Ajmal Kasab, the sole surviving terrorist of the 26/11 massacre was sentenced to be hanged until death by the Special Court in Mumbai. This article attempts to analyze two questions: On what counts was Kasab convicted and sentenced to death and life imprisonment? What are the legal issues concerning the execution?

Kasab was convicted and given death penalty under four counts of the provisions of the Indian Penal Code, 1860—murder (section 302), waging war against the Government of India (section 121), criminal conspiracy (section 120B read with section 302), abetment to murder (section 302 read with sections 34, 109 and 120B); and one count under the Unlawful Activities (Prevention) Act, 1967—punishment for a terrorist act (section 16).

He was also given life imprisonment for five counts, four under the Penal Code—conspiracy to wage war (section 121A), collecting arms with the intention of waging war (section 122), attempt to murder in furtherance of a common intention (section 307 read with 34), kidnapping and abducting in order to murder (section 364); and one under the Explosive Substances Act, 1908 for causing explosion likely to endanger life or property (section 3).

Now what are the legal issues? When will the verdict on Kasab be carried out? The conferment of the death sentence by the Special Court cannot ipso facto result in the execution unless the same is confirmed by the High Court (section 366, Code of Criminal Procedure, 1973). This is a mandatory statutory requirement. Additionally if the High Court thinks that a further inquiry should be made into or additional evidence taken upon, on any point bearing upon the guilt or innocence of Kasab, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Special Court (Section 367). The voluminous evidence against Kasab will be sent to the High Court and unless the High Court specifically directs otherwise, Kasab may not be required to be present while such inquiry is made or such evidence is taken. The evidence will be examined again, and critics believe that this is where the Public Prosecutor went wrong—he relied on too many witnesses, 600 to be precise, plus other evidences.

The High Court has the power to confirm the sentence, pass any other sentence, annul the conviction and convict Kasab of any offence of which the Special Court might have convicted him, order a new trial on the same or an amended charge or it may acquit Kasab. No order for confirmation can be made until the period of preferring appeal has expired, and if an appeal is filed with such period then until such appeal is disposed of (Section 368). In whatever way this verdict comes to the Bombay High Court, whether on appeal (within 60 days) or statutorily under section 366, the Chief Justice of the High Court will assign the case to a bench, which will most likely hear the case in the High Court premises itself and not in Arthur Road Jail. They also have an option of hearing the matter via video-conferencing.

Further such confirmation or new sentence or order passed by the High Court must be made, passed and signed by at least two judges when the Court consists of two or more judges (Section 369). Once the High Court has decided on the confirmation or the other order made, the proper officer of the High Court has to without delay send a copy of the order under the seal of the High Court attested with his official signature to the Special Court.

This order is appealable before the Supreme Court. If the Apex Court also upholds the death sentence then Kasab can appeal to the President under Article 72 of the Constitution. The President has the power to grant pardons, respites, reprieves or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence in all cases where the sentence is a death sentence (notwithstanding the power of the Governor of a State under any law). This Article has to be read with Article 74 which states that the Council of Ministers along with the Prime Minister will aid and advise the President, and the President shall act in accordance with such advice in the exercise of his functions.

Thus, assuming that Kasab takes recourse to all available judicial remedies, this case will take at least two to three years before it reaches the President. The State government is expected to push for fast-tracking the appeal. Even at the clemency petition stage, there is a queue system of clearing the backlog and presently there are 29 cases already pending. The heat from the opposition regarding ‘implementing’ the verdict and executing Kasab soon is baseless. The due process of law has to be followed and the State cannot carve out statutory exceptions. Let’s hang in there and wait!