Table of
Contents:
Title…………..………………….................................................................................4
Objective…………………………………………………………………………………………………….4
Research
Questions.........................................................................................4
Social
Issues…………………………………………………………………………………………………5
Chapters:--
1. Introduction: Concept of Justice................................................6-8
2. Bill of Rights, UDHR and Art-21 of
Indian Constitution…….......9-12
3.
Delay in Justice: A Taboo or A
Trend…………………………………...13-16
4. A Brief Study of the Kasab’s Trial............................................17-21
Findings and Suggestions………………………………………………………………………22-23
Conclusion......................................................................................................24
Bibliography...............................................................................................25-26
TITLE:
The
title of my
project is “Delay in
Justice: A Perspective in
Light of Kasab’s
Case”.
OBJECTIVE OF THE STUDY:
The purpose
of this document
is to analyse
the notion of
“Denial in Justice”
or “Justice delayed
is Justice Denied” and
in the light
of this also
pore over as
to whether there
was an actual
delay in the
execution of Mohammad
Ajmal Amir Kasab,
the accused of
the 26/11 terrorist
attacks in Mumbai
or not. It
was argued by
several people that
the delay wasn’t
actually a delay
as the fair
trial of Kasab
signified the Constitutional Supremacy
of India. It proved
that the Indian
Justice delivery system
respects the human
rights of every
individual as to
get a fair
chance of being
heard. Yet others
argued that our
Judicial System is
too slow. They
are of the
view that he
should have been
hanged much earlier
so as to
cause deterrence in
the hearts of
other terrorists who
even think of
waging war against
the nation. Thus
this report will
try to provide
a more lucid
view of the
various angles involved
in the 4
years long trial
of Kasab.
RESEARCH QUESTIONS:
The researcher
through this report
will try to
come up with
the answers of
the following questionnaire:
1. Is there
a need for
some advancements in
our Justice Delivery
System on account
of delay in
several cases on
grounds of adjournments and
other flimsy reasons ?
2. Does the
delays in Justice
Delivery make the
notion of Justice
Delayed is Justice
Denied more germane
and pertinent in
contemporary times ?
3. What analogy
can be drawn
between Article 21
of Indian Constitution, UDHR
and Bill Of
Rights with respect
to the Rights
of Non-Citizens to fair and
speedy trial?
4. Was the
execution of Kasab
actually delayed or
was it totally
in compliance with
principles of Natural
Justice ?
SOCIAL ISSUES:
There
are several social
issues which were
imminent in my
taking up this
topic. In present
day world there
is worldwide cry
over Human Rights
and several conventions
have been setup
so as to
ensure that the
human rights of
every individual irrespective of
his citizenship or
nationality are protected.
There are several
International Instruments which
provide for abolishment
of capital punishment
irrespective of the
gravity of the
crime. But yet
it is questioned
as to whether
these Human Rights
extend to Terrorists
also. Are they
also entitled to
the basic human
rights like Right
to Life, Right
to be Heard,
fair trial, etc. Are
they also entitled
to receive speedy
trial and justice
irrespective of their
offence. Is the early
day notion of "1000 Culprits
Can Escape. But An Innocent
Should Not Be Punished" still
relevant in this
era where Human
Rights collide with
Terrorism. Thus, this
report aims to
study the prevalence
of the arrears
in justice dispensation system, reasons and
causes of the
same and various
angles involved with
respect to these
social issues in
this era of
human rights.
|
1.
INTRODUCTION: CONCEPT OF JUSTICE
Ever since the
dawn of the
human races and
civilizations, in the
whole assortment of
our legal, moral
as well as political theory,
the notion of
justice has always
retained for itself a
paramount place. Granting
any attempt to
define the term accurately,
precisely, scientifically and
exhaustively has conferred
upon the scholars
of all hues
a baffling trouble. Subsequently on
account of its
multidimensionality, its nature
and connotation has
always been a
dynamic concern. Besides,
the problem of
definition of justice
is beset with
the problem of
its normative as
well as empirical
connotations. While in
the normative sense
it implies the
idea of joining
or fitting the
idea of a
bond or tie[1], in an empirical context,
it has its relation with the concept
of positive law with the result that law and justice becomes
sister concepts.
It will be
owing to this
confirmation that the
basic reason of
law will be said
to be the quest for justice which is to
be administered without
ardor as when
it (enthusiasm) comes
at the entryway,
justice flies out of
the
window.
