DEATH DOESN'T MEAN CLOSURE

By

SUSHANT SAREEN

    Both the guilty verdict as well as the death sentence, that has been pronounced on the barbarian, who goes by the name of Ajmal Kasab were really no-brainers. In some ways, executing Kasab for the horrific savagery that he committed seems too small a sentence. Unfortunately, legally as well as physically, this is the maximum punishment that can be given to him. And, unless misplaced political or diplomatic considerations intervene, once the legal processes run their course, the civilised world will no longer have to bear the burden of this beast after a few months time.

    In a sense, the bated breath with which both the verdict and the sentencing has been received seems a little strange. Perhaps this was the result of a bit of grand-standing on the part of the prosecution which used what can only be called a legal version of sledgehammer to swat a fly. Unless there was some larger purpose being served by the thousands of pages of evidence that was presented and hundreds of witnesses that were produced before the court, the case against Kasab was pretty open-and-shut and ideally should have finished in a couple of months, instead of being dragged for over a year.

    Not only was the evidence against him overwhelming – CCTV footage and what have you – he was literally caught red-handed. That despite all this, it has taken so long to convict this terrorist in a special court doesn't really say much for the Indian criminal justice system. It was, in any case, quite pointless for the prosecution to try and prove the larger conspiracy and the involvement of Pakistan behind the savagery of 26/11. This was already a well established fact and merely the fact that an Indian court had convicted one of the terrorists on the basis of all the extra evidence was hardly going to make any difference, either in terms of shaming or exposing, much less deterring, the promoters, planners and perpetrators of this horrific crime, all of who are sitting in Pakistan.

    Quite aside the fact that the prolonged trial of such a high-profile case does nothing to strengthen our demand on Pakistan to speedily bring the masterminds of this dastardly crime to justice, statements by senior Indian officials and politicians that the trial proves the fairness and transparency of the Indian judicial system smacks of a sense of inferiority and lack of conviction on their part over the effectiveness of the judicial system to deliver justice. Why should India seek certificates or try to prove anything from rest of the world on the fairness of our judicial system? After all, we never hear the Americans or British or Chinese or even Middle-Eastern potentates seeking approval from any other country for the punishment they give to criminals and terrorists.

    This is not to say that the criminal justice system in India is in fine fettle. Far from it, the reality is that the criminal justice system is practically dysfunctional in cases which are not as 'celebrated'. There are innumerable terrorism cases that have been languishing in the courts for years. Part of the problem is the training, investigative skills, equipment and technology needed to solve the cases is sorely lacking. Add to this the fact that the police is understaffed and has terrible service conditions. Equally, if not more, serious is the bizarre situation in which India is using 19^th Century law like the Indian Evidence Act to combat 21^st Century crimes. No surprise then that in the 26/11 trials, while Kasab was convicted because his mug was on CCTV cameras and he was captured by an act of superhuman heroism by an intrepid Mumbai cop armed with nothing more than a lathi, the other two terrorists were able to secure acquittals. If this is not a failure of the legal systems, structures and processes, then what is?

    Clearly, instead of patting itself on the back and trying to win brownie points to cement its vote bank politics, the government needs to work overtime to make legal provisions that allow law enforcement agencies to collect technical evidence against terrorists and criminals. The amendments made in the law through the Unlawful Activities Prevention Act are woefully inadequate to successfully prosecute terrorists and their accomplices. Had such provisions been there in law, both Fahim Ansari and Sabahuddin too would hang.

    Apart from the domestic dimension of the verdict in the 26/11 trials, there is also an external dimension which too is unlikely to change merely because a Kasab is going to hang. The simple reality is that regardless of the tomes of evidence presented in the 26/11 trial, it is not going to be enough to stop the operation of jihad factories operating in Pakistan. Quite to the contrary, these factories which had been in a go slow mode for some time now are once again going full steam in manufacturing murderers. On the very day Kasab was pronounced guilty, a Lashkar-e-Taiba cell was unearthed in Kashmir. There was also a terror alert in Delhi after the verdict.

Not only is Hafiz Saeed openly addressing rallies in Lahore and other parts of Pakistan, the LeT commander in Pakistan-occupied Kashmir, Abdul Wahid Kashmiri had been addressing rallies of jihadist groups in PoK threatening jihad against India and rest of the world. It of course, goes without saying that the US secretary of state who has to certify that Pakistan is taking credible action against LeT is going to turn a blind eye to these activities and give an all clear to their Pakistani allies and ply aid and arms to Pakistan.

    As far as the trial of the masterminds in Pakistan is concerned, chances are that India will be sorely disappointed. As of now, it is not entirely clear what are the charges that these terrorists are facing in the Pakistani courts, or what is the quality of evidence that has been presented against them. If the evidence is as flimsy as the one presented against Hafiz Saeed or if the quality of prosecution leaves much to be desired, then these guys could soon be back in business of exporting murder and mayhem into India. But even if by some quirk of fate these terrorists are found guilty and convicted, it remains to be seen as to what the sentences will be. If they are given light sentences ranging from 5-7 years then they could be out in a couple of years. Let us also not forget the influence that these auxiliaries of the Pakistani intelligence agencies wield in Pakistan, not only with the Pakistani military establishment but also with the superior judiciary of Pakistan which is packed with Islamist judges. A conviction by the trial court could easily be overturned by the Lahore High Court or the Supreme Court.

    The bottom line is that carrying out the death sentence on Kasab is not going to bring a closure to the 26/11 case. Nor for that matter will the conviction of the terrorists being tried in Pakistan will end the menace of terrorism in India. The real closure will come only with the closure of the jihad factory in Pakistan, which in turn will happen only if Pakistan takes concerted and sincere efforts to de-radicalise its society and its polity, neither of which are on the anvil for the foreseeable future, even less so in light of reports that the Pakistan army is wanting to use LeT cadres in Afghanistan.

A last word is in order on the reaction in Pakistan to the Kasab verdict. While sensitive and sensible people in that country are embarrassed and even contrite over what has happened in Mumbai, this element is really now a fringe minority. The majority opinion is that Kasab's conviction is a grave miscarriage of justice. Given this demonical mindset that denies, if not revels, in the massacre of innocent people, one cannot help but wonder what sort of a peace process the government is entering into with Pakistan. More importantly, unless Pakistan cleans up its act, the spectre of another 26/11 type attack is always going to hang over India's head.

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    <1360 Words>                    6^th May, 2010

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