EDITS | Wednesday, December 17, 2008 | Email | Print | 
Mumbai’s Butcher and human rights
Kanchan Gupta
Now that the din of national outrage over the death and destruction in Mumbai, caused by 10 Pakistani fidayeen of whom one has missed the bus to jannat and thus left 72 gossamer-clad, kohl-eyed houris distraught at being deprived of the privilege of leading him through the pearly gates to the limitless pleasures that lie beyond, human rights activists and their cohorts in media have begun to crawl out of the holes in which they have been hiding since November 26. For the past couple of days, they have been crowding the studios of 24x7 news channels and airing their views dripping with compassion for Ajmal Amir Kasab, also known as, and justifiably so, ‘The Butcher of Mumbai’.
Displaying utter contempt for the national mood and flaunting their perverse notion of what constitutes justice, they have started demanding that Kasab’s ‘human rights’ should be protected. There is no evidence as yet to suggest that the ‘human rights’ of this terrorist are being trampelled upon by an uncaring, cruel state, unless we are to believe that his detention at an undisclosed safe house, in a room with a high ceiling to ensure that he cannot commit suicide, where he is being served wholesome hot meals, amounts to a gross violation of his ‘human rights’.
Nevertheless, by way of ample precaution, the New York-based Human Rights Watch, which has been honoured with this year’s UN Human Rights Prize, has lent its shrill voice to the clamour of the human rights activists. In a statement issued on December 3, while offering gratuitous advice to the Government of India on how to manage its affairs, Human Rights Watch has demanded that investigators should “respect human rights”. As a commentator in The Jerusalem Post has pointed out, “The HRW’s website lists 38 reports attacking counter-terrorism efforts around the globe but only three on the brutal impact of terrorism on civilians”.
Meanwhile, a spurious debate has been initiated by publicity-seeking human rights activists and lawyers, egged on by activist-anchors whose hearts beat for Kasab and his breed and who make a fetish of their appalling ignorance, on whether he should be provided with legal assistance, presumably to prove his innocence in the courts of law. There are aspects to the debate that merit comment.
Kasab will no doubt be tried as per the law of the land after charges have been framed against him. Since we are a law-abiding democracy, the judicial process will not be short-circuited. It is also unlikely that the judges who hear the case will suspend their adherence to the principle, no matter how flawed and disingenuous it may be, that every accused person must be presumed to be innocent until proven guilty.
It is at once a tribute to our criminal justice system and a blot on our collective conscience that a Pakistani who slaughtered citizens of India and has since expressed neither remorse nor regret will appear in court as an ‘innocent’; the state shall have to prove that he is actually guilty of the crime which everybody knows he has committed in full view of innumerable witnesses. But since India is not Saudi Arabia, he will escape decapitation in a public square.
As with other terrorists, for instance, Mohammed Afzal Guru who masterminded the fidayeen attack on Parliament House on December 13, 2001, he will be represented by a lawyer. Which brings us to the question: Whose responsibility is it to ensure that he gets adequate and appropriate legal assistance? Since he is a Pakistani citizen, the responsibility devolves upon the Government of Pakistan. If Islamabad turns away its face, Ms Nandita Haksar and Ms Teesta Setalvad will have the opportunity to defend yet another terrorist. There are other lawyers who are willing to represent Kasab in court despite bar association resolutions preventing them from doing so. Some of them, including Mr Trideep Pais, are on record offering their services because they believe everybody has the right to legal representation and that a lawyer should not be constrained by either the nature or the enormity of the crime his or her client is accused of.
That’s a lofty principle and if Kasab’s defenders truly believe in it, they should not be fearful of social ostracism or of being shamed and shunned by their peer group. If it is their right to plead that Kasab is not guilty of the crime of mass murder, or that he does not deserve to be put on the next bus to jannat to keep his date with 72 gossamer-clad, kohl-eyed houris, then citizens have the right to spit on their faces. It is absurd to expect people will felicitate the defenders of Kasab.
There is, however, the other view, which cannot be entirely overlooked in our zeal to uphold the rule of law as we understand it. Does Kasab really qualify to be tried within the matrix of our criminal justice system? As a foreign national, he cannot demand the same privileges that are accorded to India’s citizens and are guaranteed by India’s Constitution. More importantly, he is not a commonplace offender, but an alien ‘unlawful combatant’. During a recent television debate, former Solicitor-General Harish Salve described Kasab as a foreign citizen and an ‘unlawful combatant’ who waged war against the Union of India; since he targeted unarmed civilians, he should be treated as a ‘war criminal’.
The term ‘unlawful combatant’, contrary to popular belief, was not coined after 9/11 to justify the detention of suspected jihadis at the American facility in Guantánamo Bay. It has been in use for a long time and essentially refers to ‘non-state actors’ who wage war against a state. Given the illegality of their action, it is not surprising that neither the Hague nor the Geneva Conventions should refer to ‘unlawful combatants’. Hence, it is ridiculous to invoke the Geneva Conventions, as is being done by those who hope to see Kasab walk free.
So, what do we do in this situation? How should we classify Kasab and his crime? Is he just an alleged murderer? Or is he an alleged terrorist? Or, is he an ‘unlawful combatant’ who should be tried by a military tribunal? And what will be Kasab’s response when his trial begins?
When Khalid Sheikh Mohammed, the mastermind behind 9/11, and his four co-defendants were presented before the Military Commission at Guantánamo Bay, they said that they wanted to plead guilty, but only if it served their desired purpose. “If we plead guilty, can we still be sentenced to death?” Khalid Sheikh Mohammed asked the Military Commission judge responsible for trying the men. The question stumped him and others representing the US Administration: They didn’t know how to respond.
What if Kasab were to tell the judge before whom he is presented, with or without legal assistance, “If I plead guilty, can I still be sentenced to death?”
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