On trying Kasab

The best prosecution and the best defence

Mohammad Ajmal Amir Iman is a terrorist who was caught red-handed by the police. He is very likely a trained covert operative and is likely to exploit the Indian media and through it, the legal process, to his advantage. In time, a coterie of jihadi apologists might rise to obfuscate his crime. Politicians might use his case as a political football.

Yet, none of these is good enough a reason to deny him proper legal representation and a fair trial. Quite the contrary—this case deserves an exemplary prosecution and an exemplary defence. And should he be found guilty after an exemplary judicial process, he deserves exemplary punishment. (See Salil Tripathi’s piece).

America’s greatest mistake after 9/11 was Guantanamo Bay. India should not make the same mistake.

Update: Ram Jethmalani says lawyers cannot refuse to take the case, and, “a person who thinks that by doing these actions, he is going to heaven he should be denied the chance to go to heaven, he should remain the rest of life in a jail in India.”

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34 Responses to On trying Kasab

  1. sai 12th December 2008 at 16:57 #

    I completely agree. And I congratulate you on having the courage to say it, though it probably would be very unpopular.

  2. pop corn 12th December 2008 at 17:08 #

    No doubt that Kasab should be put through a fair trial. If not for anything else atleast to ensure that no one uses his name to further their political interest.
    Guantanamo bay was not the only mistake of America post 9/11.
    The war in Iraq on the misplaced intelligence of WMD stock piles in Iraq.
    Vicious hate crime against Sicks in America after 9/11.
    The curbing of civil liberties inside America through Patriot Act.
    These are some of the blunders of America post 9/11 that India should not emulate.
    America’s ‘war on terror’ has produced far more terrorism in the world than there had been earlier.

  3. Ajay 12th December 2008 at 17:46 #

    Yes, it’ll be a great mistake if any criminal, no matter what his crime, is not legally defended by a competent lawyer. Laws are written with deep thought and a cool mind. They shouldn’t be disregarded in moments of anger and anguish.

  4. Sud 12th December 2008 at 19:08 #

    100% agree. Fair trial, nay exemplary trial, prosecution, defence and sentencing (alrite, if found guilty, which, since ours ain’t kangaroo courts, isn’t 100% certain).

    What worries me though is that due punishment may not be carried out. The Afzal case is a potent reminder.

  5. Rishi 12th December 2008 at 19:25 #

    I agree with what you say in principle. However, in our country, a good defense lawyer for Kasav will get him out on bail in a short span of time. Then what do we do. Wait for him to flee?

  6. sai 12th December 2008 at 19:29 #

    There is one problem: What if Kasab defiantly confesses? That poses a dilemma for the defence lawyer, but even so, the answer is not to deny him representation.

    The author (Salil) seems to think its the duty of the defence lawyer to persuade his client to completely deny his role , however weak his defence. I have very limited understanding of law, but this perception appears ridiculous to me. What does he mean by “defiantly confess”? The lawyer himself would have to perusade him to come clean and then try to make the best out of what is really an unsalvagable situation.

  7. Salil 12th December 2008 at 22:54 #

    Sai, What I meant by “defiantly confess” is using the trial to mock justice. “OK, I did it. Try me. I won’t get justice here,” type of defense. The lawyer doesn’t play a role in tutoring him either way. A lawyer role is to mount a competent defense, not judge the case, and build the best case. His role is not to lie either. He is an officer of the court. Godse defiantly telling the courts in India how he should be treated, and why he killed Gandhi, is one example of “defiantly confess”.

    Salil

  8. Chandra 13th December 2008 at 00:00 #

    Who is Kasab? And what was he doing?

    Is Kasab an Bharatiya citizen? Does our constitution covers the entire globe, now? Was Kasab waging war against the nation or was he committing a civil offense? So if Pakiland soldiers are captured during another Kargil like intrusion – an act of war, would they be provided with a lawyer and passed through the utterly disgraceful judiciary and political system that we have? Apparently all Pakiland soliders have to do is change clothes – from military uniform to jeans and a T-shirt to get away from military justice?

