Mohammed Ajmal Kasab v State of Maharashtra, (2012) 9 SCC 1

The case of Mohammed Ajmal Kasab v State of Maharashtra is one of the most significant legal proceedings in India’s history. It pertains to the 26/11 Mumbai terrorist attacks of 2008, where Ajmal Kasab, the only surviving terrorist, was tried and convicted for multiple offences, including waging war against the Government of India. The case brought forth critical discussions on the rights of the accused under the Indian Constitution and the Criminal Procedure Code (CrPC). This case brief delves into the facts, legal issues, arguments, observations, and judgement of the Supreme Court.

Facts of Mohammed Ajmal Kasab v State of Maharashtra

1. Incident Overview: On November 26, 2008, ten heavily armed terrorists carried out a series of coordinated attacks across Mumbai, targeting prominent locations such as the Taj Mahal Palace Hotel, Oberoi Trident Hotel, and Chhatrapati Shivaji Terminus. The attacks resulted in the deaths of over 160 people and injuries to many more. Mohammed Ajmal Kasab, a Pakistani national, was captured alive while his accomplices were killed in counter-terror operations.
2. Charges Against Kasab: Kasab was charged under various provisions of the Indian Penal Code (IPC), including:
   • Section 302: Murder
   • Section 120B: Criminal conspiracy
   • Section 121 and 121A: Waging war against India
   • He was also charged under the Unlawful Activities (Prevention) Act (UAPA) and the Arms Act.
3. Legal Representation Issue: Initially, no Indian lawyer was willing to defend Kasab due to the gravity of the offence and public sentiment. Kasab demanded legal representation from Pakistan, but the Pakistani government refused to acknowledge him as its citizen. Eventually, Indian advocate Abbas Kazmi was appointed as his defence counsel after advocate Anjali Whagmare was removed due to a conflict of interest.

Trial and Appeals:

• The trial court convicted Kasab and sentenced him to death.
• The Bombay High Court upheld the trial court’s judgement.
• Kasab appealed to the Supreme Court, arguing a denial of fair trial rights and involuntariness of his confession.

Issues Involved

The issues raised in Mohammed Ajmal Kasab v State of Maharashtra were:

1. Right to Legal Representation (Article 22(1) of the Constitution): Whether Kasab’s right to be defended by a legal practitioner arose only at the commencement of trial under Section 304 of the CrPC, or at an earlier stage (during remand and investigation)?
2. Voluntariness of Confession (Section 164 of CrPC): Whether Kasab’s confession was obtained under duress or coercion, violating his fundamental right against self-incrimination under Article 20(3)?
3. Fair Trial: Whether the non-provision of a lawyer from Pakistan, as per Kasab’s request, constituted a violation of his fundamental rights under Article 21?

Arguments by the Appellant (Kasab)

1. Violation of Right to Legal Aid: Kasab’s counsel argued that he was not informed of his right to legal aid at the time of arrest and remand, violating his rights under Article 22(1). A mere offer of legal assistance was insufficient; he should have been made explicitly aware of his right to defence.
2. Self-Incrimination: The confession recorded under Section 164 of the CrPC should be deemed inadmissible as it was allegedly obtained under duress and without proper legal consultation.
3. Lack of Effective Representation: The state failed to provide legal aid of Kasab’s choosing (a Pakistani lawyer), which deprived him of a fair trial.

Arguments by the Respondent (State of Maharashtra)

1. Compliance with Legal Provisions: The prosecution contended that all legal procedures were followed, including informing Kasab of his rights and providing legal representation.
2. Voluntariness of Confession: The confession was given voluntarily before a judicial magistrate and was corroborated by substantial evidence.
3. Right to Legal Aid Fulfilled: Legal representation was provided at the trial stage as mandated by Section 304 of CrPC, and the refusal of a Pakistani lawyer did not constitute a constitutional violation.

Mohammed Ajmal Kasab v State of Maharashtra Judgement

1. Right to Legal Representation: The Court in Mohammed Ajmal Kasab versus State of Maharashtra held that the right to legal aid does not arise solely at the trial stage but also during remand and pre-trial proceedings. The magistrate has an obligation to inform the accused of their rights under Articles 21 and 22(1).
2. Constitutional Interpretation: A narrow interpretation of the right to legal aid fails to acknowledge the socio-economic realities of the country. Providing legal aid is the constitutional duty of the court, even if the accused does not explicitly request it.
3. Voluntariness of Confession: The Court found no evidence to suggest coercion in Kasab’s confession and ruled that it was admissible.
4. National Security Considerations: The attacks amounted to waging war against the nation, justifying the death penalty under the rarest of rare doctrine.

Mohammed Ajmal Kasab v State of Maharashtra Decision

• The Supreme Court in Mohammed Ajmal Kasab v State of Maharashtra upheld the conviction and death sentence imposed by the trial and High Court.
• It ruled that Kasab’s constitutional rights were not violated and that he was given a fair trial with adequate legal representation.
• The Court reiterated that while Kasab had initially refused Indian lawyers, he later accepted the appointment of two legal representatives.
• The Court affirmed that the attack was an act of terrorism against the sovereignty of India, warranting the maximum punishment.
• Execution was carried out on November 21, 2012, at 7:30 AM at Yerwada Central Jail, Pune, in complete secrecy.

Conclusion

The case of Mohammed Ajmal Kasab v State of Maharashtra reaffirmed India’s commitment to the rule of law and due process, even in cases involving grave acts of terrorism. The Supreme Court’s ruling reinforced the constitutional guarantee of free legal aid and fair trial principles, while also sending a strong message against terrorism. Despite the heinousness of his crimes, Kasab was granted all rights under the Indian legal system, ultimately leading to his execution after exhaustive judicial scrutiny.