It’s surprising how a judgement which has affected so many lives is yet to be made available to the public. After searching online for almost an hour, I gave up. So much for the Indian Judiciary and the age of information. For now we will have to rely on the news outlets to tell us what exactly Judge M L Tahaliyani told the Court room today.
The Special Sessions Court will now be sending the judgement to the High Court for confirmation under Section 366 of the Code of Criminal Procedure. And this will be just the beginning of what is going to be a long appeals process should Kasab choose to appeal. Will he appeal? I’m guessing we’re all expecting him to appeal. However, if for some reason he decides not to appeal, does it mean that he repents what he has done? That certainly would be a first time and give us a lot to ponder about.
What is certain is Kasab has a long appeals process ahead of him and probably a longer life that he could have imagined back home. By handing him the dealth penalty, the Court has been unable do justice in the larger sense. This was a brilliant opportunity to lay the foundation for new-age justice. If we have progressed as a civilization on our understanding of human behaviour, it most certainly hasn’t been reflected in the judgement. What we have effectively done today is allow Kasab to be used for rhetoric in the next ten - fifteen federal and state elections.
The 26/11 could have been a great tool is improving our security infrastructure. The events on 26/11 were only possible because of our ineffective security infrastructure. It exposed how the Government was unable to secure what is common hailed as the economic capital of India. We can only imagine how exposed people are in other cities across India. The judgment should have detailed the gross inadequacies of the system at various points. Beginning from entry of the gunmen into the territorial waters, to looking why Kasab’s bullet was able to penetrate the “bullet-proof” jacket worn by police officers that day; this was an opportunity for the Judiciary to hold the Government accountable.
The Judgement sounds immature on several counts. First, the Judge orders - “To be hanged by the neck till death.” Terrorists are program to kill and be killed, they last thing they fear is the death sentence. For a long time now, it has been known that giving the death sentence will only be used a propaganda by terrorists to motivate future suicide attacks. Secondly, the Judge states that Kasab has no chance of reforming. I feel this is deeply disturbing coming from a Judge who I assume will be involved in other criminal matters. The murderer is a young man of 22. We cannot be certain that Kasab cannot be reformed until we have tried. This judgement kills any room previous judgement might had for the reformist theory. Thirdly, the Judge mentions that he will be a security risk to society. Any well-informed legal actor would know it takes years before a death sentence is carried out. This puts any plans to hang Kasab at least ten years away. He is most certainly not anywhere close to the status of the terrorists exchanged during the Kandahar judgement. Kasab is a foot soldier ( he said there were at least 500 more young men like him where he was trained ) whereas Maulana Masood Azhar et al. were and still are the minds of the whole scheme of things in Pakistan. Next, the Judge said - “The depravity of the (26/11 attacks is unspeakable…this man has lost the right to humanitarian benefits.” If the judge was entering into the realm of humanitarian law, he clearly had little idea about it. Even a prisoner of war is given humanitarian benefits. While this statement might have been regarding the death sense that was awarded, it was uncalled for considering this Judgement will play a key role in future terrorism cases. Apart from laying down a bad precedent, it puts a smoke screen on a India that believes in the rule of law. In summary, the judgement lacks depth and maturity I would expect from a trial of such a magnitude.
We all know the law says that a murderer deserves to be killed. However, terrorism is a geo-political crime. It doesn’t work on the same mental lines of everyday crime. The aim of justice is to deliver closure for the victim and prevent such crimes in the future. Hanging or eliminating terrorists has not worked anywhere till now. It will not change anything.
No matter how much the India media underlines the fact that Kasab is Pakistani citizen or the latest failed terrorist bid at Times Square was by a Pakistani man, Pakistan will still get aid from the United States for its military and the Indian Government will continue to search for avenues to engage with the Pakisatanis with little success. No judgement can change these two things. And no matter how much we say that this terrorist from Pakistan, Pakistan will continue to exist and like every country, they have their share of good and bad people. To keep harping upon the fact that these terrorist are Pakistanis, we only fail to see the real issue which is that young men like Kasab hate India enough to give away any life they could have lived.
Kasab gives us an opportunity to try something different. The best example to follow is the al-Munasaha wa al-Islah committee (Advice and Reform) adopted by Saudi Arabia. The program has been specially developed for those involved in terrorist activities and has been largely successful in bringing about reform in their way of thinking. The idea will not be to see if Kasab can be rehabilitated back into mainstream society but into mainstream thinking. This will be worse than the death sentence since it will bring about a significant change in the prisoner.
We’re all on the same page when we want to see him punished, however, I doubt seeing more death will bring closure to the victims and their families.
See John2010’s other blogs:
8 disturbing signs that our elected representatives have forgotten us.
How comrade whistle blower lost his ethical virginity
The PM on legal education: What he said and did not say.
Dear Prudence: … Litigation is really interesting but …?
The 26/11 Judgement fails the maturity test and how we can still salvage justice.
