Who after Kasab and why?


Thanks to our recently elected President, Ajmal Kasab of the 26/11 Mumbai may¬hem notoriety jumped the queue of condemned prisoners in the death row–over a dozen are waiting the president’s decision since long before he was convicted — and found justice in the hang man’s noose in the early morning of the 21st Novem¬ber.

India’s over all response to Kasab’s execution, as a peculiar blend of a sense achievement and satisfaction–achievement at being finally able to punish a Pakistani terrorist with the maximum penalty he deserved, and satisfaction at being able to avenge the death of 166 people in the hands of Kasab and his nine comrade killed in action. 

Most of us are so obsessed with the feeling that ours is a weak sta¬te incapable of taking any firm action on time that even the execution of a lone criminal has been hailed as a sure sign of the government’s decisiveness and the strength of the state. In the process we deliberately manage to ignore the fact that ten armed Pakistanis could succeed in evading our coast-guards to reach Mumbai as per their plan. If they could succeed in this first attempt one can well im-agine how many such boats and dhows may be bringing in clandestine materials drugs and munitions every week, if not day. We should be panicky about our shocking¬ly shabby state of coastal security.

What did Kasab and his comrades expose was merely the tip of an iceberg and that is a major cause of concern. The state’s per¬ception of its own weakness was highlighted by the secrecy preceding and surround¬ing the execution. The last previous execution as that of Dhananjay Chatterjee on 14 August 2004, and it was known to all quite a few days in advance. Why in Kasab’s case the execution was hurried and the media was only told of the fait accompli? What government fearing?

Indian Muslims, in general have always condemned such senseless killings, and the authorities of the Mumbai Muslim graveyard had already expressed their attitude by not allowing his nine dead comrades to be buried within their premises, because of their un-Islamic act. Our home minister even declared with pride that only 17 persons were aware of the day of the execution, although it was revealed soon that our chief security adviser had already spoken about Kasab’s impending it execution to his U.S. counterpart during a meeting. Kasab, a mere cog in the terro¬rist machinery, did not pose a threat to any one, whether alive or dead. If anyone, has been endangered by his execution then it is Sarabjit Singh who is waiting in the death row in Pakistan jail.

Unfortunately, now that Kasab has been done away with the demand for the life of another in the death row, Afzal Guru, has been again raised, orchestrated by none other than our main opposition party, the BJP. Shamefully, I must admit, this demand reflects the revengeful hubristic urge of the majority, who find in such high-profile executions an evidence of the nation’s strength and aggressive spirit alleged-emasculated by the liberal secularism enthroned in our constitution and pursued by our present government. However, there is a lot of difference between the two cases of Ajmal Kasab and Afzal Guru. 

If Kasab was accused of waging a war against the Indian state and killing many innocent people on 26/11/2008, Guru is accused of similar crimes committed on 13th December 2001 within the premises of the parliament itself, the seat of our sovereignty. But, there the similarities end. While Kasab was directly involved in killing people, and had been caught on vi-deo while engaged in that act, Guru has been merely accused of being a conspirator supported by circumstantial evidences, many of which may be of doubtful validity. 

When the Supreme Court of India confirmed the death sentence of Guru not just non–party human right activists, like Nandita Haksar and Dr. Nirmalangshu Mukherjee, but even many legal luminaries raised their voice in indignation against the verdict. They all, from varying angles, pointed at the loopholes in the argument leading to his death sentence. I am no human rights activist nor a jurist. But, the reported end remark of the Supreme Court’s verdict “Nothing short of it will satisfy the collective conscience of the nation”, sounds like a political decision aimed at winning popularity and vote. This is exactly what the critics of the court’s decision are hammering at. Even a day after Kasab’s hanging some leading jurists of the land ag¬ain urged the government not to rush with Guru’s execution. Evidently, they are not satisfied with the evidences and the process involved in his conviction. 

Even, as late as on 14th July, this year, a few retired judges wrote to our president favouring the commutation of 13 prisoners now awaiting their turn in the death row. This means that many of them find some loopholes in the decisions arrived at by their own professional ‘brothers’, and therefore suggest caution and moderation. Before carrying out a death sentence one has to be more than 100% certain about the prisoner’s guilt, because death sentence is the only punishment which once carried out carried be neither reversed nor compensated. The U.K. banned capital punishment in 1956 after it as proved that someone hanged eleven years ago was innocent of the alleged crime. 

Besides, it has been found that the threat of death is no deterrence for someone planning a murder. The potential murderer, like any criminal, believes that he would not be apprehended, and even if caught would manage to escape with light punishment, thanks to legal loopholes and extra-legal pressures. The state of Jaipur was the first place in India to ban capital punishment, and that was in 1933. There¬after there was no rise in the number of murders committed. Capital punishment was, reportedly, introduced in Travancore only after the state’s accession to India, and there has been a visible rise in the number of murders since then. That is why most countries by now have done away with capital punishment, and even as late as on 19 November 110 nations tabled a resolution before the U.N. General Assembly seeking a global ban on capital punishment, India, unfortunately, was in a small group of 28 nations that opposed the resolution, Murders do take place in almost every state but most of them have, with experience, chosen not to retaliate one killing with another.

However, the disposal of any mercy petition must take into account many considerations other than purely legal ones. For example, in the case of Nalini, an accused in the Rajiv Gandhi murder case the death penalty was deferred taking into consideration the age of her child she was then nursing. We do not know how far the mercy sought for her by Sonia Gandhi and Priyanka has contributed to the permanent postponement of execution. In case of Afzal Guru such political considerations are very sound and strong. Unlike Kasab, Afzal Guru is an Indian citizen and a Kashmiri, and the entire valley is nearly unanimous in their conviction that he is innocent, and has been framed by the relevant agencies of the Government of India to prove their efficiency after having failed to prevent the attack. So, it is only fair to expect that the valley would again explode in violence once Guru is sent to the gallows. In the early 80’s we had been sitting on the fate of Maqbool Butt for years. But, after that abduction and murder of Indian Dy. High Commissioner at Birmingham, Ravinder Mahtre, Maqbool Butt was hanged at Tihar jail in 1984. That, everyone in Kashmir knows, set the fuse blazing, and what followed is history. Do we knowingly want a repetition of that? In the words of Yasin Malik of the JKLF, “Maqbool Bhat’s execution had serious repucussions. A Maqbool Butt was born in every home in Kashmir. Please do not hang Afzal Guru unless you want to see another generation of Kashmiris carrying guns in their hands”. Kashmiris are fast moving away from violence, and Yasin has implored the Indian, authorities to “respect this big gesture” and “not to force Kashmiris into another phase of violence by flanging Afzal Guru”. Our President and his advisers in the Home Ministry and the law department should study the implication of carrying out an irrevocable decision from not only from humanitarian but also from their political, angles too. That is why the even the highest judiciary is not the final authority in carrying out death sentences. It has to be a legal-political decision that takes into consideration all possible national and international repercussions.