Union for Civil Liberties has found evidence in Supreme Court judgments of abuse of law and procedure and of arbitrariness and inconsistency in the investigation, trial, sentencing and appeal stages in death penalty cases.”

And it is not just rights vigil groups that have found arbitrary conduct in these matters. In a judgment as recent as last week (Sangeet vs Haryana), the SC has gone even further to admit that sentencing had become a ‘judge-centric exercise’. The court observed: ‘It appears to us that even though Bachan Singh intended ‘principled sentencing’, sentencing has now really become judge-centric as highlighted inSwamy Shraddananda and Bariyar. This aspect of the sentencing policy in Phase II as introduced by the Constitution Bench in Bachan Singh seems to have been lost in transition…. Given these conclusions, we are of the opinion that in cases such as the present, there is considerable uncertainty on the punishment to be awarded in capital offences—whether it should be life imprisonment or death sentence. In our opinion, due to this uncertainty, awarding a sentence of life imprisonment in cases such as the present is not unquestionably foreclosed.’

+++

The government of India appears to be in no mood to do away with the death penalty anytime soon. Though a majority of countries in the world have abolished capital punishment, India is among the 39 that recently opposed a United Nations resolution to that effect. Many argue that Indian society is not yet ready for doing away with hanging.

From a victim’s perspective, awarding death to the perpetrator of a heinous crime might seem just. But the Indian justice system is designed in principle to be reformative and not retributive. In practice, though, it lies somewhere in the middle. There is also the argument that, acting in criminal matters, the State represents the conscience of society as a whole. In the opinion of Former Solicitor General Gopal Subramaniam, “Death penalty in India is still a relevant punishment for the reason that there are certain kinds of crime which are so extreme and that are so abhorrent to the judicial conscience of civil society that death alone would be the just punishment.” However, he cautions that such a sentence must be awarded only if “no other punishment can be awarded”.

Yet, inordinate delays in executing those who are already on death row leads to a kind of double jeopardy, their trauma worsened by an almost unbearable uncertainty, which itself is an argument against capital punishment. The last man to be executed in India before Kasab was Dhananjay Chatterjee, a security guard accused of rape and murder, who was hanged in 2004. He spent 13 years in prison before he was hanged.

Earlier this year, three separate but similar cases were filed by death row convicts. In the cases of Mahendra Nath Das, Devinder Pal Singh Bhullar and Rajiv Gandhi’s assassins, their mercy petitions were pending with the President for more than a decade each. After the rejection of their pleas, the accused petitioned the SC for justice on account of an ‘unexplained delay’.

There is also the case of Sonia Punia. In February 2009, five years after she was sentenced to death on charges of having murdered eight members of her family, Punia wrote to the President to dismiss her mercy petition and execute her. ‘I don’t have any means to live and want to die once rather than dying with each passing minute,’ she wrote. Nearly four years later, she awaits death in Ambala Jail. But in cases like Ravji, where the court has admitted its error, it is too late to revoke the sentence.

+++

With additional reporting from Parminder Singh Bariana in Hoshiarpur

#India-Voices rise against death row


Harsh Mander, Deccan Herald , Dec 2, 2012

As the world moves towards abolition of capital punishment or a moratorium on its use, India remains unmoved

Under the shroud of extraordinary secrecy, on the morning of November 21, 2012, a young man called Ajmal Kasab was hung in Yerwada Jail, shortly after his mercy petition was rejected by the President of India.

Kasab was the only surviving gunman from among those who killed 166 people in Mumbai in an audacious and bloody terrorist shootout four years earlier.

His trial was fair, his conviction just, his crime merciless and horrendous, therefore many celebrated his hanging as fitting closure to a people traumatised by his offence.

But I was among those who believed that his hasty execution was an exercise in collective revenge unworthy of a humane people, and would have greatly preferred instead the application of public compassion. As lawyer and campaigner Yug Mohit Chaudhary observed, “If we have to become a more humane and compassionate society, and leave a better… world behind for our children, we have to curb our instinct for bloody retribution.”

He adds: “Mercy tempers justice, makes it less exacting, more humane.”
Kasab’s judicial killing and the imminent possibility of several other hangings have revived with urgency the debates around the death penalty in India. This discussion involves many vital questions of public ethics and judicial fairness.

