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: http://www.mumbaimirror.com/article/2/2012100420121004020503161a2c1a95e/Qasab-deserves-legal-aid-to-draft-mercy-plea.html [accessed on 4th October 2012]

How Kasab might change Mumbai's take on capital punishment

1 Sep, 2012, 02.22AM IST, Vikram Doctor,ET Bureau At some point in the last century, executions within Bombay itself stopped altogether, with the gallows being moved to Yerawada Jail in Pune. It isn't clear when the actual last execution in the city took place, but the last in Maharashtra was in 1995 when Amrutlal Joshi was executed for murdering three members of the Sadarangani family in Bombay's Khar suburb. That execution was the 100th conducted by Arjun Jadhav, the state's hangman, but nearly all were done in Pune. Kasab will have to be taken there too, unless the authorities decided to build temporary gallows at Arthur Road jail. Joshi's execution was the second last in India (Auto Shankar's execution in Salem is considered to be the second last, but it was on April 27, 1995 and ToI 's report dates Joshi's execution to July12). After that Dhananjoy Chatterjee was executed in Kolkata in August 2004 and since then, despite the furious promises of politicians and appeals by TV anchors, there have been none. It is called for, of course, after every violent crime, and the sentence is often passed, yet it is not carried out. Kasab will probably change that. The scale of the crime he was involved in was so horrific and public, amounting almost to armoured invasion, that it almost demands a symbolic response and the Supreme Court's verdict reflects this. Cynical calculations also suggest that the General Election of 2014 makes it likely, since elections and executions share a dubious history. Politicians have long used executions as a way to show their toughness - for example, French President Giscard d'Estaing was accused of allowing the last executions in French history, in 1977, to help his dwindling re-election prospects. But will Mumbai really cheer when Kasab hangs? Certainly, many like the politicians, aggressive TV anchors and, more understandably, the families bereaved by 26/11 will. And for all the trends away from capital punishment noted above, it should be remembered that this is also the city which tacitly approved of the era of encounter killings staged by the police. These de facto executions helped bring an end to the worse of gang violence, but it also very probably killed off a few innocents, which is exactly what the long judicial process for capital punishment is meant to avoid. To which many in the city would shrug, and say it is sad, but overall it worked, and there were none of the delays and wildly escalating costs of the Kasab trial. For a city always on the run and in pursuit of wealth, it is this part of the trial that has been the most annoying (along with the security restrictions on the neighbourhood near Arthur Road jail). But there is another uncomfortable result of the delay and that has been Kasab himself. Because while it is very easy to see Kasab-the-Terrorist as the "most hated man" in India, the reactions to Kasab-the-Kid-inthe-Dock are a bit more complex. You can see this in the reactions of the police who have been guarding and dealing with him. While never failing in their strict duty, it has been possible to see a slightly softening in their tone as they describe his evident ignorance and naivety, his often disarmingly simple requests and even childishness, which can be seen in the fact that he is alive at all: while his comrades understood they would probably die, and did, when the moment came Kasab clung to life, which is why this drama is with us at all. None of this should suggest that the police or lawyers have become fond of Kasab, but he is a familiar and understandable type, unlike cold and determined ideologues like Abu Jundal. Unless he's managed the most amazing of acting jobs, Kasab is the simple small town kid who came to a big city and got caught up in things beyond his imagination. He could be the kid whistling in the cinema at the latest Eid blockbuster, or riding on top of trains, or hustling you into buying a dubious cellphone on the street or, for that matter, stealing your own cellphone, or maybe even becoming shooter with a gang, but always something recognisable to Mumbai. And yet he did what he did on 26/11, which is a chilling thought since it suggests how easily people can flip. But if, to modify Hannah Arendt's phrase for Adolf Eichmann, he embodies not the banality, but the sheer ordinariness of evil, it still puts him somewhat short of that completely black bogeyman that all those vengeful voices in the media want to see strung up. Some might even acknowledge that Kasab is what Mahatma Gandhi meant when he explained, in his magazine Harijan, in April, 1940, why he opposed capital punishment: "Under a State governed according to the principles of ahimsa, a murderer would be sent to a penitentiary and there given every chance of reforming himself. All crime is a kind of disease and should be treated as such." When Kasab walks up those steps, at least some in the city that he attacked will remember what Gandhi said. Source: The Economic Times http://economictimes.indiatimes.com/news/politics/nation/how-kasab-might-change-mumbais-take-on-capital-punishment/articleshow/16094167.cms?curpg=2 [accessed on 1st September 2012]

