Executing Kasab: a new beginning or the beginning of the end of India’s death penalty?

By Franklin Zimring, Economic and Political Weekly

With the pressure to execute Ajmal Kasab now past, perhaps India can proceed with caution towards ending executions, as every democracy in Europe has already done. A formal moratorium on executions can be a tentative first step as has been used extensively by other jurisdictions in their journey towards abolition. Ironically, then, Kasab’s hanging may have removed the country’s best argument for retaining capital punishment.  

The hanging of Mohammed Ajmal Kasab on 21 November 2012, was an important milestone in the saga of the Mumbai siege of November 2008, but it is also a significant episode in the modern history of the death p­enalty in India. The Mumbai invasion by a 10-person contingent of Pakistani terrorists killed 166 persons, caused extensive injury and huge material damage, and profoundly embarrassed India’s police and security services, who were held at bay for two days while millions watched on television and the internet. Kasab was the only survivor of the 10 attackers, and he was arrested and tried for his role in the larger conspiracy. This foot soldier was neither a leader of the terrorist attack nor a sophisti­cated enemy of the Indian state, but he was the only avail­able target for victims’ resentment and retri­bution, for frightened citizens, and for an outraged Indian government.

Kasab’s swift trial, expeditious appeals, and execution – all of which finished within four years of his awful crimes – were almost unprecedented in the labyrinthine legal system that has grown up around India’s death penalty. Kasab’s execution was only the second judicial killing in India in the past 15 years (the other occurred in Kolkata in 2004, 13 years after the defendant had been convicted). By contrast, the People’s Republic of China carries out several thousand executions each year. What keeps India from conducting any executions in most years is not a shortage of death sentences – there are currently more than 400 convicts on death row – but rather an executive clemency system which uses delay and indecision to postpone executions indefinitely. But not in the case of Ajmal Kasab.

Kasab’s speedy hanging raises three questions about India’s death penalty. First, what was so special about this crime and this defendant that produced such a speedy and severe response? Second, is Kasab’s execution a signal that India’s quiet progress towards quitting capital punishment could be in jeopardy? And third, might the aftermath of Kasab’s execution be a good time for I­ndia to move towards a formal suspension of executions?

What about the Mumbai case jump-started a rush to the gallows? Two possible answers – its terrorist motivation and the magnitude of the death toll – do not separate this case from a number of other murders that did not overturn the legal system’s standard operating procedures. To be sure, the attack in 2008 was terrorism in a pure form, but so were the massacre of Sikhs in 1984 after Indira Gandhi’s assassination, the mass killing of Muslims in Gujarat in 2002, and the attack on the Indian Parliament in 2001 – among several other cases. Moreover, the human toll in 2008 was great – 166 persons were murdered – but much smal­ler than the thousands killed in 1984 or the 1,000 or so who were killed in G­ujarat. Indeed, the death toll in 2008 was smaller than two earlier terrorist attacks in Mumbai, where 251 were killed in 1993 and 209 died in a 2006 bombing that led to two death sentences but no fast-track executions.

In large part what distinguishes the 2008 attacks from previous acts of terrorism is that this atrocity was seen not as an expression of domestic discord but rather as a surprise attack by Pakistan. Two justices of India’s Supreme Court were explicit about this linkage when they identified two critical aspects of Kasab’s guilt: “the gravity of his crime and the fact that he participated in waging war against the country”. For Indian citizens who demanded and celebrated his hanging, Kasab was a stand-in for the whole Lashkar-e-Taiba terrorist organisation – and perhaps for Pakistan as well.

If these are features of the Mumbai case that make it so singular, what do they suggest about the future of capital punishment in India? Will the first execution in almost a decade be the “icebreaker” that leads to a steady stream of executions across India, or will it stand as an exception as the nation continues to drift towards the permanent retirement of its executioners?

The argument that more executions will follow in the wake of Kasab’s hanging is that citizens who called for Kasab’s execution will now demand more. But such contagion seems unlikely, not least because the judicial emphasis on this offender’s waging war against the Indian nation appears designed to set his crimes apart from other capital cases rather than to invite a general policy shift. In Kasab’s case, public fear and fury were focused mainly on Pakistani war-making. By contrast, the Afzal Guru death sentence, which is the closest pending case to Kasab’s, involves a domestic defendant, which simultaneously reduces the pressure to execute and increases the danger that a hanging will provoke domestic discord.

What makes Kasab’s case singular thus sets it apart from the hundreds of murders that make for business-as-usual in Indian capital punishment. And as the Kasab case stands apart from the rest of India’s crime and punishment, it is also likely to stand alone, separated in perception and jurisprudence even from the attack on India’s Parliament in 2001 and the assassination of former Prime Minister Rajiv Gandhi 10 years earlier. With no other capital defendant likely to measure up to the Mumbai case for the fear and fury it produced, no other case presents as compelling a case for execution. The special horror of Mumbai may even raise the bar for acts that demand execution.

The experience of the United States (US) federal system in the aftermath of its execution of Timothy McVeigh is instructive in this respect. McVeigh’s bombing of the US federal building in Oklahoma City in 1995 was the American equivalent of Mumbai in 2008. McVeigh considered his bombing an attack on the US government, and his act killed 168 non-combatants. McVeigh was also a much more culpable criminal than Kasab because he was the mastermind of the scheme as well as its triggerman. His execution in 2001 was the first carried out under the authority of America’s national government after a new federal death penalty was passed in 1988. Both the US President at the time (George W Bush) and the attorney general (John Ashcroft) hoped that McVeigh’s death would produce a steady stream of federal executions – but that did not happen. One more federal offender was executed eight days after McVeigh, and a third was executed in March 2003. But then, and despite Al Qaida’s attacks in Septem­ber 2001 and the all-out “war on terror” that followed, there have been no federal executions for more than nine years.

If there was no increase in executions in a pro-death penalty environment like the US under a president and attorney general who strongly supported capital punishment, then the odds against I­ndia’s hangmen working overtime in 2013 seem rather long. Indeed, the swift execution of Kasab may have created an atmosphere in which India can make further progress towards ending the death penalty. Had his execution been delayed for several years more, his case would have remained an active irritant, and it would also have been a powerful argument against ending capital punishment. Ironically, Kasab’s hanging removes the country’s best argument for retaining capital punishment. Perhaps now the nation can proceed with caution towards ending executions, as every democracy in Europe has already done.

From De facto to De jure?

Whatever its practical virtues, India’s de facto regime of endless delay has been a fundamentally lawless method of keeping the hangman at bay. With the pressure to execute Kasab now past, the time may be ripe for implementing a formal moratorium on executions. This tentative first step has been used extensively by other jurisdictions in their journeys towards abolition, most recently in the American state of Illinois and in the Asian nation of South Korea. In the United Kingdom, as well, the death penalty was first suspended in 1965 before being permanently abandoned in 1969.

Leadership from the front in death penalty policy often provokes public opposition – and it certainly would do so in India. But there is really only one risk of a suspended death penalty that would generate fear from most Indian citizens: the possibility of another terrorist invasion, another Mumbai massacre. And here the history of death penalty reform suggests a plausible method for accommodating this fear. Many nations first suspend capital punishment for “ordinary crimes” while at the same time retaining a special provision that allows for capital sanctions in times of war and for acts of war. This kind of compromise would provide Indians with security against that which they most fear while putting an end to the extravagant contradictions of Indian capital punishment.