Amnesty International reports that in 1945, when the United Nations was constituted, only eight member-states had abolished the death penalty for all crimes. Today the number of countries which no longer award the death penalty to people convicted of even the gravest crimes has risen to 141.

India now stands in a minority of nation states in which the death penalty still survives in its statute books, although the Supreme Court of India mandates that it must be applied in only ‘the rarest of the rare’ cases.

Proponents of the death penalty often suggest that it is essential as a deterrent to heinous crime: if potential killers, hate criminals, child abusers, drug peddlers and serial rapists are assured that even if caught and convicted, they may be jailed for life but never executed, they will be emboldened to commit these dark crimes with greater impunity.

Fallibility of justice

However, the overwhelming evidence globally from all countries which abolished the death penalty is that ending death penalty has nowhere resulted in increased crime.

Even in India, the numbers of persons executed has come down substantially from around one almost every second day around Independence to one after several years today. Again, there is little evidence of enhanced crime in India resulting from this steeply declining application of the death penalty.

On the other hand, the arguments against the death penalty are both judicial and ethical. Foremost among judicial arguments is the recognition of the fallibility of public justice. Laws and evidence are interpreted by human beings – judges and senior executive functionaries such as heads of state – and they are subject like anyone else to human failings of error and prejudice.

Law scholar Usha Ramanathan documents globally many ‘narratives of fallibility’, of people convicted of grave crimes who are later proved to be innocent. She finds that even people who confess to crimes may turn out ultimately to be innocent, because confessions may be made under duress, after physical torture, in exhaustion or without adequate knowledge of the law.

These dangers are further greatly magnified for persons tried under extraordinary laws such as anti-terror statutes, which compromise the standards of proof required for conviction.

She concludes that “the Indian experience is replete with these problems – eyewitness misidentification, flawed forensics, police and prosecutorial pursuing of conviction and not justice, false witnesses, dearth of defence lawyers for the indigent, false confessions and miscarriage of justice. The breakdown of the criminal justice system is common knowledge, yet wrongful convictions have not deterred us” from pressing ahead with capital punishment.

The core issue is that if no judicial system in the world has been able to eliminate the chances of wrongful conviction, how can we morally justify taking away the life of a person who may actually turn out eventually to be innocent?  It is unconscionably reckless to risk executing a person who may indeed not be guilty of the crime with which he is charged.

The inherent subjectivity and ad-hocism of judicial interpretation renders the fate of a person convicted of grave transgressions to what Chaudhary aptly describes as a ‘lottery’.

The principle that the death penalty should apply only to the rarest of the rare cases applies equally to all judges, and all judges are informed that these highly exceptional cases are only those in which the convicted person is found to represent an exceptional threat to society, and is considered beyond repair and redemption. But what actually determines the difference between life and death for a convict is not so much his crime as the chance of which bench his case happens to be allotted to.

There are some judges who are known to be ‘convicting judges’, others who are far more restrained. Chaudhary finds that there were four times greater chances of being awarded the death penalty if the convict appeared before one bench of the Supreme Court instead of another. This subjects convicted persons to a roulette of life and death, which is entirely untenable morally.

What is even more worrying about judicial subjectivity is that it is not random or chance, but deeply embedded in class, gender, caste, racial and communal prejudices.

As far back as 1979, Justice Krishna Iyer observed that ‘capital sentence perhaps has a class bias and colour bar’, as the death penalty was ‘reserved’ for crimes committed by the poor. Justice Bhagvati concurred in 1982, that the death penalty is discriminatory and “has a certain class bias inasmuch as it is largely the poor and downtrodden who are victims of this extreme penalty”. Chaudhary concludes that “poverty is as significant a factor in the death sentence as the nature of the crime or the quality of evidence”.

I feel even more worried when the Supreme Court declares in a particular matter of a political crime of terror that the death sentence must be applied to ‘satisfy the collective conscience’ of the nation; or the clearly political motivations in the haste with which Kasab was executed.

And finally, even beyond the vagaries of the criminal justice system and the politics of hanging political criminals, I am compelled most by fundamental ethical claims against the death penalty. We must morally grapple with what Justice Krishna Iyer describes as the sacredness of life, the ever-present possibility of redemption of the worst type of criminal, and the barbarity of the death penalty. I feel convinced that every human being must be given a chance to redeem himself. And every human being, even the most unrepentant criminal who wrongs us most grievously, still is worthy of our compassion.