How will we kill Kasab? Let’s count the ways

"Death penalty diminishes us. It elevates the spurious notion of an eye for an eye as a desirable form of retribution" By: Salil Tripathi Soon after 26/11, Balasaheb Thackeray wanted him hanging in a public square. Perhaps Azad Maidan would do. Near the jhunka-bhakar stall where you can drink kala khatta and watch schoolboys play cricket. Or, perhaps in the ticket hall of the Chhatrapati Shivaji Terminus. Its floor was once bloodied, then it was wiped clean of bloodspots. Let there be more blood. How about the Gateway of India? Again, it could be somewhere near the Shivaji statue. Kasab to face the firing squad, looking at the rebuilt Taj. There, we rebuilt what you sought to destroy; there, your accomplices were killed; there, now you go—the rifles can point skyward, brought down at the command, the aim taken, shots fired. How about beheading him in a public square as they do in those countries? And then televise it—the networks would love it. The anchors will have a ring-side view, and they will describe, in graphic detail, as Kasab collapses—only once, not 166 times. See him writhe. Now, does that feel better? Or we could do something else—be like Norway. There, Andres Breivik bombed the city centre and went to an island and killed teenagers. Seventy-seven people died. They tried Breivik. They found him sane. And then they sent him to jail for 21 years. It is unlikely he will ever get freed. Two nations. Two men. Two evil crimes. Two deeds committed without remorse. And two verdicts. Seeking revenge is a deeply personal emotion. The survivors and the families of the victims will naturally have a different perspective of closure. But they know that killing Kasab won’t bring their loved ones back. Some may rejoice at the verdict, some may feel justice is served. Some will cling on to the memories of their loved ones. And a few may think that this verdict, and this punishment—if carried out—responds to a visceral desire among Indians who want to get even, who want to avenge many other crimes, a philosophy sharpened by the wars, the riots, the murders, the explosions, and make Kasab, the one who got caught, the poster boy of all those crimes, and pay for it, many times over. They may not want any part of that. The question is: is India a society or a lynch mob? Disclosure: I am against the death penalty. Not because it is not a deterrent—I don’t like it even if it is, because it is impossible to prove that it deters crimes not committed. Not because it is economically wiser to keep a person in jail, rather than spend on an appeals process which will add cost to the exchequer, because this isn’t about cost-benefit analysis. But because it can get it wrong—advanced forensics in the US have shown that many times the wrong defendant is executed. The Indian Supreme Court has noticed errors, too, as 14 retired judges, including A.P. Shah, the former chief justice of Delhi high court, have pointed out. And also because it can be biased—defendants who are poor, from a minority community, or who are not of sound mind, are more likely to get the death penalty than those who are better-off or from the majority community. (Of course there are exceptions.) And finally, because the death penalty diminishes us. It elevates the spurious notion of an eye for an eye, a tooth for a tooth, and a life for a life, as a desirable form of retribution. The death penalty gives the state the right to take the life of an individual, no matter how flawed. Executing a murderer does not bring back any of his victims. The death penalty is driven by a desire for revenge, not justice. In succumbing to such vengeful feelings, we embrace the murderer’s inhumanity, and forget our own humanity. Let the defendant who cannot be redeemed remain in jail, for life. Let him learn— not necessarily skills though that would be nice, but the ideas of remorse, of guilt, of shame, of repentance. Let him figure out how he can atone for what he did. Let us not do to him what he did to others, let us remind him why we are not like him. That is after all our strength, not weakness. Source: http://www.livemint.com/2012/08/30123926/How-will-we-kill-Kasab-Let8.html?h=A1 [accessed on 30th August 2012]