Conversely, notwithstanding the problem of defining the term Justice,
precisely, scientifically and exhaustively, it is submitted
that "Jurisprudence can not escape
considering justice since justice is ideally – the matter
of law. But what if justice can not be known? Justice
appears to be overburdened idea. Sometimes it is reduced
to a question
of technique: it is thereby
posed as the problem of what will guide the techniques of constructing social
order. At other times it appears as a problem
of legitimacy or put another
way as an answer to the question
of what will provide a rational framework.
for judging the adequacy of the regulation
of human relations."[2]
a) Etymons of Justice
The word justice comes from its Latin root ‘Jus’ meaning ‘right’. It has its literal meaning as ‘binding’ or fitting or tying together of things and qualities harmoniously in human life. Thus Justice becomes a means of adjustment and a measurement. The idol of Justice blindfolded with balance in hand gives the expression of balancing, weighing and impartial judging which applies to disputes and conflicts.[3] For this purpose
justice acts as the referee
to decide as to
which party won
and which party
lose. It seem like
that Justice
has major utility resolving disputes and
conflict situations. It
also maintains a balance amongst
the principles like liberty, equality
etc . The speculation of justice can be traced
back to the western materialistic
society which from the very beginning showed
inclination towards the political orientation
of western society
in Greece which
used to deal
with conflicts. In contrast to this in
Indian society there
had been no
misfortune of confidence
between religious power
and political power.
Indian social drive
from the extremely
starting will be more
towards reconciliation and
less towards choosing
the clashes between
singular, state and
social order interse.
Law as dharma
was both a
verdict and a
confidence, political trust,
the instruction of Law as
well as justice.
b)
Concept of Justice
Justice is usually
considered as a tool for determination of rights and liabilities and for adjudication
of disputes in furtherance of enforcing law. But that is not the case. Justice cannot
be restricted merely
to the task of right determination and dispute settlement.
The law in its purview
embeds much broader
imports like those of political,
social, juristic and moral idealism.
It is so,
because Justice has
reference to the
whole of human
existence which we need to
acknowledge by our
thought, will and movement. The
mystery of Justice
cannot be unraveled
by human reason,
rationale or dialect
totally. It has
greater appeal to
human soul. Justice
as actuality will be
just completely reflected
in our heart
and felt through
our instinct.
Jurists
and philosophers have
seen in the
concept of justice
their own ideal.
To Plato Justice
is realization of
‘Good’ which can
be achieved in
society by doing
one’s own duty
according to one’s
station in life
otherwise, Justice achieves
‘Good’ by retribution; .To Aristotle
Justice in its
general meaning is
‘righteousness’. In its
particular meaning it
means proper or
equitable distribution of
the goods of
existence, correction of
wrongs and exchange
of goods. It
has thus distributive,
corrective and commutative
functions.[4]
These
concepts show that
the doctrine of
justice has a
wide horizon which
extends from retribution
to reformation, from
condemnation to condo
nation, from bondage
to redemption and
from human guilt to
Godly grace. Justice
is then also
forgetfulness of wrongs
and complete forgiveness
in love and
sympathy. Justice in this
sense rises above
all the false
distinctions of class
creed and color,
social discriminations and
disabilities and becomes
man’s pure love,
regard, mutual concern
and welfare. It
enjoins upon all
to love by
mutual understanding and
respect beyond all
the privileges of
authority, status and
position. Such an
ideal human existence
may seem impossible
with in the
present frame work
of the State
in this world
today, which is
swayed by the
sorrow and trouble
generated by mutual
distrust, prejudice and
greed. But the
truth is that
in the heart
of our hearts
we have begun
to realize that
all men are
brothers and should
love each other,
that all power
and property is
meant ultimately for
human service and
welfare. Justice in
essence is the
message of love,
human service and
is welfarism.[5] This
is the heavenly
terminus of Justice
which man has
necessarily to travel
by fleeting through
all the trials
and tribulations, retributions
and condemnations to
have the grace of redemption
from the varied
ills and wrongs,
pains and tortures,
fears and frauds
and all the intimidating and unnerving illusions
and delusions of
human life.
2.
BILL OF RIGHTS, UNIVERSAL DECLARATION OF HUMAN RIGHTS AND ARTICLE 21 OF
INDIAN CONSTITUTION:
The concepts
of rule of law and separation of powers are recognized as standard norms in almost
each and every state wherein
the governmental setup is democratic
in nature. And thus Judiciary
and the other judicial organs
of that state are the primary bodies
upon whom the responsibility of interpreting the fundamental law of the land (by whatever name it is called) is bestowed upon. Thus the judicial organs
of the various
states have come up with various slants
and approaches in carrying out of this arduous and onerous responsibility conferred
upon them. But going by the experiences
we come across
several instances wherein
the task of interpreting constitutions, particularly
in matters involving
and implicating life and liberty
and livelihood, the courts of various jurisdictions
have been found to go beyond their realms of interpretation.
