V. VENKATESAN, Frontline, Volume 29 – Issue 22 :: Nov. 03-16, 2012


It took four long years to sentence Ajmal Kasab to death for his role in the 26/11 terrorist attack. But this delay is no evidence in itself that due process was followed at every stage of the case.


Mohammed Ajmal Kasab.


ALTHOUGH Mohammed Ajmal Amir Kasab’s involvement in the terrorist attacks in Mumbai in November 2008 is an open-and-shut case, it took nearly four years to conclude because of India’s commitment to the rule of law and the requirement to follow the due process of law. However, this delay is no evidence in itself that due process was followed meticulously at every stage of his trial, conviction, sentencing and appeal.

S.G. Abbas Kazmi, Kasab’s court-appointed lawyer in the trial court, first applied for an inquiry into Kasab’s age on the grounds that he could be a juvenile. According to Section 7A of the Juvenile Justice Act, 2001, whenever a plea is made that an accused is a juvenile, the court has to conduct an inquiry and return a finding about the age of the accused. Special Judge M.L. Tahalyani of the trial court summarily rejected his application because he saw it as a time-wasting tactic. Ujjwal Nikam, Special Public Prosecutor in the 26/11 case, realised that this would give Kazmi grounds for appeal, and so a few days later, he made an application with an identical prayer—to conduct an inquiry into Kasab’s age. And this time the application was allowed.

During the inquiry, the prosecution relied on the expert evidence of doctors who opined, on the basis of X-rays (ossification test), that Kasab was about 21 years of age. Kazmi’s request for a copy of the X-ray report to seek the opinion of other experts was turned down. Kazmi was told that his witnesses could examine the report when they stepped into the box to give evidence and there was no need to furnish the report in advance. Getting other experts’ opinion may have helped Kazmi in contesting the technical evidence.

(It is well settled that medical evidence of age is unreliable, and if there is even a slim chance that a juvenile is being sent to the gallows, that should be eliminated.)

During the confirmation proceedings in the Bombay High Court, Kasab’s lawyers made an application seeking another medical test to confirm his age. This application was also rejected even though High Court confirmation proceedings are deemed to be a continuation of the trial court proceedings and a counsel is free to lead new evidence relevant to the issue of guilt or sentencing.

The charge sheet in this case runs to more than 20,000 pages. Kazmi sought sufficient time to study these papers and prepare for the trial. He was given eight days, of which three days were spent in court pleading for medically examining Kasab’s age. Yet the court concluded that Kazmi was allowed ample time for preparation and that he never complained about it.

Kazmi, however, told Frontline over phone from Mumbai that he did complain about the insufficient time given to him and this was part of the court’s record. During the trial, Kazmi sought the trial court’s permission to inspect the various places connected with the terrorist offences, especially the boat Kuber, which had allegedly been used by Kasab and other terrorists to reach Mumbai’s shores and had been recovered under Section 27 of the Evidence Act. It had Kasab’s fingerprints and DNA samples. A study of the spot was necessary if Kazmi had to cross-examine witnesses who deposed to these aspects of the case. But the court refused permission.

Kazmi’s dismissal

Kazmi also raised objections to the permission given to the prosecution to adduce evidence through affidavits rather than orally, which would have enabled him to cross-examine witnesses. But the trial court dismissed Kazmi himself, saying he was not cooperative. (Under the Code of Criminal Procedure (CrPC), a judge does not have the power to dismiss a lawyer. He can report the lawyer to the Bar Council if he wishes.) By this time Kazmi had examined about 250 witnesses and was well acquainted with the case. His replacement, K.P. Pawar, was the lawyer originally appointed by the court to assist Kazmi.

The eminent legal expert Fali S. Nariman, in an article in Mumbai Mirror, said that the dismissal of Kazmi rendered the trial unfair. “Mere non-cooperation is no grounds for removing the lawyer when the accused has his confidence in him, and this may perhaps vitiate the final verdict in the case,” he said, and added that Kazmi’s dismissal did not appeal to his sense of justice.

Strangely, the issue of Kazmi’s dismissal by the trial court did not figure in the Bombay High Court’s judgment dismissing Kasab’s appeal. The Supreme Court’s judgment, delivered on August 29 by a Bench comprising Justices Aftab Alam and Chandramauli Kumar Prasad, while dismissing Kasab’s appeal against the High Court judgment also omits any reference to Kazmi’s dismissal by the trial court and does not throw any light on whether it was fair. Kazmi himself did not challenge his dismissal, but filed a petition alleging that the trial judge committed contempt of court. The High Court dismissed this petition in June this year, but not before expunging certain disparaging remarks made by Judge Tahalyani, such as calling Kazmi a liar.

