India: Kasab and His Trial

Debating about issues of public importance, some of us very often feel ’if I had handled the issue it wouldn’t have been dealt in this manner or there would not have been such needless delay. The decision would have been swift’ All of us may not have the dexterity which little Jack Horner had in pulling out the plum. There has been a display of this trend whether one interrogates a Home Minister on Pakistan and the terrorists on the electronic media or discussing about the Kasab trial. So far as Kasab is concerned the poll results though cell phones has been swift and for speedy execution of Ajmal Kasab. Human Rights as a way of life is only sixty one years old and values of our Constitutional system has been with us for only fifty nine years. We have not yet understood the Constitutional philosophy Our understanding of the Constitution was put to test quite a few times and the Supreme Court failed the people. The last time it failed was during the Emergency of 1975 in the "ADM Jabalpur" and for the first time an attempt was made in 1973 by the Supreme Court in "Keshavananda" when the institution was put to test when examining the extent to which the Parliament can go and which of the provisions it can amend which are not amenable to the Constitution. In that process the Supreme Court had to select what cannot be amended. They had to, by sheer necessity, choose between the affluent and the poor and the and the interests of the affluent exploitative order, between the hegemony of the Hindu Majority over the sub and subordinate castes and the minorities and the indigenous tribes in this Peninsula for centuries with the rest of the population preserving its own identities.

It should take some more time to understand the Constitution at the lower levels of the judiciary. It is very unfortunate it should take such along time to understand to understand what constitutional morality and culture. The character of the criminal justice system of a society is an index of the cultural levels of members of that society. It is intended to reform by punishment and mould the culture as well. Criminal justice system concerns with the person and not just the citizen and it principally deals with the liberty of the person. From the time a suspect is apprehended and till the time he/she is punished and sentenced it is ensured that entire process is fair and the suspect should not feel the prevalence of prejudice , an attitude of vindictiveness or bias while judging his/her guilt. These are the accepted norms of the criminal justice system in the civilized and democratic governance of all the countries Our Country’s Constitution and our governance is no different. In terms of the law and the Constitution, these are the basic assumptions.

The trial following 26/11 of Kasab from the commencement has been on the wrong note. He is the lone surviving suspect. He was refused to furnish the copies translated in the language known to him. True the language of the Court is Marathi. In a multi lingual nation can a state in the Union insist that the accused belonging to another constituent state should not be furnished copies in the language of the state to which he/she belongs? One cannot be Citizen of India and be denied equality of status as Bal Thackeray would! Kasab wanted his age to be determined by medical examination and there was wide ranging arguments and protest from the Maratha Citizens and not so boisterously by the lawyer population as well. He is entitled to a Defence Lawyer. The Counsel who chose to defend him, by threatening phone calls and other forms of harassment, was not willing to continue. On 1/12 it was reported that there was altercation in the court between the defense lawyer and the presiding Sessions judge and the Court, which was not unusual , revoked Mr. Azmi’s appointment as a defense lawyer and so he opted out of the defense. Immediately after this Mr Azmi’s Assistant was asked to function in place of Azmi. One only hopes these events were not contrived. They were all arguing for his speedy trial to be followed by death sentence. The State found it hard to find a lawyer for the Defence. The Lawyer that was appointed was threatened. In these overtly very adverse circumstances the trial was concluded and posted for judgment. There is a pressure on the judge to pronounce the judgment and after that we all can gather around him and bay for his blood.

The delay would not have happened if the charges are not strung together. Had the Court not done so this delay would not be there is the argument put forth in the public sphere? This argument ignores the fact that a whole chapter provides for framing of charges and the litigious problems of joinder misjoinder of charges and overlooks Article 21 of the Constitution. The purpose of Article 21is not to just strike down or invalidate prosecutions if the Article is breached. It is primarily intended to inculcate a culture of conforming to the procedure established by law. To inculcate a habit of legality whether the compliance or otherwise is questioned in court or not is the purpose . As held in "Maneka (1978)"unfair and unjust laws and procedure do not constitute compliance with Article 21. Confession whether to the police or the Magistrate and at the end the accused makes his statement to the court has its long string of precedents and the judge has his responsibility to the international public opinion and to his Maker if he believes in one. Kasab is not on trial. Justice delayed in certain cases may lead to fair assessment of the case.Mere numbers going to the poll quinquennially is not democracy.

The Constitution and its values are on trial. It is very tragic the way we reacted to the trial. He may not belong to this country. He is not a citizen. But the Constitution comprehends persons who need not be citizens in certain crucial matters. It is a universal juristic principle that procedure is the last defense whether he be a person or citizen. The attempt made by any criminal trial is to reach the conclusion that the court has arrived at proof "beyond reasonable doubt." That is civilizing principle and is the reason why there is a very strong protest against the Death Penalty. The reason is the absence of the residue of doubt. In the Paranoia of Islamic terrorism with strong political cretinism of the Bal Thackeray variety the events of 26/11 will produce irrational reaction bordering on fascism and that cannot be permitted. A war time exclusionary order fell for adjudication in Korematsu vs United States. In his dissenting opinion of Justice Jackson who was worried that the military judgments on which the exclusion order was based were simply beyond the cognizance of the court.: " In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal . They do not pretend to rest on evidence, but on information that often admissible and on assumptions that could not be proved .... Courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that was reasonably necessary from the military point of view" The problems of evidence and judgment that Justice Jackson was speaking about were real but so are the ugly phenomena of war time hysteria and prejudice. The same is the case in Kasab. He underwent a public trial in that the public at large participated in a big way. There was a big electronic media trial. The major part of the evidence can only be on credible information which is very different from credible proof.

We are completing sixty one years of Human Rights Regime. When it came it had only one purpose-to stall the progress of Socialism . Its continuance is to stall the progress of arbitrary and brutal governance of the capitalist liberal and any other system whether they are socialist or any other totalitarian reincarnations.

On Dec 5, 11:56 am,

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