Many a times they have identified
and recognised claims
and entitlements which
are beyond the
interpretations of the
rights as explicitly
guaranteed in such
constitutions. Still some
continue to do
so, albeit with
some degree of
inconsistency. But sometimes this becomes essential
for the courts
to exceed their spheres of interpretation to provide for a more subtle and
refined meaning to the texts of the
constitutional documents. Though
it is considered
to be obligatory
on the part
of the judicial
organs to go
by the literal
rules of interpretation and
not to provide
their own meanings
to the text
yet sometimes they
need to go
beyond the literal
interpretations so as to protect
the whole purpose
of that law
from being defeated.
The constitutional documents
of almost all the democratic
countries have inhibited
the clause of right to life wherein
each and every individual be it of that country
or any other non-citizen person
is provided with certain fundamental
rights maintainable against
the state which are ensured
to be guaranteed
at all costs. These
rights are considered
very vital for they embark
upon the significance
and connotation of the “Human
Rights”.
These rights
ensure that a person irrespective
of his nationality
and citizenship is
provided with the
rights which cannot
be limited by
the physical boundaries
of the states
and thus no
person can be
deprived of these
basic rights and is entitled
to them not
because he is
from a certain
land or country
but because he
is born as
a human child. Thus
it has always
been a hectic
tasks for the courts to
interpret the clauses
like “right to
life and personal
liberty”. Yet numerous
attempts have been
made in dong
this frantic task.
Founding fathers
influenced by Bill
of Rights of
American Constitution, Declaration of
Rights of Man
of France, The
Irish Constitution of
1935, the post
war Constitution of
Japan & Burma,
the Universal Human
Rights’ Chapter &
Nehru Report of
1928[6] engrafted fundamental
rights in Part
III of the
Constitution of India
and bestowed upon
the judiciary of
the country the
whole sole power
and authority to
ensure that no
fundamental right is
permitted to be
defiled i.e. they cannot
be violated. United States
of America has incorporated the “Bill of Rights” and India “Fundamental
Rights” into their Constitution. These are the basic rights
which every person
born as a human is entitled to. They are the protective
guardians of the humanity. For instance the Vth amendment of US Constitution
guarantees that the accused will be tried for criminal
offence with system
of “Grand Jury”,
in India criminal
trials are adjudicated
by the judges
only. Grand Jury means common
people are selected
by the government
randomly representing the community, those will decide
the guilt of the accused
persons. Number of selected persons
varies from 6 to 12 or even more if the case is controversial. No person’s life and liberty
shall be deprived
without “due process”
of law in US. Due process means the content
and procedure of law must be just, fair, and equitable which will be decided by the judiciary.
Legislative power of depriving the person liberty
is restricted and scrutinized and evaluated by the judiciary.
In India the person’s life and liberty
shall be deprived
according to procedure
established by law. The world “procedure established
by law” gives wide discretionary
power to the legislator to restrict the liberty.[7]
Nonetheless, the Supreme Court in Menaka
Gandhi case, even though the court did not make
any use of
the word “due process”, it held that the procedure
established by law must be fair, just and equitable.
Accused person of crime enjoys
certain explicit rights
under the VI Amendment of US Constitution;
those are speedy
and public trial,
notice of accusation,
compulsory process of obtaining witness
in his favor and assistance
of legal counsel
of his choice.
All these rights
in India are not expressly
mentioned in the Constitution, nonetheless
these rights are provided by the Supreme
Court by broadly
interpreting the life and liberty
under Article 21.
The
Supreme Court ruling
in Menaka Gandhi
v. Union of India[8] realized
a change in legal disposition
towards right to life and
personal liberty ensured
under the Constitution.
Legal activism in
its ascent guaranteed
that the scope of this most essential
right was reached
out to numerous
zones not explicitly
set down in the law and has, all the while perused
in a lot of people
more major rights
and has made it compulsory
on some piece of the State to satisfy on numerous angles
which were, till then, constituents
of the Directive
Principles of State Policy. Hence,
a law endorsing
a method for denying an individual of his personal
liberty under Article
21 need to meet the necessities of Article 19. Further, the
procedure established by law under Article 21 must be in consonance
with Article 14 and must not be biased or self-assertive and must be
just, fair, reasonable and sensible. It
was in this case that the terms “life” and “personal liberty”
were given an expansive meaning
to move beyond
mere animal existence.
The case also read in several fundamental
rights into and as part of the right to life under Article 21 even though
these rights were not expressly
mentioned in the Constitution.
One of the most crucial aspects
of the expansion
of the ambit of the right to life under Article 21 of the Constitution is the provision
for inclusion of the social,
political and cultural
life of the person.
Thus, the fundamental
right to life guaranteed to all persons
under the Constitution
includes the right to live with human dignity and to participate
fully in the social, cultural
and political processes
of the country.
This goes beyond the biological concept
of life encompassing
only the vegetative
state of being alive. Rather
this right also embarks upon the philosophical
angles involved in right to life and personal liberty.
