Our question isn’t will he or will he not be hanged. For the moment he will not. This is because all death sentences in India are automatically sent into appeal, and so that process must first play out before he is executed.
Though the direct evidence against Kasab is clinching, there is a technicality that might prove troublesome, according to Fali Nariman, an expert on law. This is the firing of Kasab’s state-appointed lawyer by the judge midway through the trial. The judge was irritated at the manner in which the defence was conducted, and called Kasab’s lawyer a liar. That lawyer, Abbas Kazmi, has filed a suit against these remarks the judge made while getting rid of him.
Nariman, the expert, believes there is a possibility that this changing of Kasab’s lawyer might affect the appeal’s outcome. But he says he did not know if it was enough for the case to be called a mistrial. We shall know in time what the Supreme Court thinks of this. If it finds the trial was fine, and that death was deserved, then Kasab still has another opportunity to live: a mercy petition to the president. All of this will take months and more likely years so the question of whether Kasab will be killed is at the moment not pressing.
Let’s return to our original question: should he be hanged?
Let us first look at the case for death. The most compelling reason is that capital punishment is approved of by the Indian state and it should be applied. Laws should be changed in the legislature, and not in newsrooms. If the punishment is deserved, and the judge says it is, then it is to be carried out. The second and third reasons are the nature of the crime and the manner in which it was carried out: the execution of 173 children and adults for no particular reason other than hatred. Then there is the matter of deterrence: that killing the person who did it will discourage others from doing it again.
This, unless we have missed some minor reasons, is broadly the case for death. Let us look at the case against capital punishment for Kasab. On India’s television channels, those who have a problem with the death penalty in general are dismissed quickly and asked to produce a specific objection in this case. This is because, apparently, moral objections are not really objections at all, and we should all be comfortable with state participation in ritual violence when the non-violent option of jail is available.
But there are specific objections too. One is that Kasab might prove useful to the state. He could have information that he hasn’t yet revealed, or could not remember. For instance something about training and method that might help in preventing or tackling a future attack. Now that his trial is over, Kasab could be cultivated. A second reason is that he might testify, should a time come, even if this is unlikely, when Zakiur Rahman Lakhvi and Hafiz Saeed are tried in India or somewhere outside Pakistan. Unlikely and impossible are different things, and we must remember that.
The state must look at the question of deterrence carefully and consider whether killing Kasab deters or encourages potential attackers. I believe that the latter is more likely. The 10 young men who got off that dinghy and began their slaughter did not intend to return to Pakistan. There was no escape planned, and such men are not deterred by the thought that they might be killed on their mission. They might even welcome that outcome.
I have a problem in general with the death penalty, but I think that even the specific arguments against it in this case are substantial.
India should jail, not kill, Ajmal Kasab.
Published in the Express Tribune, May 12th, 2010.