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The Kasab case and why India needs judicial reforms

September 25, 2012 18:20 IST

Ajmal Kasab's trial was no triumph of justice, but a shameful demonstration of our inferiority complex, argues Colonel Anil A Athale (retd) as he makes a case for reforming our judicial system.

It is nearly four years since Pakistani terrorist Ajmal Kasab along with his nine-member team (who lie buried with Islamic rites near Mumbai) went on a rampage and killed over 166 Indians including 40 Indian Muslim citizens.

The whole world saw it live on television. The Indian judicial system took four years for the trial to be completed and Kasab's death sentence has been confirmed by the Supreme Court. All this while the government spent close to Rs 30 crore (Rs 300 million) on his security.

This long drawn out trial was tom-tomed as showing to the world how the Indian system of justice is 'fair'. The emphasis was on 'showing the world'.

Rather than earn any plaudits for India, this particular episode underlined the Indian slavish mentality and our constant effort to seek 'recognition' from the white man!

This was no triumph of justice, but a shameful demonstration of our inferiority complex. As expected, Kasab has put in his mercy petition to the President. If history is any guide, then Kasab's petition is also unlikely to be decided in the next 10, 15 years, if at all.

Afzal Guru, convicted of the December 13, 2001 attack on Parliament, is still awaiting a decision on his mercy petition!

Contrary to the prevailing opinion, this author is against the death penalty. There are several reasons for it, some ethical and some practical. Ethically, one is against the death penalty for the reason that in case there is miscarriage of justice, there is no way the dead person can be brought back to life. The author also feels that for heinous crimes, death is actually a release.

Instead, it is far more 'just' to imprison the convict for life and make him suffer. The practical reasons for abolishing the death penalty are equally compelling. Statistically, it has been proven that doing away with death sentence has no effect on the crime rate.

In the case of India, the soft State that we have, in any case has no stomach for the death penalty.

The Supreme Court by bringing in the concept of the death penalty to be awarded in the 'rarest of rare' cases only, has in any case abolished the death penalty in effect. This is possibly a case of judicial activism prompted by the trend worldwide in abolishing the death penalty.

Abolishing the death penalty will only be formally acknowledging the existing reality.

But increased violence, crime and terror attacks ought to generate a major debate on the state of criminal justice system in India. Even the members of the judicial system will concede that the system is near breaking point in India.

An antiquated evidence law, judicial delays, abolishing the jury system have made justice more 'technical' than just.

It is not just Bollywood movies that depict the rich and famous getting away with crime, reality imitates art.

The rich and famous in India have killed citizens in cases of drunken driving, been caught with AK-47 rifles, have killed endangered species. While a person taking small bribes is often caught and punished, those looting several hundreds of crores seem to be forever on bail.

After some initial interest and pre-trial arrest, the case is forgotten by all. Not one of them has been sentenced and served time in jail.

Our convoluted morality shows more concern for the rights of the perpetrator than the victim. In defence of our non-functional system, we often invoke the Mahatma. The Gandhian dictum is if we follow the biblical eye for an eye and tooth for a tooth the whole world will go blind and become toothless.

But the counter to this is that only if a law-abiding citizen follows this, only he will end up both blind and toothless.

What is the aim of the criminal justice system?

Is it proportional retribution or prevention of similar crimes and making society safe by locking up the criminals?

If it is the latter, then certainty of punishment is more important than severity... a principal successfully followed in successful parenting.

There is an urgent need to drastically overhaul our judicial system.

It is the absence of judicial reforms that will derail economic or political reforms. The current rash of scams, crony capitalism and rampant nepotism, are all due to the fact that we have failed to reform our judicial system.

We need to bring our evidence act in line with modern technology. Much more effective curbs on corruption can be brought about if we put the burden of proof on the holder of disproportionate assets.

The judiciary must also become selective in admitting appeals. A former chief justice of a high court confided to this author that one major reason for judicial delays is that the apex court admits appeals even when only the 'facts' of the case are challenged. The Constitution has clearly mandated the apex court to deal with issues of interpretation of the law or the Constitution.

If the apex court is to follow its true Dharma, much of the backlog of cases would vanish. As argued earlier by this author (Judicial activism: How far does it go?) we do need to revisit the abolition of the jury system.

All this may well turn out to be a cry in the wilderness. But at least on the issue of mercy petitions some clarity is essential.

A mercy petition should only be considered where there is a full disclosure by the convict of the crime, an admission of guilt and a display of genuine remorse. It should be possible to take the views of the victims of the crime in deciding on the clemency.

There is a societal need to challenge the doctrine of the death penalty in the 'rarest of the rare cases only' totally extraneous to the law and Section 302 of the Indian Penal Code.

Colonel Anil A Athale (retd)