Citation: 29TH AUGUST, (2012) 9 SCC 1
Name of the judges: Aftab Alam, Chandramauli Kr. Prasad
Petitioner: Mohammad. Ajmal Amir Kasab
Respondent: State of Maharashtra
Introduction of the case:
Ten Pakistani-trained terrorists entered India by Kuber via sea route from Pakistan to incur chaos and destruction and create havoc in the eyes of the Indian Citizen.
Foreigners and the Indian government were killed in the attacks on the 26th of November 2008. The case talks about the imposition of the death penalty for one of the convicted terrorist which was involved in the attacks, where the 10 Pakistani terrorists divided themselves into a few groups and attack different places in Mumbai. This includes the CST, Leopold Café, Taj hotel, Oberoi Hotel, and Nariman House. This attack led to the death of 166 people and around 238 people were injured. Policemen, foreign nationals, and military officials were among the few who were injured as well as killed.
Brief facts of the case
The Mumbai attack in November 2008 was a string of horrifying terrorist acts that instilled fear in the hearts and minds of all country residents.
On November 26, 2008, ten members of the Lashkar-e-Taiba entered Mumbai illegally. They then assaulted several well-known Mumbai locations, including the Taj Hotel, Leopold Café, Oberoi Trident Hotel, Metro Theatre, and CST train station, inflicting over 166 fatalities. These terrorists crossed the Arabian Sea to reach Mumbai. Only Ajmal Kasab, who was a direct participant in this incident, was captured alive. The remaining terrorists were encountered and shot dead. Conspiracies to commit murder were hatched in Pakistan, and an attack on India was planned to start a war against the Indian government.
The planning for these attacks took place from December 2007 to November 2008. Pakistan provided the terrorists with the weapons they needed to attack India. Before the attack, the terrorists were informed that "it is a right for Jihad and if they died in this mission, they will obtain the position in heaven." They were also informed that the only way to secure Kashmir would be to undermine the Indian government from within. The only way to accomplish this is by targeting India's major cities. Nearly 166 people were killed and nearly 238 others were gravely injured by Mohammad Ajmal Kasab and his fellow terrorists.
Issues of the case
Whether the due process of law based on Article 21 of the constitution was properly followed to provide free and fair trial ?
Was the appellant's death sentence reasonable in light of the juvenile age of the appellant?
Contentions
The right to free legal assistance, the right to speak with and be represented by counsel appointed in accordance with due process of law,
and other rights are all guaranteed under the Indian Constitution's Articles 21, 22, and 39A. The accused is also entitled to legal representation when he is brought before the magistrate, as well as at the beginning of the trial. The magistrate should evaluate the risk to the individual's liberty after the person has been brought before him or her. A person's liberty is in risk as soon as they are arrested and brought before a magistrate, necessitating the need to petition for bail and benefit from other legal procedures. This is why legal representation is so crucial at this point. A method that denies an accused person legal counsel and representation at that point cannot be justified as being reasonable, fair, or just.
That is the stage at which an accused person needs competent legal advice and representation. Therefore the state is duty-bound not only at the start of the trial but also when the accused is produced before the judge, as well as a remand to provide legal aid to the accused.
When Khasab was provided a legal representative, he asked for a Pakistani representative in the court of law, however Pakistan denied that Khasab was a Pakistani citizen, hence was not provided with a legal representative.
For the right to legal aid based on the provision present in Article 22(1), two aspects have to be fulfilled
The accused individual has to be provided with the opportunity to speak with the lawyer of his choosing
The accused has the right to choose the lawyer based on his choosing
He then referred to section 304 of the CrPC, which stated that if the accused is not present before the court, it means the court does not have a sufficient pleader and a pleader may be assigned for the defence of the accused. In the case Miranda v. Arizona "It also appears from the Miranda case decision that the police will expose the suspect to an oppressive environment during contact questioning." The world of interrogation employs all of the intimidation methods and questioning abilities at his disposal, not to discover the truth, but to break the prisoner and force him to "confess" to his crime. It was in such a setting that the U.S.
The Miranda Decision was created by the Supreme Court to give the accused with the necessary safeguards against self-incrimination and to assure the consensual existence of any statement made before the authorities. A simple examination of the provisions of the CrPc reveals that sections 161 to 164 of the CrPc, together with sections 25, 26, and 32 of the Evidence Act, are intended to provide comprehensive protection to the accused from self-incrimination.