This also includes
a person’s right to receive
a speedy trial which is fair and
justiciable. Also that the trial of the person is carried out withstanding proper
procedure established by law and without any delay in justice dispensation
process.
Thus, in
the contemporary world, the
human right to life
is respected and formally recognized.
The Universal
Declaration of Human
Rights states that everyone
has a right
to life, liberty and
security of person.[9]
The link
between a right
to life and
right to certain
life-sustaining essentials is
formally recognized under
the Universal Declaration
of Human Rights. Article 25 clearly
states:
“Everyone
has the right
to a standard
of living adequate
for the health
and well- -being
of himself and
of his family, including, food, clothing,
housing and medical
care and necessary
social services [...].”[10]
Article
3 of the same Declaration also states:
“Everyone has the right to life, liberty and the
security of person.”
Thus it can be inferred from the above discussion that though the keywords embedded
in the laws of the various states
may vary but the crux of that very law remains the same. Hence the right to life irrespective of having different
interpretations on being subject to different states
is considered to be one of the most crucially
important fundamental rights
which every individual
irrespective of his nationality and citizenship is entitled to. Therefore, it becomes an obligation on the part of the State to ensure that their fundamental
rights are granted
to them on an equal basis with other persons
by doing away with any gap which may exist in the law. Such action on the part of the State is not only within the framework of the respective
Constitutions but is also an obligation on its part to be fulfilled.
- DELAY IN JUSTICE: A TABOO OR A TREND
“Justice
delayed is Justice
is Denied”- This phrase inhibits
in itself a tale of denial of justice because
of being delayed.
The Constitution of India reflects
the quest and aspiration of the mankind
for justice when its preamble
speaks of justice
in all its forms:
social, economic and political. People aggrieved
of physical, mental
or economical teething
troubles approach the court with great hope and expectations
for the redressal
of their grievances.
The only reason
that refrains them from taking
the law into their own hands is the belief
that one day or the other, they would get the justice that
they anticipated by the courts.
Thus, justice delivery
system then comes under an obligation to deliver prompt
and inexpensive justice
to its consumers,
without in any manner compromising
on the quality
of justice or the elements
of fairness, equality
and impartiality.[11]
The
success of the
Indian Judicial System
with respect to
Constitutional front is
unparallel. It has
contributed a lot in
enlarging and enforcing
human rights more
substantially in the
society. The concepts
like PIL (Public
Interest Litigation) has
also helped in
bringing the judicial
instruments in the
vicinity of the
oppressed and weaker
sections of the
society.
Numerous
nations world over are confronting
issue of delay
in regulation of
justice. It is a significant issue being confronted
by Indian Judicial
system also. "Delay" in the context
of justice signifies
the time expended
in the transfer
of case, in abundance of the time inside within
which a case can be level-headedly anticipated
to be decided
by the Court. In
an adjudicatory system,
if inquisitorial or adversarial, a normal life
span or compass
of a case is a characteristic piece of the system. Nobody anticipates
that a case will be decided overnight. However, challenge
emerges when the real time taken for disposal of the case far surpasses
its expected life span and that is the point at which we say there is delay in allotment of justice.
A
checking of the figures might indicate that notwithstanding deliberations
being made at different levels
and considerable expand
in the yield being given by the system, the gap between
the expected and actual life span of the cases is just augmenting.
The problem of
delay in the
disposal of cases
pending in law
courts is not
a recent phenomenon.
It has been
prevalent in our
system since a
long time. Several
commissions and committees
have been formed
to deal with
this very problem
who have given
their reports. The
recommendations made by
those committees though
implemented yet have
not yielded any
good results because
the problem is
still persistent in
the system. This
problem has subjected
our Judicial Organs
to severe strain
as people now
doubt whether their
grievances would be
ever redressed or
not. Their confidence has
shaken from the
justice dispensation mechanism. Long delay has also the effect
of defeating justice
in quite a number of cases. As a result
of such delay,
the possibility cannot
be ruled out of loss of important
evidence, because of fading of memory or death of witnesses. The consequences thus would be that a party with even a strong case may lose it, not because of any fault of its own, but because of the tardy judicial process,
entailing disillusionment to all those who at one time, set high hopes in courts.
a) Magnitude of
the Problem
In
resolving the query
of delays in
disposal of the
cases in the
courts, we first
need to direct
our attention to
the points of
bottleneck, or the
stages of the
cases where delays
actually take place.
•
Current
statistics from the Supreme Court of India[12] as on 01/03/2014 articulate
that there are 65.58% matters
in the Indian
Supreme Court that stand incomplete,
i.e., preliminaries like process of fee payment,
serving of notice,
pleadings, etc. are not completed
in those matters.
•
And out of ready or complete
matters (i.e., in which the preliminaries are complete and the matter
is ready for hearing), the matters which are in front of constitutional benches
are 37 in number whereas
the number of
referred matters stretch
to a number
of 151.