(The author is a writer and human rights worker.)


The death penalty is an ineffective, cruel, and simplistic response to the serious and complex problem of violent crime. It institutionalises discrimination against the poor and oppressed, diverts attention and financial resources from preventive measures that would actually increase public safety, risks the execution of innocent people, and does not deter crime. 

Capital account

Auto SHANKAR
Serial killer

Hanged at Salem
Central Prison on April 27, 1995

Dhananjoy
CHATTERJEE
Murderer
Hanged at Alipore
Central Jail, Kolkata on August 14, 2004

Mohammed Ajmal Amir Kasab
Terrorist
Hanged at Yerwada Jail, Pune on
November 21, 2012

 

Done to Death -Politics of punishment #deathpenalty


Manoj Mitta | November  2012, Times Crest

 

 

zoom

The higher the penalty, the greater the rigor that the courts are expected to display in arriving at the decision. It is however hard to apply this principle, ironically enough, to the highest possible penalty: namely, death. This has been admitted by the highest court of the land over and over again, the last time being literally on the eve of Ajmal Kasab‘s hanging. In a verdict delivered on November 20, Justice Madan Lokur said that in capital offences “it has become judge-centric sentencing rather than principled sentencing”.

But then, can this be said even about the decision to hang Kasab? If there was ever an open-and-shut case of capital crime, it was of course that of the only attacker to have survived the 26/11 massacre. So, whoever the judges were at the three levels of courts that had handled his case, it was most unlikely that any of them would have spared him the noose. It takes a crime of the magnitude of 26/11 to carve an exception to Justice Lokur’s formulation that the recourse to the death penalty depended on the judge rather than any principle. There was still an element of uncertainty about the punishment awarded to Kasab. And that was whether he would be executed at all and, if so, when.

This uncertainty was demonstrated in Kasab’s case by the utter secrecy and suddenness with which he was transferred to Pune and hanged there, early in the morning on November 21. It came as a complete surprise because even the President’s rejection of Kasab’s mercy petition had been kept under wraps for over a fortnight. A lot of high-level political decisions were involved in Kasab’s execution, beginning with the home ministry’s recommendation to the President to reject his mercy petition to taking a call on where he should be hanged to whether the hanging should take place so soon after Bal Thackeray‘s death.

Thus, whether it is about its pronouncement or about its execution, the decisions on death penalty are based more on politics than on law. Consider the manner in which the Kasab hanging triggered off a debate between the ruling and opposition parties on the longpending mercy petition of Afzal Guru, who had been sentenced to death in the Parliament attack case of 2001. Amid reports of the home ministry having recommended Guru’s hanging as well, it is uncertain as to where exactly the file is pending as of today. Unlike Kasab, Guru was not among the actual attackers. If Guru’s fate is still sought to be linked with Kasab’s hanging, at least in the public discourse, it is yet another indication of politics being a predominant factor.

There is a wide range of ways in which the subjectivity of politics has shown its edge over the objectivity of law in the context of death penalty: None of the major political parties has taken cognizance of the Supreme Court’s admitted inability to evolve a uniform standard for determining the “rarest of rare cases” in which the death penalty can be imposed. In recent years, the Supreme Court has repeatedly admitted the incongruity of weighing aggravating and mitigating circumstances to determine whether a convict fell in the rarest of rare cases. Since aggravating circumstances relate to the crime and mitigating circumstances relate to the criminal, the apex court’s latest verdict said: “The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review. “

This was as close as the judiciary could have come to admitting to the arbitrariness inherent in most cases of death penalty. The horrendous implication is that death penalty is being imposed on standards that are not entirely justifiable or uniform. Yet, none of the political leaders participating in the death penalty debate has deemed it fit to call for a review of the very policy of retaining that irrevocable punishment in the statute book. The political silence on the churning within the judiciary on the efficacy of the death penalty testifies to the larger social indifference to this human rights issue.

