Hanging Kasab may take several years (Lead, superseding earlier story)

May 6th, 2010 - 7:41 pm ICT by IANS  

New Delhi, May 6 (IANS) Hanging 26/11 terrorist Ajmal Amir Kasab may be sooner said than done as the death sentence given by the Mumbai special court Thursday will first undergo judicial scrutiny by India’s higher courts and then await the president’s decision in case of a mercy plea.
The entire process could take years as there are at least 52 people still waiting for presidential assent on their execution, while nearly 300 others condemned to the gallows by lower courts are awaiting the higher courts’ endorsement.

The death sentence for Kasab, the lone Pakistan-based terrorist caught alive in the Mumbai terror attack, will have to be mandatorily confirmed by the Bombay High Court. He was tried under various charges of terrorism as per India’s normal penal law as well as its latest anti-terror law, the Unlawful Activities (Prevention) Act, 2004 or UAPA.

Had he been tried and convicted under either of the two previous terror laws - the Terrorist and Disruptive Activities (Prevention) Act 1986, now defunct, or Prevention of Terrorism Act (repealed in 2004), Kasab would have been entitled to approach the Supreme Court directly against the anti-terror court’s order, said a lawyer from the office of Solicitor General Gopal Subramanium.

But as the new anti-terror law, UAPA, does not provide for direct appeal in the apex court, Kasab’s death sentence will first have to be confirmed by the Bombay High Court.

In case, the high court confirms Kasab’s death sentence, he would be entitled to go to the apex court in appeal.

And even if the apex court conducts an expeditious hearing over his appeal, it is highly unlikely that the final decision in the case will be taken in less than five years, said former Additional Solicitor General K.K. Sood.

For, even if the apex court decides in favour of the death sentence, Kasab will be entitled to seek a review of the verdict. And in case the apex court sticks to its stand, he may approach it a third time with what is known as a curative petition, raising some question of law, pointed out Sood.

In case the apex court eventually decides against Kasab, he will still have the option of approaching the president of India with a mercy petition to seek commutation of his death sentence into life or outright release under Article 72 of the constitution.

Kasab was among 10 Pakistani gunmen who struck in Mumbai in November 2008 in India’s worst terror attack that left 166 people dead. Unlike Kasab, the nine others were killed by security forces.

The list of prisoners already condemned to the gallows in India but awaiting presidential assent for execution includes Mohammed Afzal Guru, convicted for his role in the December 2001 parliament attack case.

Sources said Guru’s mercy petition is still pending with the union home ministry to be processed and sent to the Rashtrapati Bhavan for the president to take a decision on whether he should be sent to the gallows.

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