India Reaffirms Death Penalty

Ranjit Devraj

NEW DELHI, Nov 22 (IPS)  – One day after voting against a United Nations General Assembly draft resolution seeking to abolish the death penalty, India executed Pakistani national Mohammad Ajmal Kasab for the November 2008 terror rampage in Mumbai that left 166 people dead. Kasab was executed Wednesday morning by hanging – the approved method for carrying out the death penalty in India. He was the sole survivor of a ten-man squad of armed militants who landed in Mumbai harbour on a terror mission after sailing out from the Pakistani port city of Karachi.

While the other nine were killed in firefights with Indian security forces, Kasab was pinned down and disarmed by policemen.

After pictures of him – snapped as he attacked Mumbai’s main railway station – were circulated around the world, he emerged as the face of the massacre, and a test of India’s capital punishment policy.

The country’s Supreme Court had, in 1983, ruled that the death penalty should be imposed only in “the rarest of rare cases.” Kasab was the first person to be executed since 2004.

Speaking to members of the press on Wednesday India’s foreign minister Salman Khurshid said Kasab’s was “certainly a rarest of the rare case”. He described the execution as a “sober, sombre duty that had to be carried out”.

In India, capital crimes, or crimes that merit the death sentence, include murder, gang robbery involving murder, and terrorist activities. Hanging sentences are carried out only after appeals are duly heard in higher courts and clemency denied by the government.

After Kasab’s 2010 death sentence was upheld by India’s Supreme Court, the case went before President Pranab Mukherjee who, following advice from the cabinet as is customary, denied clemency on Nov. 5, clearing the way for Wednesday’s execution.

On Tuesday, India had joined 39 other countries in voting against the General Assembly draft calling for a non-binding moratorium on executions, after insisting that every country had the sovereign right to frame its own legal system.

The draft resolution was adopted by the U.N. Third Committee on social and humanitarian issues with an overwhelming 110 countries voting in favour and 36 abstaining.

“It is unfortunate that India has voted against the moratorium, since this is a country that is capable of promoting progressive and liberal ideas in global forums,” Maja Daruwala, a leading campaigner against the death penalty, told IPS.

Daruwala, executive director of the Commonwealth Human Rights Initiative, a New Delhi-based international non-governmental organisation, said, “India should be leading the movement for the realisation of a compassionate global society.”

Considering that several older death row cases are still under consideration for grant of clemency, Kasab’s case appears to have been disposed of quickly.

There are, according to the home ministry, 14 mercy petition cases now pending before the government, including that of Mohammed Afzal Guru, condemned for his role in the December 2001 terror attack on India’s parliament building.

Guru’s lawyer, Colin Gonsalves, says Kasab’s relatively quick hanging may have an effect on other pending death row cases in India.

“There should not be any death sentence at all, but Kasab’s was an extreme case,” Gonsalves, founder of the New Delhi-based Human Rights Law Network (HRLN) told IPS.

“Kasab’s case is a significant setback for the move towards complete abolition of the death penalty in India,” Prof. Anup Surendranath at the National Law University of New Delhi wrote in an opinion piece in The Hindu newspaper on Sep. 17.

“A profoundly hurt and grieving society, the guilt of the accused established through damning photographs and videos, wounded nationalism and the possible involvement of state actors across the border all contributed towards making Kasab’s case a strong validation of the need for the death penalty,” he wrote.

Gonsalves said he does not see India agreeing to any U.N. moratorium on the death penalty.

Human rights activists like Gonsalves and Daruwala are also concerned at the arbitrary application of the death penalty in the country – as borne out by an analysis of cases between 1950 and 2006 carried out by Amnesty International (AI) – and also by too many erroneous judgements.

In August, a group of 14 former judges sought the intervention of President Mukherjee to commute death sentences passed on 13 convicts, currently incarcerated in different jails across the country, on the grounds of erroneous judgements.

In their appeal the judges pointed out that the Supreme Court had itself admitted that at least seven of the sentences were awarded ‘per incuriam’ (out of error or ignorance) and did not fall in the “rarest of rare” category.

“Executions of persons wrongly sentenced to death will severely undermine the credibility of the criminal justice system and the authority of the state to carry out such punishments in future,” the appeal to the president said.