This article is written by Hiral Gupta from Amity Law School, Noida

Edited and Published by Risha Fatema

Table of Contents

INTRODUCTION

Ajmal Kasab v State of Maharashtra also famously known as the 26/11 attack or the Mumbai attack which took place on 26th November, 2008 by members of a terrorist organisation of Pakistan called Lashkar-e-taiba Fidayeen carried bombing attacks lasting for four days. The terrorists attacked major areas of Mumbai especially Chatrapati Shivaji Maharaj Terminus Railway station then in the Leopold café, and in the Taj Hotel, Oberoi Trident hotel and the Nariman House, Cama Hospital. In this attack a total of 175 people were killed including 29 foreign nationals. More than 300 people were severely injured.

The terrorist group entered India on a hijacked ship which started from Karachi, Pakistan and as soon as they entered Mumbai, they killed the owner of the vessel. These terrorists infiltrated into Mumbai through Arabian sea. After reaching Mumbai the terrorists divided themselves into groups and started the attacks.

FACTS OF THE CASE

Ajmal Kasab was a key perpetrator of Lashkar-e-Taiba, Islamic terrorist organisation funded by Pakistan. Ajmal Kasab along with Nine other Lashkar-e-Taiba terrorist, attacked on Mumbai, the commercial hub of India.

Mumbai attack in 2008 included a series of heinous and horrendous attacks in major places of Mumbai especially CST railway station Mumbai, the Leopold café, the Taj hotel, Oberoi trident hotel and the Nariman House. This resulted in multiple deaths, many were left severely injured, properties left damaged, people suffered from Post Traumatic Stress Disorder.

After 3 days of relentless efforts of Indian Police and soldiers to locate and track down the terrorist squad, Ajmal Kasab was the sole terrorist who was captured alive and his 9 partners were shot dead in the encounter.

After the arrest of Ajmal Kasab, the prosecution on 25th February 2009, files a 100 pages charge sheet against him.
Most of the advocates denied to take the case of Ajmal Kasab due to ethical issues. After the denial of several advocates Anjali Waghmare, eventually decided to represent Ajmal Kasab.

The first hearing of the case was to be held on 15th April 2009 but due to conflict of interest, Anjali Waghmare, who was representing Kasab was substituted by Abbas Kazmi. The trial court awarded the death sentence to Ajmal Kasab which was upheld by the Bombay High Court on 21st February 2011.

On 30th July 2011, Kasab challenged the death sentence verdict which was awarded by the lower courts in the Supreme Court of India. The Supreme Court subsequently appointed senior lawyer Raju Ramchandran as amicus curae to examine all the evidences.
Ajmal Kasab who was actively involved in the attack was the only terrorist arrested alive. Rest of the terrorists were shot dead in the encounter.

A conspiracy of attacking was devised to initiate a war against the Government of India, conspiracies to commit Murder was hatched in Pakistan. These attacks were planned and developed during the period of December 2007 to November 2008.

The terrorists were supplied with arms and ammunitions from Pakistan in order to Attack on India. The terrorists were told before the attack that “It is a right for Jihad and if they died in this mission, they will get the place in heaven”. They were also told that Kashmir can only be acquired by weakening the Government of India from inside. This can only be done by attacking the metropolitan cities of India.

RELEVANT LAWS

Section 34 – Acts done by several persons in furtherance of common intention,
Section 109 – Punishment of abetment if the act abetted is committed in consequences and where no express provision is made for its punishment,
Section 120B – Punishment of criminal conspiracy,
Section 121 – Waging, or attempting to wage war, or abetting waging of war, against the Government of India,
Section 121A – Conspiracy to commit offenses punishable by section 121,
Section 122 – Collecting arms, etc., with intention of waging war against the Government of India,
Section 123 – Concealing with intent to facilitate design to wage war,
Section 124 – Assaulting president, governor, etc., with intent to compel or restrain the exercise of any lawful power,
Section 124A – Sedition,
Section 125 – Waging war against any Asiatic Power in alliance with the Government of India,
Section 126 – Committing depredation on territories of Power at peace with the Government of India,
Section 302 – Punishment for murder,
Section 307 – Attempt to murder,
Section 324 – Voluntarily causing hurt by dangerous weapons or means,
Section 341 – Punishment for wrongful restraint,
Section 342 – Punishment for wrongful confinement,
Section 347 – Wrongful confinement to extort property, or constraint to an illegal act,
Section 364 – Kidnapping or abducting to murder
Arms Act,1959 3.
Unlawful Activities (Prevention) Act, 1967
Explosives Act, 1884
Explosive Substances Act, 1908
Passport Act, 1920
Prevention of Damage to Public Property Act, 1984
Railways Act, 1989
Customs Act, 1962
Foreignness Act, 1946

ISSUES

Whether Kasab got free and fair trial before he got convicted?
Whether the death sentence awarded to Kasab was equitable and justified?