Comments
On the issue of reform, the judge must have had his reasons on the basis of evidence / statements. Maybe not. Lets not rely on the papers and see what he actually said and why. Papers are not good at reporting legal stuff (a leading financial daily had confused paid up and authorized capital. So, I rest my case there)
Kasab may be reformed. Although I am quite open minded, I always fail to understand why mercy should be shown to certain cold-blooded criminals. Kasab has been brain-washed and indoctrinated. Its tough to change such people. Even if that were possible, how can one ensure that he doesn’t act reformed and then repeat history at a more mature age in a more mature way. He is a trained soldier with a firm ideology. I wonder why mercy should be shown or attempt be made to reform him. Having said that, I agree that many mature minds and evolved souls may think I am ignorant and don’t understand sentencing. Well, I don’t. But I do understand the difference between a hot blooded crime, a minor cold blooded act, a premeditated major offense, heinous acts like waging war against the government, and the super-heinous terrorists. But Kasab is a league apart …. he is a soldier (maybe unofficial) who attacked our country’s financial capital and demolished it massively.
He deserves SPECIAL TREATMENT. Despite all my legal training, I would support any officer who guns the %$$^&& scoundrel down.
our courts are not yet so techno-savvy as to make the judgement copies available online. you may get a copy only High Court upwards! for a trial court judgement, you will have to approach the lawyers for getting the copies, if they give it to you.
also, regarding dealing with aspects such as the jackets and things like that, the trial court is looking into other aspects as well and so is the High Court.
about the death penalty, the possibility of letting him reform is as good as absent. the judge has been observing kasab for the past one year and more. all through the trial, he would sit in his corner, observe the reporters sitting, even smile and make demands like any other accused for a lesser offence. he has never shown any remorse except the one time when he asked to be hanged and confessed to the entire conspiracy! this judge has been more than fair where the trial is concerned!
I would love to know the thoughts of people who advocate a different sentence for Kasab.
#1
As far as the failure of the administration is concerned, I haven't come across any blogs or reports that talk about the Court dealing with such things. If you have any source that states the Court looked into these issues, kindly let us know.
The man is still a human being. There is no rule that one cannot smile or make demands considering one is in total isolation from human society. It would've been disturbing if he did not make such demands. All this shows that he wants to go back to his life and the isolation within a prison is not easy. My point being, if you want him to suffer and repent for real, don't hang him!
You cannot imagine what all give power-wielders a kick! But yes, that was a loose comment, and I was generally thinking out loud for some of the posts (and not responding to your blog / post at all).
I completely understand the rationale of the “devil’s advocates” and I myself am one when it comes to the death penalty in certain cases. But as I pointed out, this convict is on a different footing. While one can try to reform a dacoit and keep Valmiki in mind as an example of reform (!!!), I was only expressing the take of my “not so mature mind” on this issue (being very honest here). People have reasons to say that Kasab should not be hanged. Some of them have had more life experiences and their minds are merciful. But I prefer to subscribe to the other school on this case as I feel that (i) trying to reform an indoctrinated mind is “not likely” to be possible, and (ii) even if he can be reformed, he must be hanged to avenge the crime and send the right signal to people who engage / plan to engage in crimes against the nation or the slaughter of innocents. Looking from another angle, I feel that sentencing should be such that the law is effectively backed by sanctions depending on the alarming nature of the crime, as Bentham opined. Kasab’s crime and his affiliations, are very alarming, to say the least. Also, by way of illustration, Kasab is not the same as a political assassin to the extent that he killed too many innocent people mercilessly and randomly (like shooting the kid who gave him water). I would probably advocate the reform approach for someone convicted for killing a key national member but not for Kasab. And I may realize someday that my approach today is immature.
#1 / #4
I want to congratulate you on the way u've interpreted and presented your views on the sentence/punishment. I must say its a well written article. However i beg to differ from your view point and I wud like to explain to you my side/ judge's side/ majority of the Indian population's side of the story..
When you say that we have not been able to deliver a mature sensible judgment i'd like to point it out to you that when 26/11 happened the grudge in the hearts of everyone was suh that nobody even wanted a trial fro him but wanted him to be punished straight. There was not an ounce of doubt about his crime and there was enough evidence. Despite, we, as the way our judicial system works, had to give Kasab an opportunity of a trail..for him to be able to put his side, whatsoever.
That was the first example of how mature we are as a judicial system, as a democratic country. I am sure you would agree that if it would have been the other way round, if it would have been pakistan, there definitely would have been no trial.
Secondly, you've got to punish some terrorists/ criminals in the most harsh way not because they are a complete waste to the society but sometimes it is extremely essential to put forth an example to the world that anybody who messes around with our country and our people will not be forgiven. May be death does'nt mean much to these terrorists but letting them walk away sure will pass on the wrong message.
We have set an example for all the terrorists to be in future, that if u get caught, there is no way you'll be able to walk out of it alive. This should scare them atleast somewhere.
Also, it is very wrong for us to blame the attack on our govt/ lack of security. Agreed that security could have been better, and lesson is to be learnt from this past mistake but, if all the crimes could've been protected by being merely cautious..there would be no thefts, no rapes, no cheating, no fraud and no terrorism. After all we r all humans!!
Also, while hanging Kasab will in no way prevent more Kasabs (who are all indoctrinated brain-washed FANATIC believers), some other groups / disillusioned people contemplating drastic acts will know that death penalty cannot be ruled out. In fact, all this support of Kasab may have already led some ppl to believe that death penalty rarely happens and even if imposed, there is lobbying against it by enlightened Indians. LETS SET THE RECORD STRAIGHT FOR THEM.