    If Kasab is trained, armed, funded by Paki-army, who came into the country as commando raid and killed innocent civilians while taking directions from Paki-army personal, why is he treated as a civilian and charge for murder (sic) instead of being charged for waging war against the nation?

    I am afraid Sri Salil and others are drawing the wrong lessons from US torture cases.

  9. sai 13th December 2008 at 00:49 #

    @Chandra
    Are you then suggesting that Kasav be treated as a POW with the attendant geneva conventions and all that?

  10. Sanjay 13th December 2008 at 03:54 #

    Guantanamo Bay wasn’t America’s mistake. Ignoring the Left-wing and European extra-territorialist Fifth Columnists in the US was America’s greatest mistake, since they didn’t consider that the Fifth Column would eagerly make hay out of Guantanamo. But that’s what Lefties do, of course.

    Just like Arundhati Roy, who has seen fit to remind the world that these Mumbai attacks are all the result of Hindu Evil (TM):

    link

    Oh, of course. How could it be otherwise? :P

  11. Sanjay 13th December 2008 at 06:37 #

    Btw, why does this forum turn every emoticon into a smiley?

    I typed “: P” and it turned into a :)

    Somebody should fix that

  12. Sud 13th December 2008 at 06:52 #

    The ISI will no doubt that kasab be ‘encountered’. A simple false flag approach might find willing accomplices in an angry police department.

    Ironically, kasab guned down the MH encounter specialist Vijay Salaskar.

    Best way out is to have kasab’s case drag yrs in a sessions court and the kasab turd be put in solitary confinement – locked into a drawer (like they have in the morgue) between meals. That would be the most humane thing India could do. Deter other would be napaks from undertaking such missions. Publicising the dead jihadists’ hideous post mortem faces was a right step. Would pour water on mullah claims that after death the martyr’s faces glow and BS like that that kasab and co bought into.

    Aah, ok. am angry is all. Fair trial hee sahi, get it done with FAST!

  13. Gypsy 13th December 2008 at 07:34 #

    Exemplary prosecution, exemplary defence for Kasab is fine. Afzal Guru also got the same. I have couple of questions:

    1. What outcome would one expect after the exemplary legal process?

    2. Knowing the stand taken by the present government in all such cases including that of Afzal Guru, the Teestas, Arundhatis abounding in the national and international media, what hope can the families of victims of this carnage have for the due course of justice to take place?

  14. Nitin 13th December 2008 at 07:45 #

    Gypsy,

    1. The objective is the outcome. I think the guy is guilty and deserves the death penalty (because that’s the highest penalty in our statutes). But my opinion is an opinion…what the courts decide should be good enough for all of us. And it’s the president’s and the government’s decision on what they want to do with the appeal.

    2. You mean not putting the guy on trial with proper legal representation will somehow deliver justice to the victims of the carnage? And who, according to you are victims? Just the families of the people who were killed or injured, or each and every citizen of India?

  15. Nitin 13th December 2008 at 07:55 #

    Chandra,

    India has jurisdiction on crimes committed in India. Whether a German picks your pocket or a Pakistani guns down 20 people, the legal framework is the same.

    You are right in saying that our laws, and international laws relating to war and prisoners of war, will need to change to account for international terrorism. Pakistan has been cleverly exploiting this since 1947. But it’s not Pakistan’s fault that India engages in absurd debates on anti-terror laws despite facing irregular warfare for six decades.

    All this is still no excuse for not trying the accused under current laws. I’m pretty sure it is possible to bring this guy to justice under existing laws. We should put our minds to it. It’s actually about political resolve.

  16. Oldtimer 13th December 2008 at 13:13 #

    Exemplary speed is another imperative. A specially constituted court — they call it ‘fast-track’, don’t they? — should try him and pronounce verdict

  17. Nitin 13th December 2008 at 15:28 #

    Oldtimer,

    Exemplary speed, indeed.

  18. Rishi 13th December 2008 at 18:13 #

    Oldtimer,
    Wasn’t it a fast track court that took 11 years to give a verdict in another Bombay blast case?

