Friday, October 5, 2012

Qasab deserves legal aid to draft mercy plea

Advocate Yug Chaudhry on why due process must be followed even in this rarest of rare cases Posted On Thursday, October 04, 2012 at 02:04:36 AM A week after Ajmal Qasab was sentenced to death, advocate Yug Chaudhry wrote to the Home Minister and the NHRC, pointing out that Qasab was entitled to legal aid in drafting his mercy petition. Dismayed at the news that the mercy petition, drafted without legal help, has been rejected, Chaudhry tells Jyoti Punwani why it is necessary to follow the spirit and letter of the law - even in Qasab’s case. Why are you so concerned with Qasab getting legal aid at this stage? Haven’t we given him a fair trial, despite his obvious guilt? Yes we have given him due process thus far, and that is why we must continue to do so. Qasab has a right to file mercy petitions before the governor and the President, but he lacks the wherewithal to so. He is illiterate, a stranger to our laws, and a foreigner abandoned by his countrymen. Since he is clearly ill-equipped to make a mercy petition which it is his right to make, he must be given the necessary assistance. He also has a right under our constitution to legal aid at every stage of the judicial and post-judicial proceedings. For rights to be meaningful, they must be accompanied by facilities that render those rights accessible. If we believe in our Constitution and the rule of law, we cannot make an exception in his case. Can a legally drafted mercy petition make any difference to Qasab’s fate? He cannot plead innocence or lack of a fair trial. Neither would a fair trial have made any difference to his fate, but would that have been a reason to deny him one? The question is not whether a mercy petition would make a difference, but whether he is entitled to make one and to receive the necessary assistance. The moment we allow ourselves, through sheer majoritarian sentiment, to decide outcomes without due process, we put all our liberties in jeopardy and negate the very essence of rights, which is to protect each of us from ad-hoc, majoritarian caprice. The scope of a mercy petition encompasses more than innocence and a fair trial, and few lay persons, let alone an illiterate person, would be competent to draft one unaided. Given that the death penalty exists in India, doesn’t Qasab deserve it? An illiterate boy of 13 sold by his family to the LeT, brainwashed into jihad, transformed into a killing machine and sent as a footsoldier to India are mitigating factors that entitle him to the lesser penalty. Qasab’s crime should be contexualised without minimising it, and then we should ask ourselves why are we clamouring for Qasab’s execution while content with life sentences for Babu Bajrangi and Maya Kodnani who perpetrated the Narodya Patya massacres. They killed more or less the same number of people in an equally gruesome manner. Maya Kodnani held public office, and turned on those she was charged to look after and protect. If she doesn’t deserve the death sentence, why does he? How else can Qasab be punished, given the enormity of his crime? Keep him in prison for the rest of his life. Treat him like a human being so that he becomes human again and realises the enormity of his crime. Allow for the possibility of repentance and reformation. Do you feel Qasab deserves mercy? I think 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 would be impoverished and inhuman, for mercy is quintessentially a human quality, not found elsewhere in the natural world. In classical thought and in many faiths, mercy is the manifestation of divinity within us, of a god who is the ultimate bestower of mercy. As for “deserving”, give each man his deserts and who shall escape a whipping? Justice and mercy operate in mutually exclusive realms. It is only when justice demands that punishment be inflicted that mercy comes into play. Mercy tempers justice, makes it less exacting, more humane. Excluding a fellow human being from entitlement to mercy has nothing to recommend it except a very base blood lust that we encourage at our peril. If we have to become a more humane and compassionate society, and leave a better, less blood-thirsty world behind for our children, we have to curb our instinct for bloody retribution. Source: [accessed on 4th October 2012]

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