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The Unwisdom Of Ajmal Kasab's hanging

By N. Jayaram

24 November, 2012

Wednesday, 21 November 2012 was a difficult day for the many Indians cutting across barriers of class, caste, religion or region, who oppose the death penalty.

With no prior public discussion or even announcement, India's cowardly government put to death Mohammed Ajmal Amir Kasab, [1] a 25-year-old Pakistani, the sole survivor of the 2008 attacks on the western Indian city of Bombay in which nearly 170 people were killed and more than 300 injured. The execution was carried out in secret and by stealth, in a manner unbecoming of a country that preens itself as the world's largest democracy. It is undemocratic countries that execute quietly and at short notice.

The convict's hanging came days after the natural death in Bombay of Bal Thackeray, [2] founding leader of Shiv Sena, which is widely believed to have been behind the killings, over the decades, of thousands of people in the city and other parts of Maharashtra – mostly Muslims and large numbers of South Indians and others. His death drew routine expressions of condolences from official India, which said his death was an “irreparable loss”. [3] , [4] His body was draped in the national flag and given a 21-gun salute.

This speaks of the abject cynicism of Prime Minister Manmohan Singh's government and of a society large parts of which bays for the blood of religious minorities engaged in alleged terrorist activities but looks askance at what ought to be labelled crimes against humanity by Hindu fanatics. None of the prime leaders behind the 1984 anti-Sikh pogrom in New Delhi in which more than 3,000 people were killed have faced trial. It took a little more than 10 years after the 2002 anti-Muslim pogrom in Gujarat where more than 2,000 people were killed, to pass sentence on a few dozen accused including former state minister Maya Kodnani in one case. In passing sentences ranging from life imprisonment shorter terms (Kodnani was handed 28 years), Judge Jyotsna Yagnik observed that capital punishment “undermines human dignity”. Again many prime movers have remained scot free.

Kasab's killing came within hours of India joining Saudi Arabia, Iran, China and other recalcitrant states in opposing a United Nations resolution calling for a moratorium on the death penalty (passed with 110 states supporting and 39 opposing).

The execution also came a day after a two-judge bench of the Supreme Court of India made some confusing pronouncements on the issue: it said – correctly – that the Court's now 32-year-old precept of handing down the death penalty in the “rarest of rare cases” was being differently applied by different judges (in other words, these judges were playing with human lives, albeit the lives of convicted criminals). But bizarrely, it went on to bar the authorities from granting sentence remissions.

Hardly any major Indian politician has criticised the hanging. A man who goes by the name of Anna Hazare (‘Anna' being an assumed or conferred honorific) and who claims to be a Gandhian, reportedly said: “It's taken too long to hang Kasab. He should have been hanged in public (chauraha – street corner). A public hanging of Kasab would have been a lesson for anybody who causes loss of life in our country.” [5]

But it is heartening that sections of the media have criticised it and on online social networks many people from all sections of society and all age groups have expressed dissent.

With Kasab's hanging, India lost a prime witness who would have been valuable in efforts to get Pakistan to book Hafiz Saeed who is believed to be the prime suspect behind the Mumbai terrorist attack. In March 2011, The Hindu, quoting Wikileaks documents, reported that a dossier linking the Jamat-ud-Dawa chief to the Bombay attacks, which had been handed to Pakistan, was “drawn almost entirely from the confession of the surviving guman, Ajmal Amir Kasab, and statements by Fahim Ansari and Sabahuddin.” [6] Ansari and Sabahuddin are implicated in other cases too. “(Former) National Security Adviser M.K. Narayanan described the material in the dossier as ‘Grade-1 evidence',” The Hindu had noted. Why did the Indian authorities execute the most important witness?

Some oft-heard arguments advanced in defence of Kasab's execution are that victims and survivors have rights, that his life in jail costs the tax-payer crores of rupees, that keeping him alive would provoke more terrorist attacks or motivate a hijacking attempt.

It is heartening that at least one Bombay film star, Ashish Chowdhry, stated openly that he was not celebrating Kasab's hanging, even though he had lost his sister and her husband in the attacks. [7] There is a great need in India for forming network of survivors of crime and terrorist attacks opposed to retribution.

Indians need to begin to acknowledge that the right to life is unexceptionable. Howsoever hate-worthy, everyone, including those convicted of terrorist attacks, those who have monumentally failed to respect the right to life of others, have an inalienable claim on the right to life, the most fundamental of rights.

