Beyond Kasab guilty verdict, Mumbai attacks reshape Indian law

The guilty verdict announced Monday for Pakistani gunman Mohammed Ajmal Amir Kasab closed one chapter of the 2008 Mumbai attacks. But the impact on counterterrorism policy is still slowly unfolding.

A year and a half after 10 men with AK-47s debarked on India’s commercial capital and launched a rampage that killed 166 people, the trial of the lone surviving gunman is all but over.

On Monday, a judge in a high-security Mumbai court pronounced Mohammed Ajmal Amir Kasab guilty of murder and waging war against India. He will deliver the sentence in 10 days, after which the defendant can appeal.

The verdict brings closure to one of the worst terror attacks in Mumbai's history.

But the impact of the attack on India's counterterrorism policy has barely begun to be felt.

The 2008 attack on Mumbai triggered a shift in Indian antiterrorism law, inducing the government to bring back some of the harsh post-9/11 measures it had repealed just four years earlier.

Kasab is among the first to be tried under an altered legal framework, one that reflects a worldwide struggle to reconcile national security with human rights after the 9/11 attacks.

“Following [former President George W.] Bush's example, many countries implemented harsh antiterror laws,” says Colin Gonsalves, a New Delhi-based civil rights lawyer. “But many regret passing those laws now, because of the setback they represent for a democratic state.”

Most countries passed or amended their laws after 9/11 to comply with a United Nations Security Council resolution that called on members to implement counterterrorism measures, criminalize terrorism, and share intelligence. Many of these new laws undermine human rights norms, the International Commission of Jurists said last year.

Both the United States and Britain, for instance, have since 2001 expanded the government’s powers of surveillance and preventative detention, broadened definitions of terrorism-related offences, and made sentences harsher. The US authorized military tribunals that curtail defendant rights. More recently, Russia passed a law allowing terrorism trials to proceed without a jury, says Kim Lane Scheppele, director of the Program in Law and Public Affairs at Princeton University's Woodrow Wilson School of Public and International Affairs.

“Few states have seen their constitutional sensibilities remain intact in the panic over terrorism,” Ms. Scheppele said by e-mail.

Rights vs. security

Though India's legal system enshrines due process and judicial review, some of its antiterror laws rank among the harshest for a constitutional democracy. It permits, for instance, one of the longest periods of pre-charge detention.

Indian security laws are a legacy of British colonialism – the Indian Penal Code under which Kasab is charged with waging war predates its 1947 independence. But it has a more recent record of using antiterrorism laws to intimidate political or popular opposition that makes these measures especially controversial.

Since the 1970s, the central government has used such laws to suppress, sometimes violently, regional insurgencies and separatist movements in Jammu and Kashmir, Punjab, the northeast, and more recently, Maoists in central India.

“In some respects, like Israel, India has been dealing with significant national security concerns since its independence,” says Sudha Setty, associate professor at the Western New England College School of Law in Springfield, Mass., adding that this may explain why Indian “counterterrorism laws have been so robust.”

India’s first nationwide terrorism law was adopted in 1985, replacing a law targeted at Sikh separatists in Punjab. The law was allowed to expire 10 years later after widespread complaints about human rights violations. But in the wake of the 9/11 attacks, in 2002, a similar law was passed by the Hindu nationalist Bharatiya Janata Party-controlled parliament.

The 2002 Prevention of Terrorist Activity Act (POTA) set up special courts to speed up trials, tightened conditions for bail, and relaxed evidence standards. Like the 1985 law, it broadened the definition of terrorist activities, allowed authorities to hold suspects without charge for 180 days (the norm was 90 days), and shifted the burden of proof on to the defendant.

But POTA became better known for targeting political opponents and religious minorities than for delivering speedy justice.

Less than a year after it had passed, a prominent opposition leader in the southern state of Tamil Nadu was arrested for speaking favorably about the Sri Lankan Tamil Tigers separatist group. Of the 240 arrested under the act by early 2003 in the western state of Gujarat, 239 were Muslim (the only non-Muslim was Sikh).

The Congress-led United Progressive Alliance (UPA) repealed the unpopular law when it came to power in 2004. But the 2008 Mumbai attack led the coalition government to backtrack. A month after the attack, it reintroduced measures such as specialized courts and longer precharge detention.

In some ways, the new measures are worse, says Ms. Setty of Western New England College. For one, they are more permanent because the government incorporated the measures into existing law instead of creating special laws with an expiry date. They also have less “meaningful judicial scrutiny regarding the decision to put a defendant in the ordinary courts or in a specialized court,” she says.

One policy that wasn't revived: allowing confessions to the police to be admitted as evidence, which Mr. Gonsalves calls an “obnoxious” measure widely considered to incentivize police brutality.

A showcase trial

Lawyers like Gonsalves argue that normal criminal laws are adequate to try terrorist suspects.

In Kasab's case, the prosecution would agree. Ujjwal Nikam, the special public prosecutor for the Mumbai terror attacks, declined to use a state antiterror law that would have admitted police confessions as evidence, for example.

“We have enough evidence to do the job with regular laws,” Mr. Nikam says. That evidence is unusually exhaustive – including video and photographic footage, forensic evidence, cellphone transcripts, GPS tracks, and the examination of 658 witnesses – and suggests this case is the exception, not the rule.

Kasab’s trial has also been one of the quickest in a country where speedy trials are not the norm, even under antiterror laws. The trial in a series of bomb blasts in Mumbai in 1993 took 13 years. Another regarding the 1996 bomb blast in New Delhi ended just last week.

“The US still hasn't brought the 9/11 accused to trial,” Nikam emphasizes.

And though Kasab is a Pakistani citizen, he gets the same rights as an Indian, Nikam notes. Indian law makes no distinction between citizens and foreign nationals except in wartime. (Post-9/11 laws in the US, by contrast, permit indefinite detention of foreign citizens labeled “illegal enemy combatants.”)

“With a foreign national, there is a greater responsibility to demonstrate that legal treatment is neither discriminatory nor doubtful,” says Majeed Memon, a prominent Mumbai lawyer who has defended terror suspects. Any thing other than a fair trial would prompt an outcry from longtime rival Pakistan, he adds.

From the beginning, the Indian government has been conscious that this is also a trial for the world, and an opportunity for India to distinguish itself as a democracy (not unlike how some in the US see the trial of Khalid Sheikh Mohammed). In the months following the 2008 attack, many Mumbai lawyers refused to defend Kasab, and those who volunteered were threatened by right-wing activists. Some Indians called for Kasab to be hanged without trial.

But India's home minister P. Chidambaram dismissed that notion.

There can't be "kangaroo courts" in India, he declared.

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