India's highest court on Wednesday upheld the death penalty for Ajmal Kasab, the sole survivor among a group of militants who attacked Mumbai in 2008. Mr. Kasab, a Pakistani, confessed to the attacks and asked to be hanged while in custody. He later retracted his confession, saying he was framed by the police. Judges said the conspiracy behind the attack was “vicious,†the trauma and loss of life caused by the attacks made them the “the rarest of the rare†since the birth of India and the attackers attempt to pass off as Indian Muslims was “ominous and distressing.†(Read the full judgment here.)Â
 For Gopal Subramaniam, a former solicitor general and the prosecutor in this case, th e judgment was a moment of personal and national pride, he said. In the months of marathon arguments that tackled questions of constitutional and international laws, Mr. Subramaniam, who also prosecuted the case involving militant attacks on the Indian Parliament in 2001, faced Raju Ramachandran, an Indian lawyer appointed as amicus curiae, or friend of the court, to defend Mr. Kasab.
In a conversation with India Ink, Mr. Subramaniam talked about the trial, the public pressure for speedy judicial results and terrorism. Â
Many have called this judgment historic, but you have said the trial itself is historic for India. Why?
When the trial was under way, I was conscious that this was a case with international ramifications. The way in which Kasab would be dealt with, I knew, would be a benchmark. Our institutions and our performance as a country would be subject to international scrutiny. People do expect to see how the In dian judicial system works. That's why I wanted to make sure that our benchmarks were completely international.
I would say that the standards of rigid scrutiny which were employed in this case were stricter than would be observed in Europe or the United Kingdom.
This trial raised several questions about the rights of the accused in our criminal justice system. Do you believe Kasab received a fair trial?
Yes, I think every judge gave Kasab his fair chance. No judge allowed emotion to come in. There was no prejudice against Kasab.
The Indian government actually gave an opportunity to the Pakistan government to ask for a Pakistani lawyer for Kasab. But Pakistan disowned him. They didn't send him a lawyer.
An amicus curiae was appointed in this case. He maintained the high traditions of the bar, which postulate that no person can be left undefended. He took a few months off and studied the record in a meticulous way. And he came up with valid const itutional points.
As the prosecutors, we used a human rights liturgy. This was not a case where the prosecutor said ‘Hang him, hang him.' The prosecutor said, let's look at the evidence and come to conclusion A, then B, then C, then D. I used every standard which was the higher benchmark.
Kasab has been found guilty of waging war against the state. What were the arguments for and against this contention?
According to the lawyer for Kasab, this was not a case where there was any waging of war at all. They said that attacking a few buildings in Bombay is not waging war against India. So I then argued that if you make a wanton attack on the people of a country because they are citizens of that country, it constitutes waging war against the state. I borrowed a public international law definition of state, which is to be found in Israeli decisions, among others, and the court has accepted that decision.
What were the main questions of law considered by t he court?
Kasab's fundamental point was: My trial did not follow due process.
There were two important constitutional issues of due process which were urged by Kasab. This first was in reference to hisconfession. The court has accepted the confession, except some portions of it.
They said that if you think that in procedural compliance [while the confession was made] there has been adequate adherence to constitutional values, you can accept the confession. And a retracted confession in our jurisdiction can still be acted upon if you have corroboration.
The second argument was that Kasab should have had a lawyer from Day 1. The court has actually agreed to that. But they've said that the absence of a lawyer doesn't vitiate the trial. That's a very interesting development in our law.
What kind of evidence was presented before the court?
I want to point out that courts of appeal are not meant to be always appreciating evidence. So you had t o read the evidence afresh.
There was eyewitness evidence. Poor people, many of whom had lost close family members, took the trouble to be witnesses. Second, there was documentary evidence in the form of audio transcripts of terrorists in conversation with each other. The third was DNA evidence. The fourth was video evidence of a man shooting people and walking.
People feel disillusioned with the slow delivery of justice in India. In this case in particular, there was a lot of pressure from the media and the people for swift punishment. Did that weigh on your mind?
Public feeling is different from public justice. Public justice would require the rule of law to be followed. Many people thought we should send him to the gallows immediately, that he should be shot dead. But that's not the rule of law. That would really be the rule of law in a banana republic. We had to try him.
I think we did a completely professional job. I was unaffected by all the pub lic discourse.
How does the Indian judiciary look at terrorism? Do they treat it differently from other criminal cases?
Terrorism is a stronger kind of case than a mere murder. Terrorism's impact is much wider. Terrorism can make a country bleed. It can break asunder a country. This is the first judgment that gives the state or the prosecution the right to treat such crimes as an act against the people of India.
You have significant experience dealing with terrorism cases. What lessons do they hold for policy makers and society in general?
We must look at terrorism as a mental disease. We must view this in a very different way. This is a product of cognitive dissonance that happens in the psyche.
We must therefore find out the psychological cause which makes people vulnerable to suggestive behavior from people who slowly win over confidence and then push a person from a phase of rationality to a phase of irrationality.
