In awarding the death sentence to Ajmal Amir Kasab, the sole survivor of the eight men who attacked Mumbai on November 26, 2008, the special anti-terror court in that city did not surprise anyone. As Judge ML Tahaliyani said, while sentencing Kasab to death on five counts — murder, conspiracy to murder, waging war against the country, abetting murder and committing terrorist activities under the Unlawful Activities Prevention Act — Kasab is a hardened terrorist beyond redemption. Even if he were not released, with his presence in an Indian prison — should the death sentence not have been passed and the option of life imprisonment been preferred — Kasab would remain an attractive target for potential hostage-takers. It is pertinent that Mr Tahaliyani referred to the Kandahar episode of December 1999, when three terrorists were freed and allowed to return to Pakistan to secure the release of a plane-load of hijacked passengers. He feared that if Kasab were sentenced to a long-term in prison — as his lawyer had pleaded, citing his client's young age and absence of previous criminal record — the Pakistani jihadi would be a prize for Lashkar-e-Tayyeba and any number of copycat groups. This is a valid point. It invokes compelling logic that will no doubt weigh upon the judges of the Bombay High Court and, later, the Supreme Court when they hear Kasab's appeal. That apart, the likelihood of a mercy petition to the President of India — the decision is actually taken by the Union Ministry for Home Affairs — should also be seen within this framework. Already, there is the disquieting situation of one of the principal conspirators of the December 13, 2001, attack on Parliament House, a man whose death sentence has been upheld by the highest court of the land, being kept on death row for years. The Government neither accepts his mercy petition nor executes him. It would be a tragedy if Kasab joined him in this bizarre waiting game, caused only because the political executive lacks nerve and creates a controversy where none existed.
It would also be sobering to remember Kasab was, at the end of the day, a foot-soldier. The generals in Pakistan and the logistics men — people like David Coleman Headley, the Chicago-based LeT operative — have not been interrogated by Indian investigators yet. Certainly, they are never going to be brought to trial before an Indian court. Two small-time Islamists have been acquitted in the case. They were charged with providing maps and local support to the eight protagonists of 26/11. Yet, Kasab and his colleagues came so well prepared and knew their way around just so well, it was clear that they had been given sophisticated briefings, and that there was a layer of navigation and guidance above that of the two Indian accomplices. This hunch was confirmed when Headley was arrested and his reconnaissance missions to Mumbai were revealed. This made the case against the two other men in the dock with Kasab a little weaker. Yet, it was obvious these men where jihad warriors and not innocents picked off the street. Even so, they have been completely acquitted; the prosecution presented an infirm case against them, one that, according to the trial court, did not merit even a short term in prison. This shows up India's anti-terrorism legal architecture. Getting rid of Kasab should not disguise that broader reality.