•
Out of 65261 pending matters,
42799 matters (26007
Incomplete miscellaneous matters
and 16792 not ready regular
hearing matters) are such matters
which cannot be listed for ‘hearing’ before
Hon’ble Court.[13]
•
In High courts
also a huge leap of cases lie in arrears.
According to the April-June 2012 edition of Court News, the
number of civil case which are pending
in the High Courts are 3401193 in number. The number of Criminal cases in arrears
also stretch to a wholesome
mound of 939674
cases. Thus adding
to a load of total 4340867 cases on the shoulders of the under-numbered High Court Justices.
•
The
condition in the
Subordinate Courts is even worse.
The number of civil cases which lie in arrears
sum to a number of 18995781. The criminal cases
in arrear mounds
also sum amount
to a total
of 26851766 cases,
which are of
course a gigantic
figure.
b) Reasons
for the delay
There are several reasons
for the delay in justice
dispensation process. The prominent one’s being under numbered Judges,
lack of Infrastructure augmentation,
inefficient court and case management
techniques, lack of trained Judicial
Officers in lok adalats and ADR’s who can work as mediators
and conciliators, classification of petty cases regarding jurisdictions, unwarranted
interlocutory applications, adjournments
taken by counsels
on flimsy grounds,
strike by lawyers,
etc. Thus, it can be inferred that not only the judges
because of being outnumbered but also the counsels because
of their credibility-less practices
and praxes add
up to more
and more arrears
in justice dispensation
process.
Thus, at a cursory
glance it can
be noted that
taking a glimpse
over the reasons
behind laws delay and the steps that have already
been taken in various quarters
after a long time, much
more is required
to be done. The real picture is not very satisfactory and encouraging. No effective changes
are made particularly
in the lower judiciary to prevent laws delays. That is why Mr. Fali S. Nariman,
an eminent Indian
jurist and former
Rajya Sabha member,
expressing grief about
the laws delays
in our system
quoted that - "Injustice is easy to bear, what stings is justice".
Thus, some
really practical and
sustainable approaches have
to be followed
for total eradication
of this evil. It
is true that the pendency
of cases is always highlighted
whereas the increase
in institution on account of a number
of factors and the increase
in disposal despite
the constraints faced by the system, is not always
appreciated, but still we cannot
deny the responsibility of the system
and its functionaries
to deliver an efficient and economical justice
to our people. Certainly “justice
delayed is justice denied” but the opposite,
that “swift justice
is injustice,” is also true.
Though fast track courts
have whittled away India’s
backlog, judges and observers
have raised concerns about the
quality of justice
being administered.
4.
A BRIEF STUDY OF KASAB’S TRIAL
Mohammed Ajmal Amir
Kasab
(13
July 1987 –
21 November 2012) was a
Pakistani militant and a
member of the
Lashkar-e-Taiba Islamist group,
through which he
took part in
the 2008 Mumbai
attacks in India. Kasab
was the only
attacker captured alive
by police.
Kasab
was born in
Faridkot, Pakistan to
a family belonging
to the Qassab
community. He left
his home in
2005, engaging in
petty crime and
armed robbery with a friend.
In late 2007,
he and his
friend encountered members
of Jama'at-ud-Da'wah, the
political wing of
Lashkar-e-Taiba,
distributing pamphlets, and
were persuaded to
join[14].
On 3
May 2010, Kasab
was found guilty
of 80 offences,
including murder, waging
war against India,
possessing explosives, and
other charges. On 6
May 2010, the
same trial court
sentenced him to
death on four
counts and to
a life sentence
on five counts.
Kasab's death sentence
was upheld by
the Bombay High
Court on 21
February 2011. The
verdict was upheld
by the Supreme
Court of India
on 29 August
2012. Kasab was hanged
on 21 November
2012 at 7:30
a.m. and buried at
Yerwada Jail in
Pune.[15]
His conviction
was dependent upon
CCTV footage revealing
to him striding
over the Chhatrapati
Shivaji Terminus with
an AK-47 and
a knapsack. Towards
the end of
December 2008, Ujjwal
Nikam was appointed
as Public Prosecutor
for trying Kasab
and in January
2009 M. L.
Tahiliyani was appointed
the judge for
the case. Indian
agents indexed a
11,000 page Charge
sheet against Kasab
on 25 February
2009. Due to
the way that
the charge sheet
was composed in
Marathi and English,
Kasab asked for
a Urdu interpretation of
the accuse sheet.
He was charged
of homicide, trick
and taking up
arms against India
alongside different wrongdoings.