  19. Kedar 13th December 2008 at 21:18 #

    Its interesting that we dont want to give the media, Jihadi apologists, politicians, etc etc… a chance to play their games by letting a known terrorist have a proper legal representation and thereby letting them play their games.

    To let this guy have a proper legal representation or not is a question that arises AFTER we take care of these vermins within our society.

  20. Niranjan 13th December 2008 at 21:40 #

    Let’s remember that even the Israelis gave Eichmann a trial in Jerusalem.

  21. Gypsy 13th December 2008 at 22:17 #

    Sorry Nitin, I lost the string for a while.

    My point is, India MUST enact a specially law to try terrorists in fast track courts with special provision for quick execution of the sentence. Without that, the cases will go on for ever. People forget. Political expediency overrules all considerations.

    As for the “families of the killed”, look what happened in New Delhi today. Out of 560+ MPs, only TEN MPs attended the anniversary. In just seven years people forget and it is the suffering of the lifetime for the family.

    For me, what happened in Mumbai was an act of war. It is for the national leadership to view it in its proper perspective and take such appropriate measures as to ensure that the nation is not ravaged again either from the forces from abroad or the “home-grown” terrorists.

  22. sai 13th December 2008 at 23:36 #

    @Salil

    I missed your post. Thanks for clarifying. Sorry that I misunderstood you.

  23. Nanda Kishore 14th December 2008 at 11:04 #

    Guantanamo Bay wasn’t America’s mistake. Ignoring the Left-wing and European extra-territorialist Fifth Columnists in the US was America’s greatest mistake…

    Really? In the neocon world that may be the gospel (not saying you are one), but I can’t see any evidence that is the case.

    Off topic, there is no need to link our terrorism issues with America’s own. I agree with Arundhati Roy on one thing, the more the US meddles in Pakistan, the worse things are likely to be. Just my opinion.

  24. Nanda Kishore 14th December 2008 at 11:07 #

    Oh, and agree 100% with the post. Representation must not be token and the public must be prepared for any outcome (I would be quite upset too if the perp got away).

  25. Chandra 14th December 2008 at 13:03 #

    @Sai,

    My point is we can’t have it both ways. We can’t say it’s war and then treat the warrior as a murder. But Pakiland won’t accept Kasab as its warrior – so he can’t be given a POW status either (Pakiland won’t even accept Kargil war regulars). Also the burden of proof in civil courts is high whereas military courts don’t have such high burden.

    As far as I know, US has been struggleing with this issue, seven years after Sept 11 – hence the Guantanamo crisis that Bush had and continues to have his hands. It is easy for messiah Obama to talk – that he would close Guantanamo. There is no easy way out.

    It seems there needs to be a quasi-military, quasi-civil laws for all nations fighting Islamic terror/non traditional war (emanating from foreign nations). Unfortunately, US hasn’t taken the lead to set the global standards yet.

    Any case, hoping Nitin is right, if Kasab and Pakiland plays their cards right, he could be a free man or just sit in some jail without completing his trail (with the ultra-lefties doing his bidding in the ever conducive media). Neither are good outcomes.

  26. Nagarajan Sivakumar 14th December 2008 at 21:04 #

    @Chandra,
    WELL SAID !! Atleast one person here is willing to see the complexities behind dealing with terrorists – it is not as simple as getting on your moral high horse and demanding an “exemplary trial” – what ever that is supposed to mean.

    In a civilian court, the standard for proving a person’s guilt is definitely higher than in say a military court. This is exactly what confronted the US Government post 9/11 – they knew that many of these people if tried in a civilian court would ultimately be declared innocent and go away scot-free and return to do more terrroist acts against the US.

    The second issue that confronted the Bush Govt was that they did not know which of the detainees were really dangerous terrorists and which ones were sidekicks who were not equally dangerous – they have now transferred back hundreds of prisioners to their home countries – no one knows what exactly these countries have done.

    Closing Gitmo is no piece of cake and there is already talk here of Obama going slow on this issue. It was easy to do Bush bashing all this while and blame him for every thing.