APPELANT’S CONTENTION

To begin with, the appellant’s refusal to accept the services of an Indian counsel and his demand for a lawyer from his homeland can only be viewed as his own autonomous decision. In those circumstances, and especially when Pakistan denied that the appellant was even a citizen of Pakistan, the demand for a Pakistani lawyer may have been implausible, if not foolish, but the man did not need any guidance from an Indian court or authority regarding his rights under the Indian Constitution. His acts were completely independent, and he considered himself as a “patriotic” Pakistani at war with this country.

Finally, on March 23, 2009, the appellant appears to have concluded that neither Pakistan nor any other country would be able to help and provide assistance. He was immediately given a pair of solicitors. Mr. Raju Ramachandran claims that the appellant’s confession was pressured and made to help the prosecution’s case rather than willingly.

The language, tone, and tenor of the confession alone showed that it was not voluntary. Numerous indicators in the confession itself revealed that it was delivered at the behest of the investigating agency. Mr. Ramachandran said that the confession was overly long and full of information that were completely unnecessary and out of place since they had no impact on the accusations for which the confession was delivered.

He went on to say that in the confessional statement, the appellant appears to have a remarkable memory, naming a large number of people along with their aliases, home towns, street names, and names given to them by the Jihadi group as well as names given to them by Hindu groups in preparation for the Mumbai attack.

While speaking about his travels to the multiple Lashkar-e-Taiba offices situated in various areas, the appellant would mention not only the mode of conveyance utilized but also the length of time it took to move from one site to the next. He would first introduce himself to the person he met outside the workplace before introducing himself to the person he met inside.

CONTENTION OF THE RESPONDENT

The objective of the criminal justice system is to dig out the truth, and not to protect and safeguard the accused from the consequences of his action. The trial must be handled by defence counsel utilising evidence properly acquired during the investigation.

Respondent Contention

The following were the respondent’s arguments:
Kasab committed the heinous act of declaring war on the state. He had illegally entered India, armed with bombs and rifles, and participated in a terrorist attack that killed 166 people and injured 308 more.

Kasab had committed murder. During the attack, he killed many people, including a police officer and a doctor.
Kasab committed attempted murder. During the attack, he made numerous additional murder attempts.
The death penalty was the only appropriate retaliation for Kasab’s acts. Kasab has shown no sorrow for his actions, despite the fact that the assaults have caused considerable loss of life and property.

Respondent’s Arguments

To support its claims, the respondent submitted the following arguments:
Declaring war on the state: The responder said Kasab’s actions constituted to declaring war on the state. Armed with bombs and weapons, he illegally entered India and performed a terrorist attack that killed and injured innocent people. According to the response, Kasab’s actions were aimed to undermine the administration and frighten the public.

Murder: The respondent accused Kasab of murder in connection with the attack’s several fatalities. He had killed several individuals, including a doctor and a police officer. The response stated that Kasab was responsible for these people’s deaths since Kasab’s actions had resulted to their demise.

Attempt to murder: According to the respondent, Kasab attempted to kill a number of other people during the attack, thereby committing this offence. He had fired at some of them in an attempt to kill them. The respondent argued that Kasab was responsible for these people’s attempted murders since his actions had the intent to kill them.

Death sentence: The respondent argued that Kasab’s crimes only justified the death punishment. Kasab showed no remorse for his actions, despite the fact that the assaults resulted in enormous loss of life and property. The respondent maintained that the death sentence was necessary to protect the public from Kasab and dissuade potential terrorists.

JUDGEMENT

The appellant, Mohammed Ajmal Mohammad Amir Kasab Abu Mujahid (hereinafter referred to as ‘the appellant’ or ‘Kasab’), a Pakistani national, has received five death sentences and an equal number of life sentences for committing multiple heinous crimes in this country.