His trial
was initially booked
to begin on 15
April 2009 yet
was deferred as
his legal counselor,
Anjali Waghmare was
released for a
clash of interest. It continued
on 17 April
2009 after Abbas
Kazmi was doled
out as his
new defence counsel
on 20 April
2009, the indictment
submitted a rundown
of charges against
him, including the
homicide of 166
people. On 6 May
2009, Kasab argued
not blameworthy to
86 charges. The
same month he
was distinguished by
onlookers who affirmed
seeing his real
landing and him
terminating at the
victimized people. Later the
specialists who treated
him additionally recognized
him. On 2
June 2009, Kasab
told the judge
he also understood
the Marathi dialect.[16]
In June
2009, the special
court issued non-bailable
warrants against 22
fleeing denounced including
Jamaat-ud-Dawa (Jud) chief
Hafeez Saeed and
chief of operations
of Lashkar-e-Taiba, Zaki-ur-Rehman Laqvi.
On 20 July
2009 Kasab withdrew
his non-guilty plea
and conceded to
all charges. On
18 December 2009,
he withdrew his
blameworthy supplication and
claimed that he
was confined and
his admission was
gotten by torture.
Rather he asserted
to have come
to Mumbai 20
prior days the
attacks and was
simply walking around Juhu
sunny shore when
police captured him.
The trial finished
up on 31
March 2010 and
on 3 May
the verdict was
pronounced — Kasab
was found guilty
of homicide, conspiracy,
and of waging
war against India
(which additionally conveyed
capital punishment). On 6 May
2010, he was
sentenced to death.
A Bombay
High Court bench,
made out of
Justice Ranjanaa Desai
and Justice Ranjit
More, heard Kasab's
appeal against capital
punishment and upheld
the sentence given
by the trial
court in their
verdict on 21
February 2011.[17] On
30 July 2011,
Kasab moved to
Supreme Court of
India, challenging his
conviction and sentence
in the case.
Subsequently, a bench
made out of
Justice Aftab Alam
and Justice Chandramouli
Kr. Prasad stayed
the orders of
the Bombay High
Court to take
after the due
process of law,
and began hearing
the case.
On 29
August 2012, Kasab
was found guilty
of waging war
and was sentenced
to death by
the Supreme Court
of India. Kasab's plea for
clemency was rejected
by President Pranab
Mukherjee on 5
November 2012. On
7 November, Minister
of Home Affairs
Sushil Kumar Shinde
confirmed the President's
rejection of the
petition[18]. The
following day, the
Maharashtra state government
was formally notified
and requested to
take action. The
date of 21
November was then
fixed for the
execution, and the
Indian government faxed
their decision to
the Pakistani Foreign
Office. Though reportedly
nervous in the
final minutes before
his execution, Kasab
remained quiet and
offered prayers. He
was hanged on
21 November 2012
at 7:30, according
to an announcement
by Home Minister
Shinde. Kasab's execution by
the Maharashtra government
happened barely two
weeks after President
Pranab Mukherjee rejected
his mercy petition
on November 5. After the
government contemplated burial
at sea, the
decision was finally
made to bury
Kasab at Yerwada
Jail.
Though the
trial of Kasab
ended with his
execution but several
questions were raised
upon his execution.
The International
Human Rights Instruments
like Amnesty International
immediately after the
report of Kasab’s
execution criticised the India’s act
of punishing a
terrorist with capital
punishment. It was
argued by several
that though it
gave the impression
that Kasab was
being given a
fair trial yet
there were some
instances which attest
that the law
wasn’t allowed to
take its course
properly[19]. The legal
proceedings against Kasab
allegedly did not
comply sufficiently with
international human rights
law standards regarding
fair trial and
due process guarantees.
In particular, his
defence counsel during
the first-instance trial,
Mr. Abbas Kazmi,
was allegedly given
insufficient time to
prepare Kasab’s defence.
It is reported
that the lawyer
was appointed with
delays and was
given eight days
to respond to
the opening statements
of the prosecution,
in a context
where the charge-sheet
against Kasab was
20,000 pages long
at that time.
The Supreme Court
reportedly held at
a later stage
that the time
offered was sufficient.
Furthermore, Mr.
Kazmi was allegedly
denied opportunities to
cross-examine the witnesses
and evidence used
by the prosecution.
In particular, Mr.
Kazmi’s request to
be provided with
a copy of
the medical report,
concluding that Kasab
was 21 years
old at the
time of the
offence, and used
by the prosecution,
was reportedly rejected[20]. This
led to the
alleged inability of
the defense to
seek other medical
experts’ opinions on
the age of
the defendant.
