Judicial Analysis on the case of Mohd. Ajmal Amir Kasab vs. State of Maharashtra AIR 2012 SC 3565

INTRODUCTION

A group of 10 Pakistan trained terrorist left India invaded and innocent people were brutally killed, 26-29 November of 2008 will ever remain as black days in Indian history. Right from the birth, India has been a victim of terrorist attack.

The whole world observed that the activities on November 26, 2008 had shaken the very conscience of every Indian citizen. Ajmal Kasab and his companions entered India illegally, bought in weapons and ammunition and with the intention to spread terror across the city. This act is considered to be a war against the Government of India and to liberate Kashmir. The horrific acts left 166 killed and 238 injured.

FACTS

1. Mohammed Ajmal Amir Kasab who was a Pakistani national, earned himself five death penalties and equal number of life imprisonment for multiple crimes in this country. Some of the major crimes which and his associates committed on Indian soil were waging and abetting war against the Government of India; commission of terrorist act; criminal conspiracy to commit murder committing murder of a number of persons; attempt to murder with common intention; criminal conspiracy and abetment; abduction for murder; robbery/dacoity with an attempt to cause death or grievous hurt; and causing explosions.

2. Ajmal Kasab and his comrades entered India illegally, bought arms and ammunitions, fired indiscriminately and killed hundreds.

3. Pakistan based militant organization Laskhar-e-Toiba not only masterminded the whole operation but also handled the terrorists, instructed and guided them in every step of the act.

4. Kasab and his comrades tried to wage war against the Government of India to liberate Kashmir, leaving 166 killed and 238 injured.

ISSUES
    
1. Whether Kasab got free and fair trial before he got convicted?
2. Whether the death sentence awarded to Kasab was equitable?

RULES

Kasab was tried with 2 other accused persons and 9 dead accused and 35 wanted to be accused for various offences under the following legislations- 

1. Indian Penal Code, 1860
2. Arms Act, 1959
3. Unlawful Activities (Prevention) Act, 1967
4. Explosives Act, 1884
5. Explosive Substances Act, 1908
6. Passport Act, 1920
7. Prevention of Damage to Public Property Act, 1984
8. Railways Act, 1989
9. Customs Act, 1962
10. Foreignness Act, 1946

The prime accused Kasab was awarded five death sentences, five sentences of life imprisonment and 66 years and one month of rigorous imprisonment and a fine of Rs.1,36,900/-. All the sentences were confirmed by the High Court and the Supreme Court. Kasab’s petition for Presidential clemency was turned down and he was executed. 

ANALYSIS

Whether Kasab got free and fair trial before he got convicted?

India’s commitment to the rule of law and the requirement to follow the due process of law was reason for the four-year delay. Kasab’s court appointed lawyer S.G. Abbas Kazmi first filled for an inquiry under Section 7(A) of the Juvenile Justice Act, 2001[1] into Kasab’s age on the grounds he could be a juvenile. By ensuring fair trail to Kasab or to any other militant the superiority of democratic ideals is shown. The Supreme Court in its judgment of State vs Mohd. Afzal and Ors  [2] held that Afzal deserves to hand “to satisfy the collective conscience” of the country, the court did not take into the account of the fact that he did not have a proper defence lawyer at the court. This hasty judgment was the main reason for a massive outcry against the Indian judiciary in Kashmir and even in the European Parliament where nearly fifty members of the British Parliament raised their concerns over the denial of fair trial to Afzal.

By denying fair trial to the militant we are indirectly encouraging our own police force to resort to illegal means of torture and encounter killings. When the Rule of Law is upheld and fair trial is administered to all the accused, it sends a message which ensures that the criminal justice system is not corrupt. When the courts are used as political arena, power hungry politicians undermine the entire justice system and destroy the most important pillar of democracy.

Kasab and his accomplices have waged war for their personal reasons of “Jihad” and “liberating” Kashmir but they cannot be considered as alien enemies under internal law and the Indian constitution does not deprive anyone of their rights be it an alien also. Article 22(1) [3] clearly states that any person who is detained should be informed of the grounds of his/her detention and they have the right to consult and to be defended by a legal practitioner. Article 22(2)[4] which says a person who is arrested should be produced before the magistrate within the period of twenty-four hours, Ajmal Kasab has enjoyed the above-mentioned rights and much as India citizen would.

