Death for the killer: Are two views possible?

DEATH FOR THE KILLER: ARE TWO VIEWS POSSIBLE?
RAJEEV DHAVAN


The Death penalty is a form of state legicide as a permissible retributive justice. Controversy abounds on the death penalty. For the purposes of Kasab’s case, it is not necessary to enter into the precincts of that dispute. The Supreme Court closed that controversy by upholding death penalty in Bachan Singh’s case (1980 – over Justice Bhagwati’s dissent). The Court felt that in the right circumstances “it was not possible to hold that…death penalty as an alternative to punishment for murder…is unreasonable and not in the public interest.” The imposition of death penalty on Kasab invites inquiry on the parameters laid down by the Supreme Court. True, Machi’s case (1983) decided that death should be imposed only in the “rarest of rare” cases and that “a balance sheet of aggravating and mitigating circumstances had to be drawn up to effect a conscientious exercise of this power”. If more direction was required, Devinder Pal’s case (2002) listed five kinds of instances which should attract death penalty (i) brutal, “grotesque, diabolical, revolting…dastardly” inflicted murders which would “arouse intense and extreme indignation of the community”; (ii) cold blooded murders which evince “total depravity and meanness”, especially by one in a dominating position or one of trust; (iii) murders of scheduled caste and minorities, bride-burning, dowry deaths, killing of wives to remarry “in circumstances that arouse social wrath”; (iv) murders which are “enormous in proportion”, including large scale or multiple killings; (v) killing of innocent children, women and the infirm, where there was a duty of protection or a public person figure generally loved and respected by the community. Thus motive, manner of killing and social wrath which shocks the social and judicial conscience attracts the death penalty. Social opinion examines the conscience and is not a license to lynch by public opinion, which many want to do in Kasab’s case.

Despite this, in Rameshbhai’s case (2009) two judges disagreed in the Supreme Court on the rape and killing of a 10 year old girl by a watchman. Justice Pasayat was for the death penalty but not Justice Ganguly. An Amnesty Paper reviewing death penalty cases in the Supreme Court from 1950-2006 suggests the imposition of death penalty cases was a “legal lottery”.

Kasab was found guilty for over 80 charges punishable under the Indian Penal Code and was given the death penalty. The death sentence was on five counts –of murder, conspiracy to murder, abetting murder, waging was against the country and terrorism. Classical international law may well assert that only nations can declare and fight wars. But, such classical law cannot govern our present discontents. Earlier these wars were called low intensity operations. But the war that Kasab was engaged in was a Pakistan sponsored covert war which does not have to be declared and is sustained till whenever the aggressor wants it to do so. We are at covert war with Pakistan for which Kasab was a willing trained and armed terrorist. That Pakistan is itself the victim of its own self created terrorism does not take away from its ‘covert’ war against India. I say this because in order to consider Kasab’s case the facts need to be told as they are. Kasab murdered seven people directly and was part of a conspiracy that led to the murder of 166 others. It was cold blooded, gruesome and deadly, with deliberate planned intent. It falls into the ‘rarest of rare’ categories. The fact that police were killed includes them only amongst the murder of the innocent. I do not believe in the death penalty. But that is irrelevant for discussing whether the death penalty was correctly awarded under Indian law. It is not an inter-personal killing but a large, well worked conspiracy to kill innocent civilians.

Kasab was waging a war. To his Pakistani handlers, he was a ‘war’ hero. For India and under Indian law, he is a dangerous criminal. The handlers are no less guilty. Implicit in the Kasab conviction is a message to Pakistan that the Indian legal system regards this as waging war, irrespective of international law definitions. Macaulay’s Indian Penal Code created a very wide definition of ‘war’ under section 121 to include all forms of ‘armed insurrection and invasion. This is very same section that exists in Pakistan’s Penal Code. Pakistan will continue this war. But Kasab is not a ‘soldier’ but a terrorist who at Pakistan’s instance waged ‘war’ in an invasion of India. The significance of the Kasab judgment is that it legally states what diplomacy holds back.

In this situation of covert war, Kasab does not have the rights of a prisoner of war. The killing of civilians as part of a terrorist plan to murder and wage war against the innocent cannot classify him as a war criminal. As a pacifist I do not accept Grotius’s distinction of a ‘just war’ through which Imperial nations conquered the world. Kasab was not to be repatriated to Pakistan, which, in any case, disowns him and the gruesome conspiracy he was a part of. He was also guilty of crimes against peace and humanity. But Judge Tahaliyani fitted Kasab’s crimes within the Indian Penal Code; and rightly so.

So, the answer to the issue of Kasab’s rights is that he was entitled to a fair trial. Did he get it? The answer is that he did. A distinct feature of his trial was that it was held in prison. The same Judge heard the case through. On 29 November 2008, Kasab confessed to the police and on 20 February 2009 made a confession before Magistrate Waghule. On 20 July 2009, Kasab pleaded guilty in court, but denied charges later in December to retract his plea of guilty in January 2010. Kasab was defended in court by Anjali Waghmare and later by Abbas Kazmi who was replaced by KP Pawar as Kazmi was wasting time. On other defence lawyer was shot. But Kasab got legal representation. DNA sample identifies Kasab with articles in the Kuber ship which was hijacked and whose crew was murdered. The 1522 pages judgment considers the testimony of 296 witnesses. Prima facie, it cannot be said that Kasab did not have a fair trial with due process - even though he tried to sabotage the trial himself with many antics.

But Kasab verdict is the beginning of a process which cannot be treated as a forgone conclusion. His right to appeal to the High Court and Supreme Court entitles him to the complete defence by the best Indian lawyers. Even in the Parliamentary attack case, Gilani was acquitted. The mercy petition process will take longer. Of the 308 persons in the death row, 256 are before the courts and 56 have filed mercy petition. If unconscionable delays occur so that the impending noose threatens his being, this, too, may be considered.

Indian justice is notorious for changes in judge at various stages. Justice Tahaliyani has been exemplary in the trial from beginning to end. All cases should proceed day to day on this basis.

To want capital punishment to be abolished is merely a wish which does not and cannot condone Kasab’s actions. Both legally and morally, Kasab is a criminal and to be treated as such – with the care and courtesy of a fair trial. Throughout my lifetime, I have seen continuing covert wars in various parts of the world. To condone these wars is to abjure humanity.