Abolish Death Penalty India: Exclusive! Saving killer Ajmal Kasab

Tuesday, November 29, 2011

Exclusive! Saving killer Ajmal Kasab

Three years ago, Pakistani terrorist Mohammad Ajmal Amir Kasab and his accomplices created mayhem in Mumbai and killed 166 innocent people. The lone captured terrorist of the 26/11 attack has since been enjoying Indian ‘hospitality’ at Mumbai’s Arthur Road jail with the government spending Rs16 crore on the Lashkar-e-Taiba (LeT) militant.

The Supreme Court will hear some ‘interesting’ arguments in favour of Kasab who was awarded the death penalty on five counts. Earlier this year, Kasab filed an appeal in the Supreme Court challenging the death sentence awarded to him.

Noted lawyer Raju Ramachandran who will defend Kasab in the hearing scheduled to begin on January 29, 2012, refused to comment. “I am merely responding to the call of professional duty,” he said. Ramachandran’s junior Gaurav Aggarwal has filed an appeal in the Supreme Court (a copy of which is with DNA) in defence of Kasab.

On of the major arguments that will be made to defend Kasab is that contrary to the charge, he did not wage war against India. The argument is that unlike Parliament and the Red Fort, the Chhatrapati Shivaji Terminus (CST) in Mumbai where Kasab and his accomplice Abu Ismail fired indiscriminately at innocents is not the symbol of authority of the Republic of India.

CST is owned by the railway ministry — an instrument of the Union government. Attacking a railway station or a hospital (Cama) does not amount to waging war against the government of India is the defence.

DNA has learnt that Ramachandran will also question the test identification parade (TIP) by the investigating agencies of a blood-soaked Kasab following the attack. Kasab’s photographs and visuals were flashed across the print and electronic media after the 26/11 attack and he was painted as the culprit. The argument of Kasab’s legal team is that no legally valid TIP was done to check the veracity of allegations that it was indeed Kasab and his accomplices who had attacked places such as CST and Cama hospital.

Aggarwal’s appeal also seeks to point out that a ‘foreigner’ like Kasab cannot be expected to know the law of the country. Sources said Kasab was forced to make a confession before a magistrate without being offered the services of a lawyer. Though he retracted his statement during the trial, he was awarded the death penalty for waging war against India.

“The courts, however, ignored the fact that Kasab did not know the gravity of the confession he made to the magistrate,” a source said. “Therefore, the conviction based on Kasab’s questionable confession is illegal by law and by retracting his statement, Kasab vitiated the trial.”

Ramchandran is expected to take six days to complete his arguments while former solicitor general Gopal Subramanium could take a bit longer to prove that Kasab is not innocent. A two-judge bench of justices Aftab Alam and CK Prasad will hear Kasab’s appeal from January 29, 2012.

“If everything goes according to the case calendar, the Supreme Court could pronounce its verdict around the beginning of April,” a source said.

Kasab who is facing the death penalty on five counts has used all possible ploys to extract the most out of the liberal humanitarian aspects of the Indian Constitution and the legal system. He had earlier said he was a teenager and a foreign national who was tutored by a terror group and did not deserve the death penalty awarded by a foreign court.

He also wrote to the chief justice of India from the Arthur Road jail, seeking suspension of the capital sentence. In his letter, Kasab also expressed his inability to hire a lawyer to defend him. Taking note of the letter, the Supreme Court stayed Kasab’s execution and urged Ramachandran to prepare Kasab’s defence and file a proper special leave petition.

Ramachandran’s legal acumen is well known as he was a lawyer for the Volcker Commission inquiry panel that probed into allegations against former Supreme Court judge V Ramasami.

He also assisted the Supreme Court in the 2002 Gujarat riots cases and his recent report suggested prima facie evidence against Gujarat chief minister Narendra Modi in the murder case of Congress MP Ehsan Jaffri.

Source: Published: Monday, Nov 28, 2011, 9:00 IST
By Rakesh Bhatnagar | Place: New Delhi | Agency: DNA

http://www.dnaindia.com/india/report_exclusive-saving-killer-ajmal-kasab_1618255
accessed on 29th November 2011

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The Death Penalty Scenario in India

India is one of the 193 countries that retains death penalty. There has always been a few imminent judges who have pronounced compelling verdicts upholding the rights of prisoners on death row. There has been increasing debate in various platforms advocating abolition of death penalty or at least to rethink sentencing policies in India. The Indian government has however always been committed to the retention of the death penalty, irrespective of their political ideology. India has voted against a United Nations General Assembly (UNGA) draft resolution on the use of death penalty, saying it goes against the statutory law of the country where an execution is carried out in the "rarest of rare" cases. India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-retarded person and has more recently in 2013 come to include the offence of rape in certain circumstances. Most recently, there is an outrage over child rape and murder.