Though Kasab’s hanging is just the second in over a decade, India has never adopted a moratorium on the death penalty despite a global trend. NGO, When Dhananjoy Chatterjee was hanged in 2004, it was after a lapse of six years. Kasab’s execution came after a lapse of eight years. The executions are so rare although courts, bound as they are by the law, have been every now and then awarding death sentences. The fault-line between the pronouncement of death sentence and its actual execution testifies to the increasing discomfort within the system. The very low frequency of executions was widely perceived as a tacit moratorium on death penalty. In fact, while responding to Kasab’s execution, Human Rights Watch, a global NGO, lamented the lifting of the moratorium in India. This was despite the fact that India, defying a global trend, has consistently refused to support UN resolutions calling for a moratorium on death penalty. The last such instance was virtually on the eve of Kasab’s hanging.

Kasab’s mercy petition was disposed of ahead of those like Guru who have been awaiting the President’s decision for far longer periods. Politics is writ large on the decision to give precedence to Kasab’s mercy plea over that of Guru’s. For, being a Pakistani national, and given the gravity and incontrovertible nature of his crime, there was little domestic support for Kasab. Afzal Guru on the other hand is seen by sections of Kashmiris as a symbol of India’s alleged excesses in their state. This is particularly because of Guru’s claim that he had a long record of being victimized by security forces in Kashmir and that it was at their instance that he had got mixed up with the conspiracy to attack Parliament. Whatever the intrinsic merits of the two cases, the extraneous factors made it easier for the government to take up Guru’s case ahead of Kasab’s.
Kasab was denied his right to challenge the President’s decision although the execution of other high profile convicts has been stayed by courts even after their mercy petitions had been rejected. Ever since this right has been laid down by the Supreme Court in Kehar Singh’s case in 1988, there have been several instances of death row convicts obtaining stay orders on their execution on various grounds even after the President had rejected their mercy petitions. The three Rajiv Gandhi killers, for instance, obtained a stay last year from the Madras high court on the ground that the President had decided their mercy petitions after an inordinate delay. The hush-hush manner in which Kasab was executed within days of the President’s decision betrayed a political resolve to avoid the risk of a judicial stay on his execution. The political calculation clearly was that the government had everything to gain and nothing to lose by executing Kasab.
Balwant Singh Rajoana’s execution has been stayed by the government although he never appealed against the death sentence or sought pardon. The killer of former Punjab chief minister Beant Singh is a rare death row convict displaying courage of convict. His principled refusal to ask for mercy forced the Centre to stay the execution on its own to avoid political trouble in Punjab.
No policy debate so far on replacing hanging with more humane forms of execution such as lethal injection. Although the Law Commission about a decade ago recommended the lethal injection as an alternative, the government has so far shown little inclination to make any reform on the death penalty front. Hanging is part of popular consciousness in India and there is no political will to replace that form of punishment, however barbaric.

 

A 26/11 victim who refuses to celebrate Kasab’s execution


NOVEMBER 22, 2012

While the media has reported most families of those who died in 26/11 as hailing the execution of Ajmal Kasab, Bollywood actor Ashish Chowdhry refuses to be one of them. His sister Monica and her husband were amongst those who were killed at the Oberoi trident hotel. Given below are screenshots of Chowdhary’s tweets. Read from the last tweet upwards.

 

Abolition of Death Penalty – A Time for National Reflection: PUCL


November 23, 2012
by 

This release was put out yesterday by the PEOPLE’S UNION FOR CIVIL LIBERTIES

The secretive and stealthy hanging of Ajmal Kasab in Pune’s Yerwada Prison yesterday, 21st November, 2012, brings to an end the legal process involved in trying Kasab for the brutal assault by trained terrorists from across the border on Mumbai, the commercial capital of India which left 166 persons dead.

The Mumbai carnage of November 2008, more popularly abbreviated to a single term `26/11,’ constitutes one of the most heinous and deliberate attempts in recent years to cause mass mayhem and terror in India. Kasab was the only member of the terrorist team sent from Pakistan apprehended alive; he was caught on film diabolically using his modern automatic weapon in a cold blooded fashion, killing numerous people. The hanging, and the trial and legal proceedings which preceded it,  admittedly  complied with existing laws which permit death penalty, and cannot be faulted as such.  While it may be argued, as many do  that the hanging will help in an `emotional closure’ to the families of victims of 26/11, there are others who point out that other key issues still remain to be addressed.  Families of victims in specific, as also other concerned citizens, have pointed out that Kasab was only a foot soldier and not the mastermind, who still remain at large.

We cannot also lose sight of the fact the  reality that the backdrop of the 26/11 incidents is also the festering and unresolved internal conflict inside Kashmir, which provides an easy emotive tool for demagogues to indoctrinate and turn youth to become cold blooded `jihadi’ killers. To them, the execution will not be a deterrence.

