Supreme Court of India confirms death sentence of Kasab

Observing that the 26/11 Mumbai terrorist attacks had shocked the collective conscience of Indian people, the Supreme Court on 29.08.2012 confirmed the death sentence awarded to the prime accused, Ajmal Kasab, by the trial court for waging war against India.

In its 398-page judgment, a Bench of Justices Aftab Alam and C.K. Prasad said: “This case has the element of conspiracy as no other case. The appellant was part of a conspiracy hatched across the border to wage war against the government of India, and lethal arms and explosives were collected with the intention of waging war against the government of India.”

The Bench rejected Kasab’s argument that he was not given a fair trial. It accepted the argument of senior counsel for Maharashtra Gopal Subramanium that he was given legal assistance right from the stage of trial, and said Kasab’s plea (that he was not given legal assistance from the beginning), by itself, would not vitiate the proceedings.

Writing the judgment, Justice Alam said: “The conspiracy was to launch a murderous attack on Mumbai, regarding it as the financial centre of the country; to kill as many Indians and foreign nationals as possible; to take Indians and foreign nationals… hostages for using them as bargaining chips in regard to the terrorists’ demands; and to try to incite communal strife and insurgency, all with the intent to weaken the country from within. In short, this is a case of terrorist attack from across the border. It has a magnitude of unprecedented enormity on all scales. The conspiracy… was as deep and large as it was vicious. The preparation and training for the execution was as thorough as the execution was ruthless. In terms of loss of life and property, and more importantly in its traumatising effect, this case stands alone, or it is at least the very rarest of rare to come before this court since the birth of the Republic. Therefore, it should also attract the rarest of rare punishments.”

“Absolute certainty”

While confirming the death sentence of Ajmal Kasab, the lone Pakistani gunman captured alive in the Mumbai terror attacks case, the Supreme Court  said ‘absolute certainty’ may not necessarily be a myth or fake in all cases.

Justice C.K. Prasad, who sat on the Bench with Justice Aftab Alam, said: “Hardly [does] one come across a case, where the court does not resort to ‘certain probability’ as a working substitute for proof beyond all reasonable doubt. However, in the case in hand, from the evidence, oral and documentary, reference of which has copiously been made in the judgment by Justice Aftab Alam, make me believe that ‘absolute certainty’ may not necessarily be a myth or fake in all cases and can be a reality.”

Justice Prasad said: “The present case is an exception. Here, I am more than certain that the planning and conspiracy to commit the crime were hatched in Pakistan, the perpetrators… were Pakistani, trained at different centres in that country, and the devastations which took place at various places in Mumbai were executed by the appellant in furtherance thereof.”

Justice Alam said: “We find that the primary and first offence that the appellant and his co-conspirators committed was the offence of waging war against the government of India. It does not matter that the target assigned to the appellant and Abu Ismail was CST Station (according to amicus curiae Raju Ramachandran, counsel for Kasab, no more than a public building), where they killed a large number of people or that they killed many others on Badruddin Tayabji Marg and in Cama Hospital. What matters is that the attack was aimed at India and Indians. It was by foreign nationals. People were killed for no other reason than they were Indians; in the case of foreigners, they were killed because their killing on Indian soil would embarrass India. The conspiracy, in furtherance of which the attack was made, was, inter alia, to hit at India; to hit at its financial centre; to try to give rise to communal tensions and create internal strife and insurgency; to demand that India should withdraw from Kashmir; and to dictate its relations with other countries. It was in furtherance of those objectives that the attack was made, causing the loss of a large number of people and injury to an even greater number of people.”

Nothing could have been more “in like manner and by like means as a foreign enemy would embarrass India.”

Live coverage by media condemned

Slamming the electronic media for its live coverage of the 26/11 terrorist attacks, the Supreme Court said that by doing so the Indian TV channels did not serve the national interest or any social cause.

A Bench of Justices Aftab Alam and C.K. Prasad, while confirming the death sentence on the prime accused, Ajmal Kasab, said the “reckless coverage… gave rise to a situation where, on the one hand, the terrorists were completely hidden from the security forces and they had no means to know their exact positions or even the kind of firearms and explosives they possessed and, on the other, the positions of the security forces, their weapons and all their operational movements were being watched by the collaborators across the border on TV screens and being communicated to the terrorists.”

The Bench said: “Apart from the transcripts, we can take judicial notice of the fact that the terrorists’ attacks at all the places, in the goriest details, were shown live on Indian TV from beginning to end, almost non-stop. All the channels were competing with each other in showing the latest developments on a minute-to-minute basis, including the positions and the movements of the security forces engaged in flushing out the terrorists.

“In these appeals, it is not possible to find out whether the security forces actually suffered any casualty or injuries on account of the way their operations were being displayed on the TV screen. But it is beyond doubt that the way their operations were freely shown made the task of the security forces not only exceedingly difficult but also dangerous and risky.”

Holding that any attempt to justify the conduct of the TV channels by citing the right to freedom of speech and expression would be “totally wrong and unacceptable in such a situation,” the Bench said: “Freedom of expression, like all other freedoms under Article 19, is subject to reasonable restrictions. An action tending to violate another person’s right to life guaranteed under Article 21 or putting the national security in jeopardy can never be justified by taking the plea of freedom of speech and expression.”

“Credibility test”

“Expressing its anguish, the Bench said: “The shots and visuals could have been shown after all the terrorists were neutralised and the security operations were over. But, in that case, the TV programmes would not have had the same shrill, scintillating and chilling effect and would not have shot up the TRP ratings of the channels. It must, therefore, be held that by covering live the terrorists’ attack on Mumbai in the way it was done, the Indian TV channels were not serving any national interest or social cause. On the contrary, they were acting in their own commercial interests, putting the national security in jeopardy. It is in such extreme cases that the credibility of an institution is tested. The coverage of the Mumbai terror attack by the mainstream electronic media has done much harm to the argument that any regulatory mechanism for the media must come only from within.”