Why Kasab deserves a fair trial | mumbai | Hindustan Times
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Why Kasab deserves a fair trial

One question has repeatedly arisen over the past year: do we need to try Kasab? His culpability was there for all to see. Do we need 2,000 witnesses to prove a case in which the evidence has been captured on camera? Must the state spend so much to provide him a fair trial?

mumbai Updated: Nov 26, 2009 00:06 IST

One question has repeatedly arisen over the past year: do we need to try Kasab? His culpability was there for all to see. Do we need 2,000 witnesses to prove a case in which the evidence has been captured on camera? Must the state spend so much to provide him a fair trial?

Comparisons with the 1993 blasts trial are unavoidable. Obvious similarities exist, starting with the event, the alleged offences, the charge sheet’s size and the location of the absconding accused.

But the cases also differ in key ways. First, the blasts case was tried under TADA, a special anti-terrorism law, and the trial lasted for about 12 years. Kasab’s case will be decided in a much shorter time.

Second, TADA and POTA, another anti-terrorism law, have been repealed and replaced by the Unlawful Activities (Prevention) Act. Yet we are trying Kasab under the Indian Penal code. Why?

First, the terrorism law is not only controversial, it is not adequate to deal with such a heinous deed. Second, the IPC and other laws have stood the test of time. The entire gamut of Kasab’s alleged offences can be dealt with using these laws. Third, the IPC pre-dates Partition, so its provisions are virtually identical to those of the Pakistan Penal Code. Prosecuting Kasab and others under these laws would thus satisfy the test of dual criminality, relevant in the context of prosecution even under Pakistan’s laws.

The prosecution must lead all relevant evidence for other reasons. Kasab merely executed the crime; the real perpetrators were his handlers and superiors who hired, indoctrinated and trained him. The transcripts of the intercepted telephone conversations, the boat’s movements, details about the explosives, ammunition, etc., will in all likelihood establish Kasab’s links with his co-conspirators in Pakistan.

The CCTV footage is direct evidence only against Kasab, and only for some of the offences. It is not sufficient to prove the criminal conspiracy and abetment of the main accused, some of whom face trial in Pakistan.

The fact that we do not have an extradition treaty with Pakistan and its refusal to hand over the suspects to India are also compelling reasons to ensure that the state leads all evidence to establish the charges of abetment and criminal conspiracy to the hilt.

Finally, we live in a country committed to the rule of law. Article 21 of the Constitution prohibits the deprivation of a person’s life or liberty except in accordance with procedure established by law.

The world is watching this trial. India cannot be seen falling short of its commitment to uphold the presumption of innocence doctrine and to ensure a fair and public hearing by an impartial tribunal. We must have patience.

Amit Desai is a Senior Advocate practising criminal law.