The extensive legal process  ending with the hanging of Kasab is pointed out as a triumph of the of `rule of law process’ in India. In the same breath this is also contrasted to the lack of such situation in neighbouring Pakistan.  This discourse is however very worrisome; it borders on `triumphalism’ on the one hand, and on the other, it amounts to an attempt to `avenge’ or seek `vengeance’, and `eye for an eye and tooth for a tooth’ mentality, which worldview has been rejected as dangerous amongst a majority of 110 countries worldwide which have prohibited death penalty in their countries.

Such triumphalist discourse is also worrying for it hides behind emotive terminology very harsh truths of failure and miscarriage of justice in other incidents of mass killings that have occurred in India. The `cry for justice’ still remains a silent pouring of helpless anger in the hearts and souls of thousands of families of victims  in incidents like planned and cold blooded slaughter of over 3000 Sikhs during the anti-Sikh riots of 1984, the massacre of hundreds of Muslims in the wake of the Babri Masjid demolition in 1992-93 (which ironically occurred in Mumbai also), the 2002 post-Godhra anti-Muslim carnage in Gujarat which saw over 2,000 Muslims killed and thousands more rendered homeless and more recently in Kokrajhar in Assam. A stark reality is the cynical manipulation and subversion of police investigation by ruling political parties and the executive  to help masterminds and perpetrators escape the clutches of the law.

In the surcharged emotional atmosphere in the wake of Kasab’s hanging,  even raising questions about the usefulness of hanging Kasab is considered to be `traitorous’, unpatriotic and anti-national.  We in the PUCL nevertheless feel that this is a moment in our nation’s history when we need to pause and ponder, and reflect on the values that we, as a nation, should uphold, particularly relating to crime and punishment, justice and equity. We need to be conscious of the fact that a nation consumed by outrage and filled with a sense of retribution easily confuses “punishment and revenge, justice and vendetta”. We, as a nation, need to begin a dispassionate public debate on the death penalty without judgmental, indignant, righteous or moralist overtones.

PUCL has always taken a principled stand against the death sentence as being anti-thetical to the land of ahimsa and non-violence, as constituting an arbitrary, capricious and unreliable punishment and that at the end of the day, the type of sentence that will be awarded depends very much on many factors, apart from the case itself. PUCL and Amnesty International have published a major  study of the entire body of judgments of the Supreme Court of India on death penalty between 1950-2008 which unambiguously shows that there is so much arbitrariness in the application of `rarest of rare’ doctrine in death penalty cases that in the ultimate analysis, death sentence constitutes a `lethal lottery’.

It may not be out of context to highlight that just two days before Kasab was hanged, on 19th November, 2012, the Supreme Court of India pointed out to the fact that in practice, the application of `rarest of rare cases’ doctrine to award death penalty was seriously arbitrary warranting a rethink of the death penalty in India.

It is also well recognised now that there can never ever be a guarantee against legal mistakes and improper application of legal principles while awarding death sentences. Very importantly, the Supreme Court of India in the case of `Santosh Kr. Bariar v. State of Maharashtra’, (2009) has explicitly stated that 6 previous judgments of the Supreme Court between 1996 to 2009 in which death sentences were confirmed on 13 people, were found to be `per incuriam’ meaning thereby, were rendered in ignorance of law. The Supreme court held that the reasoning for confirming death sentences in theses cases conflicted with the 5 judge constitutional bench decision in Bachan Singh v. State of Punjab (1980), which upheld the constitutionality of the death sentence in India and laid down the guidelines to be followed before awarding death sentence by any court in India.

It should be pointed out that of the 13 convicts awarded death sentence based on this per incuriam reasoning, 2 persons, Ravji @ Ramchandra was hanged on 4.5.1996 and Surja Ram in 5.4.1997. The fate of the others is pending decision on their mercy petitions. In the meantime a group of 7 – 8 former High Court judges have written to the President of India pointing out to the legal infirmity in the award of death sentences to these convicts and seeking rectification of judicial mistake by commuting their death sentences to life imprisonment. A very troubling question remains: how do we render justice to men who were hanged based on a wrong application of the law?

It is for such reasons, amongst others, that PUCL has long argued that it is extremely unsafe and uncivilised to retain death penalty in our statutes.

