Ajmal Amir Kasab has been sentenced to death. The case was decided after observing full legal procedure. The Home Minister expressed pride in the fair play and justice dispensed by India ’s legal system. TV channels went gung-ho over the fact that the state had succeeded in nailing the guilty. Some have questioned the death penalty, preferring a life sentence. It is all very puzzling.
After being caught on camera killing people, after personally shooting dead 7 persons including police personnel, after being responsible along with his terrorist gang for the death of 166 victims, was any other verdict for Kasab possible? What, then, is the great achievement of the Indian legal system that made several hearts burst with pride? As for commuting the death penalty to a life sentence, that question simply cannot be entertained as long as capital punishment remains on the statute book.
Kasab was sentenced by a Mumbai special court. The death sentence to Kasab must be confirmed by the Bombay High Court (HC). If the sentence is upheld Kasab could appeal to the Supreme Court (SC). Finally he could file a mercy petition before the President of India. The government has assured the public that the entire process would be completed within a year.
The debate about death penalty versus life sentence would never have arisen were it not for an earlier SC observation that the death penalty should be administered only in the “rarest of rare” cases. This curious statement came about ironically in another case involving the death penalty in circumstances most unusual. The statement has caused confusion and needless debate. Defining the rarest of rare cases can only be subjective. Little wonder that twenty death sentences, including one of Afzal Guru, remain pending. Why did the SC make this observation? Thereby hangs a not too pretty tale.
This observation by the SC came in the course of the Indira Gandhi assassination trial. The SC judgment in that case was very controversial. The sentence to hang Kehar Singh was widely questioned. Kehar Singh was deemed innocent by most people. There was no evidence against him except that he was related to Beant Singh. The families of Beant and Kehar had visited the Golden Temple . This was considered sufficient by the SC to nail Kehar Singh. This decision left a permanent blot on the wisdom of the SC.
Earlier the Justice Thakkar Commission Report had suggested that the conspiracy behind Indira Gandhi’s assassination be probed. The Commission identified one Congress politician as a suspect. That politician instead of being probed was rehabilitated by Indira Gandhi’s son, Prime Minister Rajiv Gandhi. Therefore closure of the conspiracy angle of the case was required urgently. Kehar Singh was made the fall guy to close the chapter and to silence all questions about the unsolved aspects of Indira Gandhi’s murder.
Responsible voices questioned the judgment. Kehar Singh’s lawyer Ram Jethmalani requested me to write on the subject in order to influence the President before whom Kehar Singh’s mercy petition was pending. I wrote on the fallacy of the judgment for The Indian Express. Kehar Singh was sentenced to death on 16th December 1988. He was hanged on January 6th 1989. It took less than a month to hang Kehar Singh deemed innocent while it is may take at least one year before Kasab is hanged, if at all. So what is the Home Minister so proud about?
Many responsible quarters thought Kehar Singh innocent. Even The Economist of October 29th 1988 wrote: “Four years after they killed her, two of Indira Gandhi's presumed assassins are about to hang. In one case, the government may be making a terrible mistake.” Commenting on the case former Chief Justice of India (CJI) PN Bhagwati wrote: "The possibility of error in judgment cannot therefore be ruled out on any theoretical considerations. It is indeed a very live possibility and it is not at all unlikely that so long as the death penalty remains a constitutionally valid alternative, the court or the State acting through the instrumentality of the court may have on its conscience the blood of an innocent man".
VM Tarkunde, former Mumbai HC Judge remarked that the evidence against Kehar Singh was not sufficient even to hang a dog. He criticized President Venkataraman for rejecting the mercy petition without objection. Indeed, President Venkataraman himself admitted his lapse in his autobiography. He described the decision to hang as being politically motivated. He wrote: “Kehar Singh’s case raised a few queries in my mind… should not the President have discretion to examine any extenuating circumstance and alter the death sentence without the advice of the government? How else can prejudice or partisanship be prevented?”
Most remarkably, the SC itself seemed to suffer from pangs of conscience. Chief Justice RS Pathak who headed the Bench that passed the sentence obliquely urged the President to grant pardon by observing that “the Constitutional power of grant of pardon or the executive power of remission does not conflict with the judicial power of passing a judgment”.
All this was to no avail. Kehar Singh overwhelmingly considered innocent was allowed to hang because everybody looked the other way. None had the courage to speak the truth. After all, this was related to the murder of Indira Gandhi. Kasab’s case is related to the death of 166 innocent people. Contrast the treatment of guilty Kasab with that of innocent Kehar Singh. Will India ’s judicial system ever have to stand trial?