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Operation ‘X’: Law Or No Law360°ANALYSIS

Why the Indian government did have the right to hang terrorist Mohammad Ajmal Amir Kasab.

The hanging of Mohammad Ajmal Amir Kasab brought to closure a violent chapter of the terrorist attack which shocked Mumbai, the commercial capital of India, on 26 November, 2008. 26/11 became India’s equivalent to 9/11, as ten Pakistani terrorists wrecked havoc in the city after traversing the 506 nautical miles distance between Karachi in Pakistan to Mumbai, undetected. 166 innocents including U.S and Israeli citizens lost their lives in the ensuing carnage. The intensity of the attack can only be judged by the fact that the security forces required 60 hours to eliminate nine terrorists. The exemplary individual bravery of a police constable which resulted in the capture of Kasab ensured that the Pakistani security establishment’s complicity in the conspiracy was exposed before the world.
The Indian government displayed remarkable maturity in eschewing the public clamour for instant justice for Kasab and in opting to pursue the established legal procedures. The Supreme Court of India upheld the death sentence awarded to Kasab. He was hanged after the President of India rejected his petition for pardon under Article 72 of the Constitution of the country. 
The hanging which brought a sigh of relief in the country has met with howls of protest from human rights bodies and some legal experts. Organizations like the Amnesty International oppose capital punishment as a matter of policy and therefore their perfunctory protests would have been accounted for by the government while proceeding for the hanging. 
However the accusations of ‘deception’ and ‘constitutional impropriety’ emanating from some legal experts have caught the government off guard. The hanging and burial of Kasab which was carried out in absolute secrecy had indeed come as a surprise to the common Indian more attuned to the prevarications of the government while confronting terrorism.  
The legal experts have argued against the hanging of Kasab because of non compliance of the doctrine of judicial supremacy over executive decisions. The Supreme Court of India has made judicial review a part of the basic structure doctrine which cannot be amended by the legislature.
The Constitution provides the President of the country power under Article 72 to grant pardon to a death row convict. But since this power arises from a sentencing by the judiciary, it retains the power to review the rejection of the clemency petition by the President. The review is limited to the reasons attributed to the Presidential rejection of the petition. Furthermore, the Fundamental Right to Life under Article 21 of the Constitution states that nobody can be deprived of his life except for procedures established by law. The Right to Life is therefore applicable to even to non citizens.
That Kasab was perhaps not informed of his legal right to seek a judicial review of the Presidential rejection and therefore denied his Right to Life has raised the ire of the legal ‘experts.’ The argument alludes to the violation of Kasab’s Fundamental Right under Article 21 and therefore the hanging being illegal. 
The argument is however fallacious as legal proprieties cannot be considered in isolation by detaching law from the soico-political milieu of the country. Constitution makers while incorporating the Fundamental Right of Life for all individuals irrespective of their nationality did not envision a situation wherein India would be under siege from fanatical Pakistani terrorists with least concern for human lives.
26/11 was not only an attack on Indian sovereignty but by targeting foreign national including U.S and Israeli citizens the terrorists converted it to be an attack on the civilized world. Kasab with his companion attacked the Chhatrapati Shivaji Railway terminus during rush hour killing 58 commuters mercilessly. Three senior police officials also lost their lives in the line of duty after being ambushed by the duo. 
Democracy creates penal laws for ordinary criminals and not for an ‘Act of War’ by terrorists. It is to counter these ‘Acts of War’ that democracies resort to extra constitutional procedures. Fighting these fanatics with codified laws is akin to fighting with hands tied behind the back. Therefore, the U.S has Guantanamo and Israelis the selective assassinations of terror operatives. Russia also had to resort to similar measures when confronted with terrorist violence in Chechnya. 
The specious arguments regarding the legalities of hanging seem to suggest that a sovereign state should perhaps play by the book and countenance an assault on its sovereignty. 
The hanging of Kasab may have been carried out in secrecy, but he had been provided a fair trial with the courts providing him lawyers to argue his brief after Pakistan had refused to acknowledge his nationality. Ironically, Kasab did not exhibit any sign of remorse during his trial. The fairness of his trial can be judged from the fact that despite clinching evidence against him; the judiciary took more than three years to finally confirm his death penalty.  
So compelling was the evidence against him that even a judicial review of the reasons behind the Presidential rejection would have at best only delayed the punishment by some time.  
On the contrary, the delay in the execution had the inherent potential of some maniac organization resorting to hostage taking to bargain for the release of Kasab. 
India is not new to this experience.
In 1989, Kashmiri terrorists kidnapped the daughter of the Home Minister and ensured the release of five of their incarcerated colleagues. Worse was to follow. In 1999, Pakistani terrorists hijacked an Indian Airlines flight and took it to Kandahar in the Taliban ruled Afghanistan. Protracted negotiations over the release of 150 passengers failed to shake the resolve of the terrorists who were also encouraged by the friendly environs of Afghanistan. The government of India finally yielded and released three terrorists in exchange for the hostages. Ahmed Omar Saeed Shaikh, one of the released terrorists was later arrested for the abduction and murder of WSJ journalist Daniel Pearl. Maulana Masood Azhar, another released terrorist, established Jaish-e-Mohammad, a dreaded terror outfit.
The apprehensions of the Indian security establishment over a similar probability have been confirmed from the statements emanating after Kasab’s hanging.  The Tehreek-e-Pakistan’s Jundullah group has issued calls to avenge Kasab’s hanging by strikes on “Indian soil within a month.” A Taliban faction has also raised the pitch by issuing call to “strike Indian targets anywhere.”
The legalities aside, it has to be understood that in this no holds barred struggle with terrorism, the only rule for success is having no rule. Providing the foreign terrorists protection under a Constitution which itself is under attack from these terrorists can only weaken the nation’s resolve to fight this menace. 
For long the Indian political establishment has been a prisoner to its warped pseudo secularist policies resulting out of a spurious concern for protecting Muslim interests. In reality the polity has done virtually nothing for the upliftment of the common Muslims and has pampered the radical elements in the community to retain their vote banks. Any delay in the hanging was bound to activate these ‘pseudo-secularists’ out of their dormancy which had been forced on them because of the public revulsion over 26/11 attacks. 
Recent incidents in Mumbai where national monuments were desecrated in public view by violent Muslim youths protesting over the treatment of Rohingya Muslims in Myanmar had also increased the anxiety of the security forces over similar ‘staged’ protests against Kasab’s hanging. As per intelligence inputs the Inter Services Intelligence Agency (ISI) had activated its sleeper cells in Mumbai to create communal disturbances particularly in Mumbai after the announcement of the date of Kasab’s hanging. 
In an extension of its policy of ‘bleeding India through a thousand cuts’ Pakistan has been fighting a proxy war by motivating terrorists behind a religious veneer. India which is perceived to be a ‘soft state’ has failed to formulate a uniform policy to counter the Pakistani machinations. The Indian polity till now has been apprehensive of taking a tough approach against terrorists lest it upset its Muslim electorate. The dithering of the Indian establishment when dealing with terrorists and their sympathizers has only emboldened Pakistan to keep raising the stakes in the psychological battle. 
That Pakistan has been unable to bring the conspirators of 26/11 to stand trial is a manifestation of its devious designs on the sovereignty of India. India therefore needed to send out a message to Pakistan about its resolve to confront terrorism.   
Extraordinary situations call for extraordinary responses. The secret hanging of Kasab was one such response of a pusillanimous establishment perhaps finally willing to send out a message. 
Machiavelli would have certainly approved. Law or no Law!
The views expressed in this article are the author's own and do not necessarily reflect Fair Observer’s editorial policy.