If section 120-B is read with Section 302 of the IPC, and Section 121 and section 16 of Unlawful activities Act 1967, hence if all the sections are read together then if all the aspects are taken into consideration it can be concluded that the prosecutor’s argument regarding Kasab’s death penalty does stand.
The manner which the murder was committed is morally repugnant, this is confirmed by the confessional statement by which the navigator was murdered by Kasab. In the landmark case, Bachan Singh v. State of Punjab, if the person has committed a murder, life imprisonment is a rule but death sentence will only be considered if there is a majority and a ratio of 4:1. Hence 302 of the IPC can be considered void and unconstitutional, this is with all the mitigating factors involved which has indeed added more weight. In the most serious situations of responsibility, the death penalty should be imposed. It is only in the most exceptional of circumstances that it becomes an exception rather than the rule.
When the appellants side of the case has argued on the aspect regarding the age of the accused. However, Ajmal Kasab's actions overpower his mental age. Even though the argument regarding the fact that Ajmal Kasab was forced does not account for the lesser penalty. For a person who had no remorse in killing the elderly, innocent children and police officers, the aspect of rehabilitation cannot be considered, he knew the repercussions of his actions therefore he deserves to be punished for those actions. Age is not usually a consideration when fading a penalty. Ajmal Kasab insulted the Indian government and its sovereignty, and the most harsh penalty is totally appropriate.
In the case of State vs. Mohd. Afzal and Ors, the highest court decided that Afzal "deserves to be handed over the country" in order to appease the public conscience. However, the court neglected to consider the fact that the case lacked a qualified defence attorney.
The primary cause of the widespread protests against the Indian justice in Kashmir and even in the European Parliament, when over fifty British lawmakers voiced their worries on the denial of Afzal a fair trial, was this fast ruling.
Judgement
0 The majority of the court decided that Kasab was guilty of the crime after taking into account all the evidence that the attack on Mumbai, which resulted in the deaths and injuries of several unarmed civilians, was a horrible act.
Additionally, it shows that murdering innocent individuals for no other purpose than to become "Fidayeen" has a greater effect on Indian nationals and foreigners, as well as generating a rift of mistrust and suspicion amongst the populations.
0 It was ruled by the Supreme court that the procedure is recommended for those who statutorily denied counsel are entitled to a common law right to represent via a friend since many lawyers were unwilling to take up the case. Even in such circumstances, the court is required to provide or give access for legal representation based on the aspects of Human Rights.
0 Article 20(3)'s prohibition on self-incrimination does not apply to voluntary declarations made when acting with free will and choice.
We also acknowledge that the provisions of the Criminal Procedure Code (Sections 161, 162, 163, and 164), as well as the Evidence Act, 1872, fully incorporate the right against self-incrimination under Article 20(3). As a result, compliance with these statutory provisions equates to compliance with constitutional protections. With the exceptions being Miranda v. Arizona.
0 The court ruled that it is not enough for a criminal suspect to stay silent after being informed of his right to silence; instead, he must exercise that right up to the point at which it is proper for the police to stop questioning him.
Police can therefore exploit a suspect's damning remarks after a considerable period of quietness.
0 It is an absolute right and an obligation for the accused to be represented by a lawyer, unless the accused voluntarily tells the court in clear that he does not want to be represented by a lawyer and would rather defend himself personally because failing to do so would invalidate the trial, the conviction it produced, and the punishment it imposed on him
0 Ajmal Kasab then approached the Supreme Court in the change of the judgment by the lower court,
the Supreme Court after careful consideration upheld the judgement
0 On 5th November 2012, Pranab Mukerjee rejected the Mercy Petition which was filed.
0 On 21st November 2012, Ajmal Kasab was hanged in Yerwada Central Prison, Pune.
Conclusion
For terrorism to be countered in the country, the approach and the system of representation and punishment of the offenders has to be done in a faster and with much better approach. Punishment of the offenders should be the first degree objective, this should include the obvious provisions to legal aid should be supportive of the victims families as well as the public officials who are involved in the whole process.
This article is written by Anuragh of Symbiosis Law school.