Photograph of Ajmal Kasab, one of the ten terr...

Photograph of Ajmal Kasab, one of the ten terrorists involved in the 2008 Mumbai attacks at the Victoria Terminus station. (Photo credit: Wikipedia)




by Abhay Vaidya Sep 1, 2012




The public reaction to the Supreme Court’s death sentence on the lone-surviving 26/11 terrorist Ajmal Kasab is not as one-sided as it appears.


While the vast majority has hailed the verdict, with the Shiv Sena going to the extent of distributing sweets and demanding a Taliban-style public hanging of Kasab, there’s the voice of a small and fearless group at the other end too. The eminent social activist Medha Patkar, for one, has described the verdict as “unfortunate”.


“I call it unfortunate because I do not support the concept of the death penalty. I believe that the state does not have the right to take anyone’s life, irrespective of the crimes committed. By that logic we would then have to condone the murder committed by a person whose mother was raped,” Patkar said while speaking on police reforms during a Professionals Party of India panel discussion in Pune on Thursday.




Others who have been seeking the abolition of the death penalty in India include senior Supreme Court (SC) counsel Colin Gonsalves, former SC justice AK Ganguly and Justice KT Thomas, advocate Vinay Naidoo and former chief justice of the Delhi High Court Rajendra Sachar.


In his various writings on the subject, Justice Sachar has drawn references to show that Mahatma Gandhi, BR Ambedkar and Jaiprakash Narayan, were among those against the death penalty.


The euphoric reaction to Kasab’s death sentence is somewhat misplaced as the masterminds of the 26/11 Mumbai terror strike have remained untouched. Kasab was at the lowest point in the terror chain and had been adequately indoctrinated to have embraced death willingly. The SC verdict is logical given the extreme nature of his act of war against the Indian State; however, it’s neither outstanding nor extraordinary in any way.


What is likely to be extraordinary is the journey from here on and the time it takes to executing the sentence.


The death sentence of three of the four assassins of the late prime minister Rajiv Gandhi continues to be pending over the last 11 years, even though it has been 21 years since Gandhi was assassinated on 21 May 1991 during an election rally at Sriperumpudur.


Following a humanitarian gesture by Gandhi’s widow Sonia, the death sentence of the fourth assassin, Nalini Murugan, was commuted to life imprisonment. In a touching act of forgiveness, Priyanka Gandhi met Nalini in prison in 2008.


The Madras High Court had fixed the date for the three executions for 9 September 2011, but this was stayed after eminent lawyers Ram Jethmalani, Colin Gonsalves and R. Vaigal appealed for commutation of death penalty to life in view of the inordinate delay in disposing the mercy petition of the convicts. Bowing to public pressure, Chief Minister J Jayalalitha had also moved a resolution urging the President to commute the death sentences. Among the many petitions to the chief minister was the one from the Tamil Film Director’s Union which pointed out that globally about 130 nations had abolished the death penalty.


As things stand, while nearly 140 countries have abolished the death penalty, India, along with the United States, China and Japan, is among the 58 nations which upholds the death penalty. However, with just one execution in the last 17 years, and more than 300 convicts on the death roll, India has been moving towards a moratorium on capital punishment. This is recognised as the first big step towards the abolition of the death penalty.


The number of executions in India fell drastically after the Supreme Court’s landmark verdict in 1982 in the Bachchan Singh vs State of Punjab case that the death penalty should be applied in the “rarest of rare” cases.


In November 2011, Justice Ganguly described capital punishment as “barbaric” and “irresponsible” but legal, while speaking in his personal capacity at a law school. He said that even the “rarest of rare” doctrine that was used as the basis for pronouncing the death sentence was flawed because it is “a grey area as it depended on the interpretation of individual judges”.


There is no big movement for the abolition of capital punishment in India and yet, the differing opinion on this sensitive issue has not been missed out by perceptive observers. As The Economist noted in its October 2011 edition, the case of Ajmal Kasab’s death penalty is a “big test” for India and “It would be a brave Indian who demands that he be spared.”


Indeed, the debate for and against death penalty in India is bound to intensify as the unfolding months and years reveal the fate that’s in store for Kasab.