Ajmal Kasab's mercy plea will be processed fast: Shinde

NEW DELHI: With a presidential pardon the only option before Lashkar-e-Taiba terrorist Ajmal Kasab after the Supreme Court upheld his death sentence, home minister Sushil Kumar Shinde on Wednesday said the government would ensure that the Pakistani's mercy plea, if it came, was processed in the minimum possible time. "If Ajmal Kasab files mercy plea, we will ensure that it is disposed of in minimum time," Shinde said when asked whether Kasab's execution would take time since he has the option of moving a mercy petition. The delay in disposing of mercy petitions of death row convicts has created unease within and outside the government. At present, 11 mercy petitions, including that of Parliament attack convict Afzal Guru, are pending with the President. Guru had filed his mercy plea in 2006. It took the government over five years to process his file before sending it to the President. Though the government gave its opinion rejecting Guru's mercy plea to the President over a year ago, it is still pending with the President's secretariat. It is the discretion of the President when to take a final call over the matter as the Constitution does not provide any time-limit to dispose it of. Home secretary R K Singh said Kasab has not yet filed any mercy petition. "We will see once he does," he said. Information and broadcasting minister Ambika Soni appeared more straightforward on the issue. She said while it was Kasab's constitutional right to seek a presidential review, such clemency should not be shown. "This was an awaited judgment by Supreme Court. I think the judgment should be abided by... Personally, I think there should be no clemency for such cases," she said. Source: The times of India TNN | Aug 30, 2012, 03.05AM IST http://timesofindia.indiatimes.com/india/Ajmal-Kasabs-mercy-plea-will-be-processed-fast-Shinde/articleshow/15969385.cms [accessed on 30th August 2012]

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

Ajmal Kasab, 26/11 terrorist, gets death

Mumbai: Ajmal Amir Kasab, the Pakistani terrorist who killed scores of people during the attacks on Mumbai in November 2008, was on Thursday sentenced to death by a court.

Special Judge M L Tahaliyani gave Kasab, 22, death sentence on five counts of murder, conspiracy to murder, waging war against the country, abetting murder and committing terrorist activities under the Unlawful Activities Prevention Act.

Kasab was also awarded life imprisonment on five other counts, which included attempt to murder, criminal conspiracy and violation of the Explosive Substances Act.
"In the court's opinion, Kasab has no chance to reform. Keeping such a terrorist alive will be a lingering danger to the society and the Indian government," said Tahaliyani while pronouncing his verdict, three days after he convicted him for the massacre.


The judge cited the example of the Kandahar hijack case in which arrested terrorists were swapped for passengers held hostage. "If Kasab is kept alive, this situation may occur again," he said. “Kasab has been convicted of grievous crime and that he should be hanged by the neck till death,” said Tahaliyani.


Kasab broke down during the sentencing and the judge gave permission to drink water.The court said Kasab had gone to the Lashkar-e-Toiba, the Pakistan militant group blamed for the Mumbai attacks, voluntarily and offered to become a mujahideen.


The court rejected defence lawyer K P Pawar's argument that Kasab had acted on the directions of Laskhar founder Hafiz Sayeed. Pawar’s plea that his client should be given life sentence because he was young and was "blinded by religion" was rejected by the judge.


Kasab was found guilty of 80 offences, including waging war against the nation, which is punishable with the death penalty. Kasab and his associate, Abu Ismail, killed over 70 people at the Chhatrapati Shivaji Terminus, before heading for the Cama hospital, where they killed three senior police officers. As per the law, the death penalty will have to be confirmed by the Bombay High Court. Kasab also has the right to move the High Court against the trial court verdict.


Even if the High Court upholds the judgment, he can go in appeal to the Supreme Court. If the apex court too upholds the sentence, he has the option of filing a mercy petition before the President of India.


Ref: http://ibnlive.in.com/news/ajmal-kasab-2611-terrorist-gets-death-sentence/114699-3.html?from=tn accessed on 6th May 2010

"I'm not bothered if I hang" says Mumbai gunman

The lone surviving gunman in the Mumbai attacks said today that he was ready to go to the gallows and wanted no mercy from the court for his role in one of India's worst terrorist acts, which left 166 people dead.

"Whatever I have done, I have done in this world. It would be better to be punished in this world. It would be better than God's punishment. That's why I have pleaded guilty," Ajmal Kasab, a Pakistani, told the court.

Kasab unexpectedly confessed on Monday to taking part in the three-day attack last November, leaving a trail of carnage across downtown Mumbai, India's financial and entertainment capital.

"If I am hanged for this, I am not bothered. I don't want any mercy from the court. I understand the implications of my accepting the crime," he said.

Read the full story: http://www.guardian.co.uk/world/2009/jul/22/mumbai-terror-attacks-kasab-execution