26th November, 2008 was India’s tryst with the modern brand of terror. The state apparatus failed miserably to protect its citizens from the AK47 wielding fanatics. The city of dreams and the symbol of India’s financial might was held ransom by the terrorists for almost three days.
What is it that set this mindless act of violence apart from other acts of terror from the past? Was it the sheer magnitude of destruction it could inflict? Was it the sophistication and precision shown in carrying out these attacks? We are still groping in darkness for answers. The terror unseen and unheard finally had a face; Mohammed Ajmal Amir Kasab. Incarcerated in Mumbai’s Arthur Road jail, Kasab’s recent demands were a blistering Satire on the agitated imagination of a nation which is yet recuperate from the wounds inflicted by brutal attack on its citizens.
His brazen importunity for the amenities from the authorities is clownishly insensible since it comes from a person who displayed utter disregard for the integrity of the nation. In this article I am trying to decipher the legal intricacies involved in such a demand in the light of constitutional provisions, criminal procedure code, Indian penal code and international conventions.
In order to understand these we need to establish his legal status first. He is a foreign national who committed the most gruesome act of crime on Indian soil. He was literally waging a war against the nation. Is it possible to consider himself as prisoner of war? Or is he a normal criminal to be punished under the domestic law?
To be considered for the prisoner of war status Kasab should be a lawful combatant for the state of Pakistan and the state of Pakistan should be in a state of war with the republic of India i.e. the concerned states should have declared war against each other or should have engaged in an armed conflict. Considering the fact that the state of Pakistan has neither owned Kasab as a lawful combatant nor it is in a state of war with India, the argument for conferring POW is baseless.
SHOULD KASAB BE CONSIDERED AS A NORMAL CRIMINAL?
He is not a normal criminal who has broken the law of the land but he is as terrorist who has chosen to fight in blatant disregard for the laws of armed conflict and is, accordingly, an Unlawful combatant. According to international conventions An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of International Humanitarian Law (IHL) and may be detained or prosecuted under the domestic law of the detaining state for such action.
Hence we have established Kasab’s Legal status as an unlawful combatant; he should be punished under domestic law as an unprivileged combatant. He through his lawyer has been accusing that he was meted out with discriminate treatment in the prison. He there for is complaining that his fundamental rights has been infringed by the operation of the law or an executive order issued under the law. Let us check the legal validity of such an allegation.
Part 3 of Indian constitution which enumerates fundamental rights, places right to equality at the top of the table.
Article 14 of the constitution provides: The state shall not deny any person equality before law or equal protection of laws with in the territory of India. Equality before law implies absence of special privilege by reason of birth, creed or the like, in favor of any individual and the equal subjection of all classes to the ordinary law. Equal protection of law means “that among equals the law should be equal and equally administered that like should be treated alike. In other words it means right to equal treatment in similar circumstances both in the privileges conferred and in the liabilities Imposed by the laws
When you bring forth such argument, we need to examine whether he was one among the ordinary prisoners housed in Arthur road jail. The person who is a detune as unlawful combatant is no way equal to a normal criminal, so the question of “like should be treated alike” in invalid. So if Kasab wants to get something in the prison let him rather beg than demand for he is a confirmed misanthrope waiting for a judicial verdict under the most extraordinary circumstances. The question is whether our legal system is affably accommodating?