New Delhi, August 29
The Supreme Court today upheld the death sentence awarded to Pakistani terrorist Ajmal Kasab for the 2008 Mumbai attacks, observing that the conspiracy hatched across the border was “deep, large and vicious,” the case was the “rarest” since independence and any lesser punishment would amount to abolishing the legal provision for the death penalty.

“We are thus left with no option but to hold that in the facts of the case, the death penalty is the only sentence that can be given to the appellant (Kasab). We hold accordingly and affirm the convictions and sentences of the appellant passed by the trial court and affirmed by the (Bombay) High Court,” a Bench comprising Justices Aftab Alam and CK Prasad said in a 498-page verdict. The trial court had awarded “five death sentences” to Kasab for five offences, including criminal conspiracy under sections 120B of the IPC read with Section 302 (murder), waging war against the Indian government under Section 121, unlawful activities under Section 16 of the relevant Act and for murdering seven persons under Section 302 of the IPC. As many as 166 persons were killed and 238 injured in the attack by Kasab and nine of his associates from Pakistan at various locations in Mumbai. Kasab was the only terrorist who was captured alive in the anti-terror operation, while the other nine were killed. Kasab had come to the SC, challenging the death penalty given to him.

The conspiracy hatched in Pakistan was “to launch a murderous attack on Mumbai

regarding it as the financial centre of the country; to kill as many Indians and foreign nationals as possible; to take Indians and foreign nationals as hostages for using them as bargaining chips in regard to the terrorists’ demands; to try to incite communal strife and insurgency and to weaken the country from within,” the SC held.

“In short, this is a case of terrorist attack from across the border. It has the magnitude of unprecedented enormity on all scales. The conspiracy behind the attack was as deep and large as it was vicious. The preparation and training for the execution was as thorough as the execution was ruthless. “In terms of loss of life and property, and more importantly in its traumatising effect, this case stands alone, or it is at least the very rarest of rare to come before this court since the birth of the Republic. Therefore, it should also attract the rarest of rare punishment.” The SC rejected Kasab’s contention that he was a mere tool in the hands of the LeT. The only mitigating factor was the young age (25) but this was completely offset by the absence of any remorse on his part.

New Delhi, August 29
Even as the Supreme Court on Wednesday upheld the death sentence of Mumbai terror attack convict Ajmal Kasab, he will not be hanged immediately and has two more chances to appeal.

Indian laws permit Kasab or his lawyer to file a review petition on today’s apex court order. Even if the review petition is rejected by the Supreme Court, Kasab will have the right to file a mercy petition before the President of India. The Union Ministry of Home Affairs (MHA) processes the mercy petition, gives its remarks and the President acts on it. The decision of the President is final and binding on the government.

However, a third chance of an escape for Kasab kicks in if he gets to use the route recently adopted by some death-row convicts such as Davinder Pal Singh Bhullar. Bhullar’s mercy petition was rejected by the President in May 2011 and his family filed a case in the Supreme Court, stating there had been a delay in justice;

hence, Bhullar has already undergone a term in prison for several years. Hanging him now would be a double punishment is their plea.

As per data updated till August 14, there are 12 mercy petitions pending with the President dealing with cases of 17 persons on death row. This includes the petitions of Afzal Guru convicted in the Parliament attack case of 2001 and Balwant Singh Rajoana convicted for the assassination of former Punjab Chief Minister Beant Singh in 1995. The last person to be hanged was Dhananjoy Chatterjee in 2004 at Kolkata for a rape and murder he committed in 1990.

Other that the mercy petitions, a total of 402 convicts — including 10 women —face death penalty as per the 2011 report of the National Crime Records Bureau (NCRB). These persons await endorsement or remittance of their sentence from the high courts of the Supreme Court.

Kasab’s case is in the last stages and the final appeals could take up some time before the execution, if okayed, is carried out. Article 72 of the Constitution gives the President the power to grant pardons, to suspend, remit or commute sentences, including death-row sentences such as the one Kasab faces.

However, there is a restricting clause to these powers under Article 74 which says the President shall exercise his functions in accordance with the advice given by the Union Council of Ministers. In case of death row, it is the advice of the Home Minister.

In case the President takes too long to decide on the petition, the Supreme Court could remind the President about the delay. Some other factors under consideration are: The convict’s personality; was he suffering from a mental disorder when he committed the offence; was there a doubt in the mind of the court regarding the evidence; has any fresh evidence cropped up to substantiate the claim of mercy and was this evidence considered before the sentence handed out.

Former President Pratibha Patil had kicked up a debate with a record 30 pardons in the last 28 months of her tenure, but she had held back her decision on petitions filed by terror case convicts such as Afzal Guru and Rajoana.