Kasab’s Hanging And The Politics Of Death Penalty In India

The news that India executed Ajmal Kasab, the lone surviving gunman who was part of the 10-member team that carried out the Mumbai terror attacks Nov. 26, 2008, came as a shock, not because anyone had any doubts about the magnitude of his crimes but due to the surreptitious nature of his hanging.

It has only been two weeks since President Pranab Mukherjee rejected Kasab’s mercy petition, and since India had not executed anyone since 2004, despite having more than 300 prisoners on death row, the public didn’t see it coming, at least not this soon.

What was it that made Kasab jump the queue when convicts like Afzal Guru, the perpetrator of terror attacks on Indian Parliament in December 2001, Balwant Singh Rajaona, the convict in the assassination of former Punjab Chief Minister Beant Singh and the three assassins of former Prime Minister Rajiv Gandhi have been awaiting their executions for several years?

“No government will actually confess to its real motives, but one thing is apparent: Only politically convenient convicts will be executed,” R. Jagannathan wrote in an article published on FirstPost.

“In Kasab’s case, he was a Pakistani national, and there was no political pressure to keep him alive in India,” he writes, adding that how the political considerations in the home states of the aforementioned criminals -- Kashmir, Punjab and Tamil Nadu -- come in the way of carrying out the executions.

“We are now in a situation where only politicians will decide who to hang -- and that too when it is beneficial to them politically,” he writes.

It would have been surprising if the Indian media and public hadn't noticed the suspicious timing of the execution that came a day before the winter session of parliament and weeks ahead of the Gujarat assembly election in December, where ruling party at the center, the Congress, is pitted against Narendra Modi, the state’s formidable nationalist chief minister from Bharatiya Janata Party or BJP, center’s key opposition.

“So Kasab hanging will be the card to use in Gujarat campaign. ... 'Kasab ko kisne latkaya? Humne' (Who hanged Kasab? Us) Wait & Watch,” a right-wing popular blog Media Crooks tweeted, referring to what the Congress is likely to claim during the rest of the Gujarat election campaign with just three weeks to go before the polls.

Even as a significant amount of discussion is going on surrounding the “sudden” hanging of Kasab, from the judicial point of view, as long as the death penalty has been handed by the apex court and the president has rejected the mercy petition, a convict should be executed without delay, as the law states that a delay in the judicial procedure is a valid ground for commuting the sentence.

The government taking years and even decades to dispose mercy pleas and to carry out the death penalty has made several lawyers and rights activists question its legality, with the most debated case being that of the three perpetrators of Rajiv Gandhi’s 1991 assassination.

They have spent two decades on death row, and the Indian president rejected their final mercy petition in August last year. They unsuccessfully tried to use the delay as a ground to commute their death sentences in a petition filed soon after the rejection of their mercy pleas.

“However long it may be is not a mitigating circumstance or can be construed as a valid ground for commutation of death sentence and in any event does not reduce the gravity of the crime,” the central government had said in its counter-affidavit in response to their petitions.

Defence lawyers Amin Solkar, Farhana Shah and Abbas Kazmi, who appeared for Kasab in the Bombay High Court, welcomed his execution but questioned the secrecy.

“It is good that the government expedited this case as it must have been done in the interest of the society and victims. Maybe guarding him for so long was becoming a burden on the exchequer. But why the secrecy?” Solkar was quoted as saying by the PTI.

The accusations of political point-scoring and untoward secrecy surrounding the execution shouldn’t be misconstrued as tear-shedding on Kasab’s grave, but rather as questions concerning the other convicts on death row and the practice of stretching the vital points in the Indian Penal Code to suit political convenience.

Kasab is only the third person to be executed in the country since 1995, a record that is in tandem with the international efforts to abolish death penalty. However, India was among the 39 countries that voted against a U.N. General Assembly draft resolution Tuesday, which called for abolishing the death penalty, saying every nation had the "sovereign right" to determine its own legal system.

"The draft resolution sought a moratorium on executions. India could not support the text in its present form," India said in its explanation of the vote.

India has imposed an unofficial moratorium on capital punishment since the Supreme Court ordered in 1983 that it be used only for the “rarest of rare” cases.

So what is it that keeps a nation like India from abolishing death penalty altogether, though it doesn’t actually carry it out that often?

In India’s political set-up where many of the regional parties favor capital punishment, including BJP and several Hindu nationalist parties, abolishing the death penalty could be tricky. Delaying executions with convicts rotting in prison, uncertain of what to expect, seems an easy and sometimes the most convenient option, as was the case with Kasab.