After observing an unofficial moratorium of 8 years in India, the Indian Government in November 2012 carried out the execution of Ajmal Kasab, convicted in the Mumbai attacks case, without public knowledge. This was followed by the secret execution of Afzal Guru, convicted in the Parliament attack case of 2001, in February 2013, under similar circumstances, without intimating his immediate family or affording a chance of judicial review. In both cases, the executions were carried out under covert operations conducted by the Government immediately upon rejection of their mercy petitions. Before these executions, the last execution to be carried out in India was that of Dhananjoy Chatterjee in 2004 who was convicted of rape and murder and which sentence was carried out after he had spent 13 years in solitary confinement. Following this, several mercy petitions of death row convicts have come to be rejected. The fear of execution of such convicts is imminent. Bolstered by the Government's unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate.

In the recent past, there have been a few empirical studies (mainly four) conducted with prisoners on death row. This has highlighted the situation of prisoners on death row.

(1) Most recently the India Exclusion Report 2017-18 found that fair trial rights and guarantees are reduced to a nullity and seeks to breach the citadel of the collective silence. It further said that Convicts on death row in India belong to groups marginalised along the axes of caste, religion, economic vulnerability and educational deprivation, and their fair trial rights, though a part of the Right to Life guaranteed by the Constitution, are invariably non-existent, a survey of 371 out of the 385 persons living under the death sentence and their families has revealed.

(2) Another study was The Death Penalty Research Project (2015) which was conceived with an aim to document the socio-economic profile of prisoners sentenced to death in India and map their experience within the criminal justice system.

There were two other academic studies that were done conducted by Dr. Reena Mary George –

(3)“Voices of prisoners surviving the death row in India” (2014) done through the University of Vienna under the guidance of Prof. Dr. Christoph Reinprecht (Sociology) and Prof. Dr. Manfred Nowak (Law and Ex-United Nations Rapporteur on Torture). George’s research highlights three salient features, namely: poverty, social exclusion and marginalisation are antecedent to death penalty; death penalty is a constructed account by the state machinery; and prisoners on death row situate dignity higher in the juxtaposition of death and dignity.

(4) Another one “Death Penalty – A Human Rights Perspective” (2009) done through the University of Mumbai under the guidance of Retired Justice Hosbet Suresh. This was a study in Maharashtra with the objectives to firstly study the impact of death penalty on the social, mental, and physical being of the inmate and secondly, to study the perception of opinion leaders on death penalty with reference to human rights. All the above reports are public documents.

According to the National Crime Records Bureau, Prison Statistics 2015, there are 101 prisoners sentenced to death. The actual figure of sentences originally awarded is much higher considering the death sentences of 49 convicts came to be commuted to life imprisonment in the said period. As of today, almost in 2019, the figures are unknown through government statistics, however, research centres claim this figure to be around 371 convicts. During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases. The doctrine has not had the desired effect. According to a former chief justice of the Delhi High Court, Rajindar Sachar: “after the rarest of rare doctrine was introduced in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 while it was 37.7 per cent between 1970 and 1980. For the high courts it rose from 59 per cent in 1970-80 to 65 per cent during 1980-90”. Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency.

Most recently while commuting a sentence in Supreme Court (2018), Justice Joseph did not seek the reconsideration of the Bachan Singh judgment, but only sought to re-examine the purpose and practice of the death penalty, and whether as a punishment, it serves any goal at all. In other words, the death penalty can continue to remain constitutionally valid because of the Bachan Singh judgment, but its application in substantive cases coming before the court must be restricted to only those cases which meet the criteria laid down in that case.

While updating the blog and conducting my own empirical studies, I observed the heinous nature of the crimes that were committed and thought about the families, about their loss, about the victims who for no fault of their own died. If I lost my relative or a dear friend, would I still oppose death penalty and would I still advocate to abolish the death sentence? Having worked in the criminal justice system and also having the seen the other side, where often it is the marginalized, vulnerable and oppressed who are on death row makes me want to advocate for abolition of this punishment. Victims should definitely get justice for their loss, for their pain. No one should escape the rule of law. As long as humanity exists; crime will exist. Should we not re-consider our sentencing policies?

Reena Mary George

Abolish Death Penalty India

Tuesday, November 29, 2011

Exclusive! Saving killer Ajmal Kasab

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