Judgment day

Days before the verdict on the 26/11 terror attack case, Ujjwal Nikam, the Special Public Prosecutor, captures the sense of triumph of the state. The trial in the 9/11 attacks case in the US, he says, has not even started, while the trial in the 26/11 attack, which came seven years later, has concluded and is set for judgment day—May 3, when a special court delivers its verdict. Nikam, the Mumbai Police and the state of Maharashtra certainly have reason to rejoice as Special Judge M L Tahaliyani prepares to rule in what has frequently been termed an open-and-shut case that grabbed global attention.

For one, a landmark terror trial has been concluded in 12 months even though it involved examining 296 witnesses, including those from outside the country, taking into account complicated technical evidence and dealing with the shenanigans of a Pakistani terrorist and offering him a transparent trial. To get a sense of the speed of this trial, it only needs to be compared with that of the other major terror attack on Mumbai, the serial blasts of 1993, which lasted nearly 15 years and became notorious as the world's longest terror trial. Secondly, the Indian security establishment managed to ensure that there were no attempts by terror groups to disrupt the trial or mount an attack to try and win the freedom of Ajmal Kasab, the lone Lashkar-e-Toiba gunman captured alive on 26/11.

Although there has been little doubt about Kasab's guilt in the face of the overwhelming evidence against him, authorities in Mumbai have always maintained that there never was any question of not giving Kasab a transparent trial. "We are a democracy, we have a certain judicial process... we are not one of those banana republics with kangaroo courts. A case of such magnitude cannot be decided overnight," says Rakesh Maria, the previous chief of Mumbai Police's Crime Branch who led the 26/11 investigations.

"We had 2,002 witnesses in this case. Keeping in mind that we need to arrive at justice as soon as possible, we brought it down. I think this case has moved very fast because this has been a dedicated court. The honourable court has not even taken a summer vacation... but there are procedures, legal norms to be followed, and you can't just skip it," he says.

Although Nikam is guarded about his expectations from the verdict and his strategy over a possible sentence for Kasab, legal experts say they would be shocked if the class four dropout from Faridkot village in Okara district of Pakistan's Punjab province is not convicted.

The critical questions that are now being asked revolve around how much further the legal process will stretch before Kasab runs out of options and what kind of closure will Monday's verdict bring to the most numbing terror attack witnessed by India. Considering Kasab has been treated very much like any other Indian accused, his likely conviction and sentencing will need to be confirmed or appealed in the Bombay High Court, followed by the Supreme Court. A mercy petition can also reach the President if he is awarded capital punishment. This process, prosecutors and legal experts say, could last years.

If Kasab is convicted and sentenced to death, he will be the 59th convict in Maharashtra on death row. While no one is willing to hazard a guess on how soon the 58 cases and their mercy petitions will be dealt with, prosecutor Nikam says that he has for long believed that the government should revise guidelines to deal with mercy petitions based on the nature of the criminal cases. "What I have suggested to the government is that certain guidelines should be framed on how to deal with mercy petitions. There should be separate criteria for mercy petitions for terrorists, for murderers, etc. I will not hold the President responsible. The mercy petition is first scrutinised by the Home Department. This is the channel, and the channel should be regulated," says Nikam.

Rohini Salian, another special public prosecutor, agrees that the process of appeals should be expedited. "If the trial court completes the case expeditiously, the appeals should be decided faster in higher courts too. But the process of appeal and confirmation takes time," she says. "Murders and terrorist acts, all have to be dealt with equally under the law, and justice not only should be done but ought to be seen to have been done."

While that was indeed the intention behind setting up a special court to try Kasab and follow the letter of the law, security officials and analysts are sceptical about whether the 26/11 trial verdict will bring closure to the larger challenge of terror or transform the way in which the Indian criminal jurisprudence system deals with terror cases.

Security analyst Ajai Sahni of the Institute of Conflict Management says the likely conviction of Kasab would only be of symbolic value. "The result is of academic interest. It will have no impact on the trajectory of terrorism in the country. It will also not bring about great transformations in our security or legal systems," he says. Sahni points out that a whole host of terror cases is languishing in courts across the country for years and the 26/11 trial was able to conclude in record time only because it bypassed the normal judicial system. "What has the trial changed vis-à-vis Pakistan? Has Pakistan stopped using double language on terror? Or has the United States changed the way in which it deals with Pakistan?" asks Sahni.

Maria, in a sense, echoes that sentiment. He recalls Kasab, during his interrogation, said that there were 300 or 500 young men like himself in training camps in Pakistan. Nineteen or 20-year-olds who had been picked up, indoctrinated and were being trained to become jehadis. "What the government says is right. The terror tap needs to be shut there in Pakistan," he says. "We are standing with a bucket here, waiting for the drops until the tap is shut, the supply is plugged. The real culprits are the conspirators. The footsoldiers will keep coming. They are like a crop which keeps sprouting all over. You require to stop the fellow who sows the seed."

(With inputs from Mustafa Plumber)

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