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raj kumar makkad


Advocate
[ Scorecard : 124009]
Posted On 12 May 2010 at 18:40 Report Abuse

The media coverage of the trial and sentencing of Mohammed Ajmal Amir Kasab has been most telling. "Kasab gets what he gave — DEATH", said a headline in a leading daily articulating, perhaps, the cathartic relief that Judge Tahilyani's judgement seemed to have given to millions of people troubled by feelings of vengeance and vendetta.

No terrorist strike schemed in and launched from a foreign land convulsed the nation more than the events of 26/11. Being in fight for long against home-grown as well as foreign-based terrorism, India woke up to an altogether new reality on November 26, 2008 when Mumbai was attacked by depredators coming from Pakistan via the sea route. This strike was first of its kind for the targets chosen and weaponry employed. In its intensity, it was close to an invasion. Obviously a traumatised nation demanded quick response and speedy justice.

The trial of the case registered against the only surviving accused, Kasab, took 17 months. Six hundred and fifty witnesses were examined and an estimated Rs 35 crore was spent, a major portion of which was used for ensuring foolproof security to the prisoner at Arthur Road Jail. In a system often criticised for its delays and interlocutory litigations, Kasab's trial, therefore, deserves genuine applause for delivering speedy justice.


People are exercised over the acquittal of the two Indian men accused in the case, Fahim Ansari and Sabauddin, who are said to have laid the ground for the terrorist attack. Certainly, the law will take its course in their case but let this not cloud our view of the Indian criminal justice system of its fairness, transparency and freedom from prejudice. The high legal standards displayed in providing legal aid to Kasab demonstrates the majesty of our legal system which has, undoubtedly, enhanced India's reputation as a nation espousing the rule of law. It goes without saying that this case is also an example of the human rights standards being followed in India even for people accused of, and under trial for, the gravest of offences.


Mumbai was blighted in the past also by serial bombings in March 1993 and the bombing of commuter trains in July 2006, resulting in the loss of hundreds of innocent lives and huge damage to and destruction of property. The task before the investigating agencies and the courts was, undoubtedly, both daunting and stupendous, but the long time taken in investigations and the much longer time taken for trial tended to undermine the faith of the people in the credibility of the criminal justice system. A stay was granted on the trial of those accused of being involved in the train bombings which has been vacated only a few days back. The judgement in the cases of the 1993 serial bombings was delivered in 2007. In comparison, the trial of Kasab has been the fastest and should serve to restore faith in the criminal justice system.


Kasab's case holds both a lesson and a hope. It is a lesson for the state to learn that cases of terrorism demand fast track investigations and speedy trials and it is hoped that a sound justice delivery system can be an answer to terrorism. Needless to say it is an imperative in the context of terrorism which has been universally acknowledged as a threat to human existence and civilisation.


Justice lies not in retaliatory actions (though when the situation demands it is criminal not to resort to them). In a society governed by the rule of law it has to be pursued intrinsically through the criminal justice system and within the boundaries of constitutionally granted norms. But if a crime has been committed, the criminal justice system must operate to mete out punishment following the due process of law. As has been famously said, "Law should not sit simply, while those who defy it go free and those who seek its protection lose hope."


Prime Minister Manmohan Singh has, on several occasions, stated unequivocally at national and international fora that fighting terrorism should be accorded utmost priority. Let strengthening our criminal justice system, too, be accorded the same priority "to ensure the protection of the weak against the strong, law abiding against the lawless, peaceful against the violent".


In his report on reforming the criminal justice system, Justice Malimath has critically examined the areas that need urgent reforms aimed at, among other things, providing "effective response to the challenge of terrorism". Former Chief Justice of India KG Balakrishnan, in a recent interview, said, "India should consider putting in place a tough anti-terror law that can enable and help probe agencies crack terror cases… it is time for Parliament to debate the need for a suitable anti-terror law in India." Let us address this issue seriously; as jurist Fali Nariman puts it: "This is the last bus to catch."

Kasab's case also calls into focus the role of the police. They are the first in setting the legal machinery in motion in the criminal justice system. Police investigations of terrorist crimes —which are crimes under the established laws of the land — are the bedrock of all court trials. Their response has to be the first response in any situation that imperils internal stability.


Failings in the functioning of the police have been critically examined by the High Level Inquiry Committee appointed in the aftermath of 26/11 and headed by former Union Home Secretary RD Pradhan. Chinks in their armour have been clearly identified. While applauding the supreme sacrifices made by the police and the people in confronting the terror attack, the committee has not failed to point out the lapses on the part of individual officers which deserve serious action and should not be ignored at all.


Regarding the failure of intelligence agencies, indeed, there was failure. A new genre of advisories and warnings lacking in specificity and couched in abstract terminology is not a good name for intelligence. Credible intelligence containing area-specific information which has proximity to events serves the purpose of not only forewarning but fore-assuming as well.


Lastly, this is a moment in independent India's history that should compel all wings of the state — the executive, the legislature and the judiciary — to do serious reflection on the need to usher in reforms in all their respective spheres that should act as a bulwark against not only terrorism and militancy but any threat to India's sovereignty. If we do that we shall re-emerge as a nation stronger in spirit, buoyed by a new vision and united forever.

 




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