And the same applies to the cost of keeping a convict alive. In the United States, given the high cost of litigation – anti-death penalty activists are well-organised and ensure that appeals and objections are filed to keep the administration occupied for months or years -- keeping a convict alive is cheaper. India need not wait until human life becomes less cheap here in order to choose life-imprisonment over the death sentence. Some bizarre claims had been made in respect of Kasab's life in jail. At least one, that he was kept plied with biriyani, has been exploded. [8] Other rumours regarding cost need to be nailed.

As for hijacking risks, Turkey spared the life of Kurdish separatist leader Abullah Ocalan when it abolished the death penalty as part of its application requirement to join the European Union (all of whose members are abolitionist). There has been no known attempt to get him freed through terrorist acts. Rather, Ocalan is reported to have mellowed in jail and to have called for a peaceful solution to regional problems.

Executing a captured terrorist is the easy way out. Dealing with the causes of terrorism is the difficult task that the Indian state has thus far failed to engage in, be it in Kashmir, the northeastern states or the central Indian tribal belt.

Although many commentaries following Kasab's hanging have said due process was respected, V. Venkatesan writing in Frontline earlier in November has pointed out lacunae in the way the case was handled. [9] Of course, as far as the world was concerned, it was an open and shut case, but courts of law are not expected to go by what the world believes or knows but adhere to strict procedures. The author, writing in The Hindu after the execution, has also pointed out that President Pranab Mukherjee had failed to state in public the reasons for rejecting Kasab's mercy petition. [10]

Quite clearly, the Congress party has used Kasab's hanging to score points vis-à-vis the Bharatiya Janata Party, which has been in the forefront of demands for hanging those convicted of terrorism. Unsurprisingly the BJP's attention has focused more on Kasab and Afzal Guru than on non-Muslim convicts on death row.

That a majority of Indians supports the death penalty is undeniable, just as a majority of the citizens of the United States does. But US surveys have shown that support for the death penalty drops when people are presented with the choice of life term in jail without parole. Such surveys are badly needed in India too.

During the term of India's former ceremonial president, Pratibha Patil, no execution took place. Before she left office, a certain number of commutations were announced, but whether they were the result of the administration waking up to long-neglected files or whether Ms Patil took an anti-death penalty stand is yet to be ascertained.

Until 21 November 2012, there had been no officially declared execution in India for eight years (the Indian state's dastardly extrajudicial killing capacity is a wholly different issue). It can only be hoped that President Mukherjee will show a modicum of backbone in future and look a little more closely at the files put to him for rubber-stamping.

The previous official execution in India, that of Dhananjoy Chatterjee, happened following a campaign mounted by the wife of the then West Bengal state chief minister Buddhadeb Bhattacharjee, a Marxist whose party otherwise waxes eloquent on human rights.

Will the next state-sponsored killing be that of Mohammad Afzal Guru, a Kashmiri man thought to have been wrongly convicted in connection with the December 2001 attack on the Indian parliament? (“Thought to have been” because Nandita Haksar has made a credible case to that effect. [11] ) Will the Indian government and the ruling party hang him too stealthily in order to show that it can stand up to the BJP?

One last word regarding the predicament of those opposed to capital punishment, especially those hammering away at it for years, if not decades: The arguments in favour of abolition and those against are familiar. But what renders difficult the work of those opposing the death penalty is the crucial aspect of human ingenuity in framing objections in novel ways, with novel words, references, similes, metaphors and allusions.

It makes the anti-death penalty campaigners think.

But it is frustrating that some (the word used here is “some”, which, in the absence of a scientific survey can stand for anywhere between a “few” to “many” or “several”) opponents of the death penalty display such zeal in voicing their opinions that all too often they give the impression of not having read or heard the arguments being presented to them. (It takes a few seconds to digest a certain number of sentences and it ought to take several more and in fact minutes to open an Internet link or links cited, especially those running into hundreds or thousands of pages of text. But when pat comes a reply – often repetitive or tangential – it becomes clear that a monologue, a rant, is on, not a dialogue.)

Thos who have the patience to read arguments in favour of the death penalty are honourable exceptions. Their counter-arguments are cordially invited for a democratic dialogue.

[A shorter version of this article appeared in http://www.opendemocracy.net/ under a Creative Commons licence: http://www.opendemocracy.net/openindia/n-jayaram/execution-of-ajmal-kasab-and-indian-authorities%E2%80%99-cowardice]

N. Jayaram is a journalist now based in Bangalore after more than 23 years in East Asia (mainly Hong Kong and Beijing) and 11 years in New Delhi. He was with the Press Trust of India news agency for 15 years and Agence France-Presse for 11 years and is currently engaged in editing and translating for NGOs and academic institutions. He writes a blog: http://walkerjay.wordpress.com/



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