Ajmal Kasav is lucky, he was caught alive in India

Tuesday, December 16, 2008

"I think there should not be a legal process and it’s useless in our country. Such terrorists (Kasav) should be hanged publically in front of Gateway of India. That's our demand", says Shiv Sena MP and party spokesman Sanjay Raut. I wonder what would have happened if the same statement was given by MNS's "Raj Thackeray and his band of goons"*. I feel, the young blood of Bombay [read Mumbai if you are Raj Thackeray or his fan] would have wrecked "Raj and his band of goon's"* neck! Law maker Sajay Raut should have at least remembered laws of his own land before he made such pedantic statement.

Ajmal Amir Kasav is extremely lucky to have been caught alive in a country where fundamental right of "life and liberty" is never denied to anyone. Many people, like Shiv Sena's Sanjay Raut, who feel Kasav should be deprived of legal assistance, are right in some way. Simply because he was caught red handed and the crime he committed is conspicuous. His Pakistani nationality has nothing to do with this denial; terrorist is a terrorist no matter which country he belong to. There are other section of people who say, however heinous his crime may be, he should be given legal assistance at least for the sake upholding the law of the land and morally defeating those who preach hatred and violence. The legal experts say, the dilemma of whether to provide legal assistance to Kasav can be solved by declaring Kasav as "enemy alien" under the Article 22(3), so that he can no longer have the fundamental right of life and liberty.

I feel Kasav's case may have far reaching impact on domestic laws for preventive detention. Today, "exceptional" status of Kasav's case is unquestionable, "the trauma resulting from the terrorist attacks may be used as a justification for undue curtailment of individual rights and liberties. Instead of offering a considered response to the growth of terrorism, a country may resort to questionable methods such as permitting indefinite detention of terror suspects, the use of coercive interrogation techniques, and the denial of the right to fair trial....the most prominent example...is the treatment of the detainees in Guantanamo Bay who were arrested by U.S. authorities in the wake of the 9/11 attacks. It is alleged that they have detained hundreds of suspects for long periods, often without the filing of charges or access to independent judicial remedies. [CJI of India]"

So, the point here is, denying legal access to Kasav may just be a pretext to the misuse of preventive detention laws in the name of terrorism. "In some circles, it is argued that the judiciary places unnecessary curbs on the power of the investigating agencies to tackle terrorism. In India, those who subscribe to this view also demand changes in our criminal and evidence law — such as provisions for longer periods of preventive detention and confessions made before police officials to be made admissible in court. While the ultimate choice in this regard lies with the legislature, we must be careful not to trample upon constitutional principles such as ‘substantive due process.’ This guarantee was read into the conception of ‘personal liberty’ under Article 21 of the Constitution of India by our Supreme Court.** The necessary implication of this is that all governmental action, even in exceptional times, must meet the standards of reasonableness, non-arbitrariness, and non-discrimination [CJI of India, K.G.Balakrishnan]."

Thus, at least for the sake of completing legal procedures under our laws, Kasav should get legal access, so that the perpetrators can be brought to the book soon, so that the souls of many innocents and brave officers who lost their lives may rest in peace.

* Excerpts from widely circulated SMS: Where was Raj Thackeray and his band of goons when South Mumbai was burning? He should have been at the forefront of action trying to save Mumbai from the terrorists! How on earth did he allow north Indians and Indians from some other locations who are in the NSG to dare come and save Mumbai???!!!! Go get the terrorists Raj! Go get 'em!!].

** This idea of ‘substantive due process’ was incorporated through the decision in Maneka Gandhi v. Union of India, AIR 1978 SC 597. In a way this was an answer to Madam Gandhi's misrule during infamous emergency. The law of preventive detention was widely misused. All the opponents of Madam (Indira) Gandhi, like Jayaprakash Narayan, Morarji Desai, Charan Singh, Atal Bihari Vajpayee, were put behind the bars. Madam Gandhi even ensured that her opponent Maneka Gandhi was deprived of her passport. Maneka Gandhi challenged the "reasonableness" of denial of her passport. Supreme Court intervened and upheld Menaka Gandhi's appeal. Ultimately, government had to give passport to Maneka Gandhi. The apex court simply said, why only Maneka Gadhi, out of thousands of others who had applied for passport? That's where the question of "reasonableness" of government's action lies.

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This work by Manjunath Singe is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.5 India License. The views and opinions expressed in this work are strictly those of the author and do not represent his employer's views in anyway.