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29 Nov 2012

The execution of Ajmal Amer Kasab has been hailed as one that gave a sense of justice and closure to the victims of the 26/11 Mumbai attack. But far from that, Kasab’s hanging should set alarm bells ringing for every citizen of this country because it shows that procedural fairness is no longer a vital element of our system of justice. The executive can now choose who to kill and turn a blind eye to the rule of law.

PUDR believes that Kasab’s hanging is a violation of procedure established by law. The secrecy and speed of Kasab’s execution after the rejection of his mercy petition raises serious issues. 

To begin with, by sending a one-line mercy petition in September, the jail authorities made the serious omission of not providing legal assistance to Kasab. The issue here is not one of Kasab’s guilt or the heinousness of his crime. Our judicial system promises equality under the law and not providing legal assistance amounts to the failure of the executive and judiciary to practice democratic principles laid down in the Constitution.

Second, and more importantly, it must be noted that in a number of cases, courts have intervened after the rejection of mercy petitions and executions have been stayed.

For instance, consider the following mercy petitions rejected by former President Pratibha Patil. After the mercy petitions of Santhan, Murugan and Paririvalan were rejected, the Madras High Court intervened and stayed their executions. Similarly, the Supreme Court intervened on a petition filed by the wife of Bhullar, whose mercy petition had been rejected by Patil, and stayed the execution. Again, after the mercy petition of Mahendra Nath Das was rejected by Patil, the Gauhati High Court too dismissed a petition against this rejection. However, the Supreme Court intervened and Das’s execution was put on hold. In fact, in the case of two young men,  Vijayavardhana Rao and Chalapati Rao slated for execution in December 1996, a subsequent mercy petition resulted in stay of execution and commutation. 

So, clearly, Kasab’s speedy and secret execution was a means to deny him any legal rights. And would a judicial review have resulted in any relief for him? We will never know because his hanging is a symptom of the failure of the rule of law and of blatant procedural unfairness. Arbitrariness, as evidenced in Kasab’s case, shows that the executive can function free from the requirements of the law and can “pick and choose” who it wishes to kill. This endangers the right to life of every citizen of the country. 

The hanging of a human being brings to the fore moral questions about whether retribution and revenge are values which we wish to encourage and legitimize. But, as significantly, Kasab’s hanging proves that when we condone, even celebrate, arbitrary actions by the executive and forgo judicial procedure, we surrender a little more of our freedoms and create a police state.

PUDR condemns the unjust hanging of Kasab and demands an enquiry into the failure of the judiciary and executive to maintain procedural fairness. Further, since in a democratic republic clemency powers should be exercised on behalf of the sovereign people, we demand the formulation of transparent and equitable norms for the processing of mercy petitions.

Paramjeet Singh and Preeti Chauhan


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