In addition,
Mr. Kazmi was
reportedly refused permission
to inspect the
various places connected
with the alleged
offences that the
defendant had been
charged with. It
is also alleged
that Mr. Kazmi
had raised objections
regarding evidence given
through affidavits, rather
than orally, which
reportedly rendered him
unable to cross-examine
witnesses. According to
the information received,
the first instance
court held to
dismiss Mr. Kazmi
for lack of
cooperation, although it is reported
that, under the
Code of Criminal
Procedure of India,
a judge has
no power to
dismiss a lawyer. During the
High Court proceedings,
Kasab’s newly appointed
lawyers were allegedly
unable to obtain
the Court’s permission
to meet the
defendant without police
presence within hearing
distance[21]. It
is also alleged
that during the
trial in the
Supreme Court, Kasab
and his lawyer,
Mr Raju Ramachandran,
never met before
the proceedings.
Furthermore, it
is reported that
neither Kasab’s lawyer
nor his family
were informed of
his execution. Also the
fact that Kasab’s
execution, as well
as its date
and time, were
allegedly held secret
made the doubts
even more indubitable
that the death
penalty may have
been imposed and
carried out against
Ajmal Kasab after
proceedings which did
not comply with
international human rights
law standards of
fair trial and
due process guarantees.[22]
Thus the
views stand diverted
on the question
as to whether
Mohammad Ajmal Amir
Kasab was given
a fair trial
or not. For
those who considered
him an “enemy
alien” believed that
he wasn’t entitled
to a fair
trial process and
that it shouldn’t
have taken that much
time to hang
him yet whatever
was done for
him by the
system was itself
a depiction of
the India’s respect
for Rule of
Law. Yet others
argue that though
his crime was
heinous yet he
deserved all the
fair chances of
not being given
capital punishment and
that the anomalies
in his trial
show that the
means of justice
were moulded to furnish certain
ends. Therefore, the answer to
the question as
to whether Kasab
was given a fair and speedy trial or not gets circumscribed
to individual’s contemplation
of the facts
of the case.
Findings and Suggestions:
The researcher
from this report
has found that
the notion of
inordinate delay has become a
common trend in the Indian
Justice Dispensation System. And
for the elimination
of this evil
several measures have
been opined and
even been implemented
yet all in
vain as the
problem has yet
not been eradicated
from the system. Several commissions have
been formed for
scrutinising the magnitude
of this problem
and appropriately provide
suggestions and recommendations for
resolution of this
problem. But despite of
all these steps
being taken the
object of speedy
trial remains a
myth and has
not, so far, translated into
reality.
The need
for speedy and
fair trial has
not only been
felt with regard
to Indian laws, even
other countries like
U.S.A., U.K., etc. have also taken
cognizance of this
problem prevailing in
their systems which
is why even
the Bill of
Rights, Absolute Rights in
U.K., Universal Declaration of
Human Rights have
been embedded with
provisions and norms
for the eradication
of the evil
of Delay in
Justice. An analogy can
thus be drawn
between these laws
and Art. 21 of
Indian Constitution which
though not explicitly
provide for such
provisions yet inhibit
in itself the ambit
for including any
such provisions (for speedy
and fair trial, etc.) .
Also,
the researcher through
this report observed
the various intricacies
of the trial
of the 26/11
Mumbai attack accused
Ajmal Kasab. His trial
though a depiction
of the India’s
respect for rule
of law was
actually not in
all means a
fair one. There were
several phases during
his trial where
his trial was
found to be
not fair ( as discussed
in chapter 4
of this report). Though the
survivors of the
attack asked why
it took 4
years to hang
him yet it
was found that
his trial was
the second quickest
trial to death
in India ( first quickest
being that of
Ramchandra alias Raoji
who was hanged
in 3 years). His trial was
though quicker yet
not readily in
compliance with the
principles of Natural
Justice because of
some anomalies found
in his trial.
For solving
this problem certain
steps can be trailed like
expanding the strength
of the Judges
by drawing talented
and young persons
toward the judicial
services. The amenities and
scales of pay
should be attractive
and be of
such nature that
they can live
with reasonable decent
standards of living. Thus
this will help
in more and
more recruitments to
fill up the
Judicial requirements of
the nation. Also, proper training
should be provided
to them so
as to train
them in dealing
with every hurdle
that they may
face during justice
dispensation. With increase in the number
of Judges, there will be
need for more
courtrooms. Thus, augmentation
of infrastructure is
also one more
factor that may
help in increasing the
efficacy of dispensation
of justice. Moreover, there
is need
of proper laws
with regard to
delays caused in
justice delivery because
of avoidable factors
like Adjournments on
flimsy grounds, strikes by
counsellors, etc. Certain
laws need to
be enacted so
as to ensure
the eradication of
this problem only
then the object
of speedy trial
will prosper.
Conclusion:
Through this
report it was
lucid that the
problem of the
delay in Justice
dispensation is a
pest that is
eating the foundations
of the Justice
Delivery System. People’s
belief is moving
from the system
for they are
not receiving justice
in time. It
is also to
be noted that
this problem is
no new yet
despite of several
attempts and measures
opined and implemented
the problem is still persistent
in the system. Despite Ample provisions
been made in the laws the problem
of delay continues
to dominate the scene and object of speedy trial fails to click.