Kasab was provided with basic procedural rights as guaranteed in Article 22(1) of the Indian Constitution, the state provided Kasab with a competent legal counsel despite the resolution passed by the Mumbai Bar Association, declaring that none of its 1000 member would defend Kasab in the court. In State vs Mohd. Afzal and Ors [5], the Supreme Court said for invoking Section 121 of the Indian Penal Code[6], a formal declaration of war is not required: a terrorist attack by militants across the border in India was sufficient to infer a war like situation.

But certain procedural rights which have been evolved by the Supreme Court have not been followed in this case. In the case of NandiniSatpati v. P.L. Dani[7] legal representation was allowed during custodial interrogation and in the case of A.K. Roy v. Union of India[8] the Supreme Court held that even if a accused is denied legal representation statutorily he or she is entitled to a common right of representation through a friend. In M.H. Hoskot v. State of Maharashtra[9], the right to free legal aid has been given a constitutional status by including it in Article 21 of the Indian Constitution. Ajmal Kasab may have been indefensible in court of law with the view of the brutal acts committed by him and his accomplices but every person in India, even an alien is entitled for a free and fair trial. So, while putting this issue to rest we can conclude that Kasab did get a free and fair trial.

Weather the death sentence awarded to Kasab was equitable?

Ajmal Kasab deserved the death sentence for the offences under Section 120-B[10] read with Section 302[11] of the Indian Penal Code, Section 121 of the Indian Penal Code[12] and Section 16 of the Unlawful Activities (Prevention)Act, 1967[13]. Ajmal Kasab portrayed exceptional cruelty, the manner in which he committed the murders was inhuman. The confessional statement confirms the extreme brutality in which Kasab killed the navigator Solanki. Kasab voluntarily joined the militant organization and joined the conspiracy. In the landmark judgment of Bachan Singh v. State of Punjab [4] the court laid down laid down guideline when death penalty should be awarded and this case fits right in. Ajmal Kasab’s council argued about the age of the accused but the acts of Ajmal Kasab his mental age clearly overrides his physical age. Assuming Ajmal Kasab was forced to join the militant organization, but that does not mean he deserves a lesser punishment. There is absolutely no scope for rehabilitation for a person who killed children, women, the elderly and police officers and in addition he never showed any expression of guilt orremorse. He well in advance knew the consequences of his actions and he wanted to be a part of the conspiracy. He indulged in mindless killing of innocent people. Age cannot always be a factor for giving a lesser punishment. Ajmal Kasab attacked the Government of India and the sovereignty of India and for acts like that severest punishment is completely equitable.

CONCLUSION

Our country needs a dedicated legislation with a swifter approach concentrated to minimize terrorism. Punishing offenders should be the prime objective, included with provision to aid the victim’s family and the public officers who are involved in the prevention and controlling of the provision. Mercy powers of the President and Governors should be regulated through law to eliminate delay; clemency should be hardheartedly denied for terrorist acts. Ajmal Kasab was not pushed to join Let, his confessional statement showed that he volunteered, his mental age exceeded his physical age. The punishment awarded by the court was completely based on the atrocity of the crime. The rights of the accused and the victims should be balanced. We should be confident in the judiciary system for imposing the punishment on Ajmal Kasab. Before concluding we must mention the brave policemen and the NSG commando who bravely laid down their lives for the sake of nation and upheld the constitution.

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BIBLIOGRAPHY

• http://www.lawfinderlive.com/jlink.aspx?q=107670&p=1&pos=10&qType=6&tidp=397548&tid=392208 last visited 3/3/2017
• http://www.supremecourtcases.com/index2.php?option=com_content&itemid=99999999&do_pdf=1&id=24977last visited 3/3/2017
• http://in.reuters.com/article/india-kasab-death-execution-idINDEE8AK01N20121121last visited 3/3/2017
• http://www.frontline.in/static/html/fl2922/stories/20121116292203700.htmlast visited 3/3/2017
• http://news.rediff.com/special/2010/may/04/ten-things-you-should-know-about-kasab-verdict-analysis-by-sheela-bhatt.htm last visited 4/3/2017

[1]Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rule

[2]2003 (3) JCC 1669 

[3]Article 22 (1) of the Constitution provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

[4]Article 22 (2) says every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

[5]2003 (3) JCC 1669

[6]Waging, or attempting to wage war, or abetting waging of war, against the Government of India.

[7]1978 SCR (3) 608

[8]1982 SCR (2) 272

[9]1979 SCR (1) 192

[10]Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence

[11]Punishment for murder. —Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.

[12]Waging, or attempting to wage war, or abetting waging of war, against the Government of India.

[13]Punishment for terrorist act

(1) Whoever commits a terrorist act shall

(a) if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and shall also be liable to fine;

(b) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

[14]1980 (2) SCC 684