    As they say, truth is never always black and white – there are shades of gray too.

    As far as Kasab goes, if the Indian Government does decide to try him using a civilian court just like they did Afzal Guru, they would have now solidly established that only civilian courts are going to try known terrorists – this is a HUGE AND TREMENDOUS advantage for terrorists – they now know that if they can get a good defense lawyer, they have the possibility of getting out free – that most definitely would not be the case in a military tribunal.

  27. balajee 15th December 2008 at 14:26 #

    @Nagarajan Sivakumar
    While the fact that trials never come to an end and the guilty stay unpunished as of yet, is definitely a problem with the Judicial system that needs looking into, that by no means justifies that we can simply hang men after branding them terrorists. If that were the norm, some of the politicians in my own state of Tamil Nadu, by now, would have been sent to the gallows after the then government, to settle political scores, unreasonably charged them with aiding and abetting terrorists.

    And are you sure that it isn’t you who’s on the high horse, what with your feigned indignation and outrage at the reasonable claim that this monster, irrespective of what he did, ought to be given a fair trial?

  28. RM 15th December 2008 at 15:00 #

    http://www.dnaindia.com/report.asp?newsid=1213766

    With certain lawyer bodies declining to take up the case of Mohammad Ajmal Amir, the lone militant arrested in the Mumbai terror attacks, eminent lawyer Ram Jethmalani maintained on Sunday that no lawyer has the right to say he will not defend an accused.

    “There is the express rule of the Bar Council of India that no lawyer shall refuse to defend a person on the grounds that it will make him unpopular,” Jethmalani said.

    “That is something that should never worry a lawyer. No lawyer worth the name should even talk about this kind of a thing,” Jethmalani said and asked the legal community not to worry about peer criticism while taking up such cases.

  29. Pankaj 15th December 2008 at 15:05 #

    The jihadi was a fidayeen, on a suicide mission – neither the now trapped alive jihadi, nor his handlers in pakistan, had visualized this present situation. It was only the insane courage of the DB Marg police cops which led to one jihadi being caught alive.

    People should not be surprised to know that the jihadi himself is in a state of shock of him being alive. Everything down to the last line of the script was visualized except the trapped alive jihadi by the operational command of pakistan. It has blown their cover and exposed them.

    Otherwise, had all ten been killed – they would have applied a different narrative which would have activated the left-islamic combine within India as well.

    Presently, it is a grey zone. The jihadi is not a soldier of an international state. He is not a candidate on which the geneva conventions rules apply. The criminal laws of the country as well are inadequate as well to try such new international jihadis, and the laws that mandates military courts or tribunals to try such jihadis don’t presently exist in India. So what do we do.

    One answer can be to get all the information one can from the jihadi and then kill him.

  30. Sarvesh 15th December 2008 at 19:28 #

    Ram Jethmalani says lawyers cannot refuse to take the case, and, “a person who thinks that by doing these actions, he is going to heaven he should be denied the chance to go to heaven, he should remain the rest of life in a jail in India.”

    while I don’t seriousely disagree with this, here is a classical quote giving another perspective:

    “I believe that forgiving terrorists is GOD’s function. Our job is simply to arrange the meeting.” – General Norman Schwartzkof

  31. Nagarajan Sivakumar 16th December 2008 at 09:47 #

    balajee,
    Ummm.. i am from TN too.. and i would readily admit that people like Karunanidhi and VaiKo are KNOWN terrorist supporters… just like MGR and Indira Gandhi were before them…

    and please calm down… you are down right delirious.. can you point to a sentence in my post where i say Kasab should be hanged to death without a trial ?

    The question is what kind of a trial ? civilian or a military tribunal ? if your reading comprehension skills are poor, dont blame or distort what i said.

    I am furious at this bastard.. i am not feigning any thing here.. I also detailed in length why condemning Gitmo is easy without understanding the incredible difficulties faced post 9/11.

    Please re-read my post slowly and calmly before embarrassing yourself with ass clown arguments.

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