In the
rescue, one of the dynamic components
of the judicial
activism is reading
of the fundamental
right to speedy
trial in Art. 21 of the Constitution
of India. The Art. 21 of
Indian Constitution which
though not explicitly
provide for such
provisions yet inhibit
in itself the
ambit for including
any such provisions (for speedy
and fair trial, etc.).
By doing so, the judiciary has given additional
acceleration to the object of speedy trials.
A speedy trial means a speedy, quick or expeditious
trial but it is also true that a delayed
trial is not necessarily an unfair trial. Even
a speedy trial
can lead to
injustice if it
is made only
with the object
of alacrity. Thus, no time limit can be fixed and the denial of the right will depend
on the facts and circumstances
of each case. Yet the Courts have used strong
terms to condemn
delay in disposal
of matters.
It
is high time
that we make
laws which provide
for systematic evolution
of the right to speedy
trial in India. It
appears that time has come when the fundamental right to speedy
trial should be expressly guaranteed
by the Constitution.
There is need to enact a new comprehensive law on the speedy trial of cases. Changes primarily
need to be brought in
the existing laws.
Likely, Criminal laws should
be suitably amended
to achieve the object of speedy trial of offences. There should
be awareness campaign
for speedy trial of offences. The
evil consequences of delayed trial deserve to be given widest possible
publicity. Also there must be quick administration of death penalty
at all stages. It
should be appropriately
administered and to
the extent possible
eluded.
Bibliography:
Weblinks:
Research Documents:
1.
Earnest
Barker. Principles of Social and Political Theory, London: Oxford University
Press, 1967.
2.
Wayne
Morrison. Jurisprudence – From the Greeks to post modernism, Lawman (India)
Pvt. Ltd., New Delhi.
3.
Dr.
Sharma, R.N., "THE IDEAL OF DHARMA OR JUSTICE IN INDIAN CULTURE".
4.
Goudappanavar,
Subhash, “Comparative study of American and Indian Constitution”, Comparative
study of Indian and USA Constitution, Blogger.
5.
J.O.
Famakinwa , “INTERPRETING THE RIGHT TO LIFE“.
6.
Justice
Mehrotra, R.B., “EXPANDING HORIZONS OF FUNDAMENTAL RIGHTS AND COURTS'
OBLIGATION”.
7.
“Court
News”, Vol. VII, Issue No. 2, April-June 2012, retrieved from http://www.supremecourtofindia.nic.in
8.
Neepa
Jani, “ARTICLE 21 OF CONSTITUTION OF INDIA AND RIGHT TO LIVELIHOOD”.
9.
Prachi
P. Prabhu, “JUSTICE DELAYED IS JUSTICE DENIED”.
10. Hon’bleY.K. Sabharwal, in Justice Sobhag
Mal Jain Memorial Lecture on “Delayed Justice”.
11. Law Commision of India, 77th
report on “Delay and Arrears in Trial Courts”.
12. S. N. Sharma, “INORDINATE DELAY VERSUS
SPEEDY TRIAL : AN INDIAN EXPERIENCE”.
13. Parvez Jabri, ”Kasab death penalty
confirmed for Mumbai attacks”.
[1] Vyas, M.K., Concept of
Justice, Utilitarianism and other Modern Approaches.
Pvt.
Ltd., New Delhi,
Footnote 1 at p. 383
[4] Earnest
Barker. Principles of Social and Political Theory, London:
Oxford University Press, 1967, p. 102.
[5] Supra note 3.
[6] Justice Mehrotra, R.B., “EXPANDING HORIZONS OF FUNDAMENTAL RIGHTS
AND COURTS' OBLIGATION”, pg.1.
[7] Ibid.
[8] AIR 1978 SC 597.
[9] Universal Declaration of Human Rights [1948].
[11] Retrieved from: http://supremecourtofindia.nic.in/speeches/speeches_2006/delayed%20justice.pdf
on 10th March 2014 at 20:18pm.
[12] Retrieved from http://www.supremecourtofindia.nic.in/p_stat/pm01122012.pdf
on March 11,2014
at 09:30 am.
[13] “Court News”, Vol. VII, Issue No. 2, April-June 2012, retrieved
from http://www.supremecourtofindia.nic.in
on March 11,2014 at 10:00 am.
[14] Retrieved from http://www.nia.gov.in/acts/AjmalKasab-MumbaiHighCourtJudgement.pdf on March 12,2014
at 17:20 pm.
[15] Ibid.
[18] Retrieved from: http://www.frontline.in/static/html/fl2922/stories20121116292203700.htm on March 15,2014
at 06:30pm.
[22] Retrieved from http://www.hrw.org February 2011 ISBN 1-56432-735-3
on March 12,2014 at18:00 am.
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