It will be useful to refer to the stand on death penalty taken by 3 of India’s foremost leaders of the independence struggle.

 

Mahatma Gandhi said,

 

“I do regard death sentence as contrary to ahimsa. Only he takes it who gives it. All punishment is repugnant to ahimsa. Under a State governed according to the principles of ahimsa, therefore, a murderer would be sent to a penitentiary and there be given a chance of reforming himself. All crime is a form of disease and should be treated as such”.

 

Speaking before the Constituent Assembly of India on 3rd June, 1949, the architect of India’s constitution, Dr. Ambedkar, pointed out,

 

“… I would much rather support the abolition of death sentence itself. That I think is the proper course to follow, so that it will end this controversy. After all this country by and large believes in the principles of non-violence, It has been its ancient tradition, and although people may not be following in actual practice, they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as dar as they possibly can and I think that having regard to this fact, the proper thing for this county to do is to abolish the death sentence altogether”.

 

Jayaprakash Narayan wrote more poignantly that,

 

“To my mind, it is ultimately a question for the respect for life and human approach to those who commit grievous hurt to others. Death sentence is no remedy for such crimes. A more humane and constructive remedy is to remove the culprit concerned from the normal milieu and treat him as a mental case … They may be kept in prison houses till they die a natural death. This may cast a heavier economic burden on society than hanging. But I have no doubt that a humane treatment even of a murderer will enhance man’s dignity and make society more humane”. (emphasis ours).

 

PUCL calls upon all Indians to use the present situation as a moment of national reflection, a period of serious dialogue and discussion on the values and ethics which we as a nation of Buddha and Ashoka, who epitomised humane governance, dharma and ahimsa, should accept and follow. The best tribute we can pay to the 166 persons who lost their lives due to the 26/11 Mumbai carnage is to rebuild the nation in a way that equity and justice, dharma and ahimsa prevails; in which there is no soil for discrimination and prejudice, and in which all Indians irrespective of caste, community, creed, gender or any other diversity, can live peacefully and with dignity.

 

We firmly believe that mercy and compassion are key values of a humane society, which are also recognised in the Indian Constitution. We also hold that abolishing death penalty is not a sign of weakness. Rather it is a stand which arises from a sense of moral authority. It is when law in tempered with mercy that true justice is done. Bereft of mercy our society would be impoverished and inhuman; mercy is quintessentially a human quality, not found elsewhere in the natural world. Excluding a fellow human being from the entitlement to mercy will make our society more blood thirsty, unforgiving and violent. We owe a duty to leave a better and less vengeful world for our children by curbing our instinct for retribution. That way we become a more humane and compassionate society. Recalling Rabindranath Tagore’s vision in the `Gitanjali’, let us re-make India into a `haven of peace’ in which future generations of Indians will rejoice and flourish.

Sd/-

Prof. Prabhakar Sinha, National President, PUCL
Dr. V. Suresh, National General Secretary (Elect), PUCL

 

 

” Aao Kasab Ko Phansi Dain ” -a poem by Anshu Malviya


उसे चौराहे पर फाँसी दें !
बल्कि उसे उस चौराहे पर फाँसी दें
जिस पर फ्लड लाईट लगाकर
विधर्मी औरतों से बलात्कार किया गया
गाजे-बाजे के साथ
कैमरे और करतबों के साथ
लोकतंत्र की जय बोलते हुए

उसे उस पेड़ की डाल पर फाँसी दें
जिस पर कुछ देर पहले खुदकुशी कर रहा था किसान
उसे पोखरन में फाँसी दें
और मरने से पहले उसके मुंह पर
एक मुट्ठी रेडियोएक्टिव धूल मल दें

उसे जादूगोड़ा में फाँसी दें
उसे अबूझमाड़ में फाँसी दें
उसे बाटला हाउस में फाँसी दें
उसे फाँसी दें………कश्मीर में
गुमशुदा नौजवानों की कब्रों पर

उसे एफ.सी.आई. के गोदाम में फाँसी दें
उसे कोयले की खदान में फाँसी दें.
आओ कसाब को फाँसी दें !!