For the High Court proceedings, two senior criminal lawyers, Amin Solkar and Farhana Shah, were appointed to defend Kasab. They applied in writing to be allowed to meet Kasab without the police being present within hearing distance. The High Court Bench, which heard Kasab’s appeal, denied them permission on the grounds that Kasab was likely to harm the lawyers.

During the confirmation proceedings in the High Court, the lawyers made an application to have Kasab psychologically evaluated; this they wanted done not to plead insanity for Kasab but to bring on record mitigating circumstances as the defence is required under law to do during a sentencing hearing. This application too was dismissed.

Amicus Curiae’s stand

Raju Ramachandran, Senior Advocate in the Supreme Court, told Frontline that as the Supreme Court-appointed amicus curiae (friend of the court), he was a defence lawyer for Kasab. But he added that he did not feel the need to meet Kasab even once to take instructions from his client before arguing his case before the Supreme Court. The reason, according to him, was that the case records from the trial court and the High Court were fairly exhaustive and there was no occasion to meet Kasab. Here, the key question to ask is whether the failure to meet Kasab hindered Ramachandran’s ability to argue on his behalf.

Ramachandran responded to an e-mailed question from Frontline as follows: “Neither the High Court nor the Supreme Court takes evidence, either on the facts of the case or on the state of mind of the accused. The appellate court’s view or even the trial court’s view on the question of sentence (of which remorse is but one aspect) has to be based on the evidence on record. A counsel’s impression based on an interview is quite irrelevant. In fact, if such an impression is to be taken into account, a counsel would become a witness. The Supreme Court’s view on remorse or lack of it was based on the record to which its attention was drawn.”

But is Ramachandran also not duty-bound to help Kasab draft his mercy petition to the President, after the dismissal of his appeal by the Supreme Court? The fact that he did not help Kasab in this matter is curious. His response to Frontline was as follows: “Here again, the advice of the amicus could have been sought through queries through the registrar, but this was obviously not considered necessary. This option was obviously made known to him in jail itself, as I am sure it is to others on death row.”

Death sentence

One of the important arguments against imposing the death sentence in terrorism cases is that a terrorist commits the horrendous crime in order to achieve martyrdom and also to inspire future martyrs to his cause. Therefore, imposing the death sentence on the person accused and convicted for terrorism and waging war defeats the very objective of the death sentence, which is to deter such crimes.

But the Supreme Court’s judgment in Kasab’s case ducked the issue of deterrence altogether. It relied on Kasab’s statement that he aimed to become a martyr as proof that he had no remorse and, therefore, could not be reformed.

The court apparently found merit in the amicus curiae’s suggestion that the court ought not to consider the probable consequences, whether kidnapping or martyrdom, but follow the principles laid down in the Bachan Singh vs State of Punjab case while sentencing Kasab. The trial court justified imposing the death sentence on Kasab because keeping him alive under a life sentence would be an invitation for a Kandahar-type hijacking (when an Indian Airlines flight was hijacked by some militants and the drama ended only after India released three jailed militants). Ramachandran told the Supreme Court that this reasoning of the trial court was as erroneous as the one that suggested that the death penalty should not be imposed because it would give a fillip to martyrdom.

The Ministry of Home Affairs, on October 23, recommended to President Pranab Mukherjee that Kasab’s mercy petition be dismissed. The Ministry appears to have taken the decision soon after receiving a report from the Maharashtra government making a similar plea.

Sources in the Ministry indicated that it gave priority to recommending the dismissal of Kasab’s mercy petition even while mercy petitions filed by other convicts were pending with it as well as the President because the judicial verdicts had brought out overwhelming evidence against Kasab. Besides, the Ministry appears to have felt that there was no special circumstances making Kasab deserve clemency.

All these reasons would make one wonder whether the state considers itself an agent of retribution while exercising the noble power under Article 72 of the Constitution to commute a death sentence. As Usha Ramanathan, legal commentator and a campaigner against the death sentence, says, the state should use Article 72 to break the cycle of retribution rather than continue it.