Some of the major charges levelled against him included: conspiracy to wage war against the Government of India; collecting arms with the intent of waging war against the Government of India; waging and abetting the waging of war against the Government of India; commission of terrorist acts; criminal conspiracy to commit murder; criminal conspiracy, common intention, and abetment to commit murder; committing murder of a number of people; attempt to murder with common intention; Criminal conspiracy and aiding and abetting; abduction for murder; robbery/dacoity with intent to inflict death or serious bodily harm; and producing explosions, all of which are punished under the Explosive Substances Act of 1908.

He was found guilty on all of these offences, as well as many more, and received the death penalty on five counts, life in prison on five other counts, and a number of somewhat shorter jail terms for the other offences.

The following legal provisions were cited in the judgement:

The act of challenging the sovereignty of the nation is outlined in Section 121 of the Indian Penal Code, which the court determined Kasab had violated by entering India illicitly and orchestrating the terror attack.

The charge of murder, as stated in Section 302 of the Indian Penal Code, found Kasab guilty due to the significant fatalities resulting from his actions.
The attempt to commit murder, as per Section 307 of the Indian Penal Code, was applied to Kasab for the numerous attempted fatalities during the attack.
Section 16 of the Unlawful Activities (Prevention) Act of 1967 prohibits association with terrorist organizations, a provision under which the court identified Kasab’s affiliation with Lashkar-e-Taiba.

Section 30 of the same act delineates conspiracy to execute a terrorist act, and Kasab was deemed responsible for planning the Mumbai attacks in collaboration with other Lashkar-e-Taiba members.

Furthermore, the court referenced several constitutional articles in its decision:

Article 21 of the Indian Constitution emphasizes the right to life and personal liberty, yet in rare instances, such as Kasab’s, the death penalty is deemed appropriate.
Article 14 ensures equal treatment under the law, and the court underscored the need for consistent application of the death penalty.
Article 22 protects an individual’s rights during legal proceedings, and the court affirmed that Kasab’s rights were upheld throughout.

The Supreme Court concluded that given Kasab’s undeniable involvement in severe crimes, the death penalty was warranted for public safety and to deter future terrorist activities.

This landmark judgment by the Supreme Court in the Kasab case marks the first instance where the death penalty was confirmed for a terrorist offense, potentially shaping the trajectory of future terrorism-related trials in India.

Ajmal Kasab absolutely deserved the death sentence for the offences under Section 120-B r/w Section 302 of the Indian Penal Code, along with Section 121 of the Indian Penal Code and Section 16 of the Unlawful Activities (Prevention)Act, 1967. Ajmal Kasab exhibited exceptional cruelty, the manner in which he committed the countless murders was inhuman. The confessional statement confirms the extreme brutality in which Kasab killed the navigator Solanki. Kasab willingly joined the terrorist militant organization and joined the conspiracy. The landmark judgment of Bachan Singh v. State of Punjab is a supporting case in which the court laid down guideline when death penalty should be appropriate and this case aligns with those principles.

Ajmal Kasab’s council argued about the age of the accused but the acts of Ajmal Kasab, his mental age clearly overrides his physical age. The severity of crimes he committed absolutely surpassed all the considerations of youthfulness. Assuming Ajmal Kasab was coerced to join the militant organization, but that does not justify in giving him a lesser punishment. There is absolutely no potential for rehabilitation for a person who killed children, women, the elderly and police officers in mass and in addition he never showed any expression of repentance, shame or remorse.

He in advance was fully aware about the repercussions of his acts and he wanted to be a part of the conspiracy at his own will and was not a part of it due to any sort of pressure, force, intoxication etc. He engaged in mindless killing of hundreds of innocent people. Age should not be a determining factor in awarding less punishment than deserved. Ajmal Kasab attacked the Government of India and the sovereignty of India and for acts like that severest punishment is completely justified.

CONCLUSION

Our nation requires specific legislation aimed at swiftly addressing terrorism with a focus on punishing perpetrators. This legislation should also provide support for the families of victims and public officials engaged in counterterrorism efforts. The discretionary powers of the President and Governors regarding clemency should be clearly defined to avoid delays, especially when dealing with terrorist acts.

Ajmal Kasab’s voluntary involvement with Let, as indicated by his confession, and his maturity level being beyond his years, were considered in his sentencing, which was based on the severity of his crimes. It’s essential to maintain a balance between the rights of the accused and the victims while trusting our judicial system’s ability to deliver justice to individuals like Ajmal Kasab. Lastly, we must acknowledge the courageous law enforcement officers and NSG commandos who sacrificed their lives to protect the nation and uphold its constitution.