उसे खैरलांजी में फाँसी दें
उसे मानेसर में फाँसी दें
उसे बाबरी मस्जिद के खंडहरों पर फाँसी दें
जिससे मजबूत हो हमारी धर्मनिरपेक्षता
कानून का राज कायम हो

उसे सरहद पर फाँसी दें
ताकि तर्पण मिल सके बंटवारे के भटकते प्रेत को

उसे खदेड़ते जाएँ माँ की कोख तक……और पूछें
जमीनों को चबाते, नस्लों को लीलते
अजीयत देने की कोठरी जैसे इन मुल्कों में
क्यों भटकता था बेटा तेरा
किस घाव का लहू चाटने ….
जाने किस ज़माने से बहतें हैं
बेकारी, बीमारी और बदनसीबी के घाव…..

सरहद की औलादों को ऐसे ही मरना होगा
चलो उसे रॉ और आई.एस.आई. के दफ्तरों पर फाँसी दें
आओ कसाब को फाँसी दें !!

यहाँ न्याय एक सामूहिक हिस्टीरिया है
आओ कसाब की फाँसी को राष्ट्रीय उत्सव बना दें

निकालें प्रभातफेरियां
शस्त्र-पूजा करें
युद्धोन्माद,
राष्ट्रोन्माद,
हर्षोन्माद
गर मिल जाए कोई पेप्सी-कोक जैसा प्रायोजक
तो राष्ट्रगान की प्रतियोगिताएं आयोजित करें
कंगलों को बाँटें भारतमाता की मूर्तियां
तैयारी करो कम्बख्तो ! फाँसी की तैयारी करो !

इस एक फाँसी से
कितने मसले होने हैं हल
निवेशकों में भरोसा जगना है
सेंसेक्स को उछलना है
ग्रोथ रेट को पहुँच जाना है दो अंको में

कितने काम बाकी हैं अभी
पंचवर्षीय योजना बनानी है
पढनी है विश्व बैंक की रपटें
करना है अमरीका के साथ संयुक्त युद्धाभ्यास
हथियारों का बजट बढ़ाना है…
आओ कसाब को फाँसी दें !

उसे गांधी की समाधि पर फाँसी दें
इस एक काम से मिट जायेंगे हमारे कितने गुनाह

हे राम ! हे राम ! हे राम !…”

–अंशु मालवीय 

India- Appeal to President Abolish Death Penalty


10th Novemeber 2012

Respected Mr. President,

We, the undersigned Indian citizens, urge the Government of India to grant mercy to Md. Ajmal Kasab and commute his death sentence to one of imprisonment for life. We believe that it is wrong and immoral to kill a human being by way of revenge or punishment.

Executing Kasab in the name of the Indian people will only feed a base blood lust that will make our society more blood-thirsty, vengeful and violent. It will not contribute to our safety or well-being in any way. On the other hand, keeping Kasab in jail and treating him like a human being allows for the possibility of him regaining his humanity, repenting his crime and atoning for the harm he has caused. That would indeed be a big victory in our battle against terrorism.

We, like many other Indians, strongly oppose the death penalty on political and ethical grounds, and want an end to state-sanctioned killings. These views should also be respected and considered. For this reason as well, we urge you to consider commuting the death sentences of Kasab and other prisoners on death-row.

We believe that all of us – the best and the worst – are in need of mercy, and it is only by showing mercy that, morally, we ourselves become entitled to receiving it. Bereft of mercy, our  society becomes impoverished and inhuman. If we have to become a more humane and compassionate society, and leave a better, and less blood-thirsty world behind for our children, we have to curb our instinct for bloody retribution and abandon the practice of killing those who have hurt us. In the land of Buddha, Mahavira, Gandhi and Ambedkar, let it not be said that there is no place left in our hearts for mercy or that the national conscience can only be satisfied by the killing of Kasab.

Sincerely

Vrinda Grover

Kalpana Mehta

Tultul Biswas

Bela Bhatia

Laxmi Murthy

Bondita Acharya

Pyoli Swatija

Indira Chakravarthi

Kalyani  Menon Sen (Feminist Learning Partnerships)

Kamayani Bali Mahabal

Jayawati Shrivastava

 

Deepti (Saheli, Delhi)

Sandhya Gokhale (Forum Against Oppression of Women)

Ranjana Padhi

 

#India #Deathpenalty-Gaps in Kasab case


 

V. VENKATESAN, Frontline, Volume 29 – Issue 22 :: Nov. 03-16, 2012

 

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.