Over roughly two and a half days, from the night of November 26, 2008, to the morning of November 29, ten men carried out a series of attacks across Mumbai that killed 166 people and injured 238 more, many of them grievously. Nine of the ten died before it ended. The tenth, Mohammed Ajmal Mohammad Amir Kasab, a Pakistani national who also went by the name Abu Mujahid, was taken into custody by the Mumbai police and became the only person ever tried in India as one of the attackers themselves.
His case passed through every tier of the Indian courts. A special sessions court in Mumbai convicted him on May 3, 2010, of waging war against the Government of India, of terrorist acts and of murder, and on May 6 sentenced him to death on five counts and to life imprisonment on five others. The Bombay High Court confirmed the death sentences on February 21, 2011. On August 29, 2012, a two-judge bench of the Supreme Court of India dismissed his appeal in a judgment that ran to hundreds of pages, holding that his trial had been fair and that death was the only sentence the case allowed. The President of India rejected his petition for mercy on November 5, 2012, and he was executed in Pune on November 21, 2012, five days before the fourth anniversary of the attacks.
The case left a mark on Indian law beyond the verdict. In answering his claim that he had been denied a lawyer, the Supreme Court held that the right to consult and be defended by a legal practitioner begins when an arrested person is first brought before a magistrate, and it directed every magistrate in the country to tell accused people of that right at that moment.
Kasab was born, by his own account to a Mumbai magistrate, on September 13, 1987. He was 21 at the time of the attacks. The courts treated him throughout as a Pakistani national, and Pakistan, after first denying the claim, acknowledged that he was a Pakistani citizen and that the assault had been partly planned on its soil.
He was taken alive on November 27, 2008, while the attacks were still going on elsewhere in the city. The investigation was assigned to the Crime Branch of the Mumbai police, which recorded his formal arrest. Twelve criminal cases were registered in connection with the attacks. The police officer who made the arrest offered him a lawyer, the Supreme Court later found, and he refused. At an early stage he asked instead for a lawyer from Pakistan.
On February 17, 2009, he was brought before the Chief Metropolitan Magistrate in Mumbai to make a confessional statement under section 164 of the Code of Criminal Procedure. It described the conspiracy as hatched in Pakistan and named the organization the courts would refer to as Lashkar-e-Toiba as the group behind it. Its use against him was argued over at every level of appeal.
He first asked for an Indian lawyer on March 23, 2009. The Supreme Court later treated his earlier refusal and his request for Pakistani counsel as his own independent choices.
The Maharashtra government moved quickly to set up the machinery for a trial. On January 13, 2009, an Additional Sessions Judge in Greater Mumbai was appointed to hear the case as a special judge. On February 25, the police filed a charge sheet of more than 11,000 pages, and it was served on Kasab the next day. A special public prosecutor was appointed on February 27, and on March 2 the case was committed from the magistrate's court to the sessions court, where it was numbered Sessions Case No. 175 of 2009.
The charge sheet named Kasab in 312 counts. Two Indian men were charged alongside him, accused of providing logistical support to the organization behind the attacks. The charge sheet also listed the nine dead attackers and thirty-five other accused who had not been apprehended. In June 2009 the court issued non-bailable warrants against twenty-two of those absconding accused.
On April 20, 2009, the prosecution put its list of charges before the court, including the murder of all 166 people who died. On May 6, the judge read out 86 counts that the court had framed against him, in Hindi. They included conspiracy to wage war against the Government of India, waging and abetting the waging of war, the commission of terrorist acts, criminal conspiracy to commit murder, the murder of a number of people, attempt to murder with common intention, and abduction for murder, along with offenses under several special statutes. Kasab answered that he was not guilty. He told the court he was 21 and a Pakistani.
Because of the security risk, the trial was held in a courtroom set up inside a jail in Mumbai, before a single judge sitting without a jury.
Finding a defense lawyer took weeks and produced two false starts. On March 31, 2009, the court appointed a lawyer to represent him, and he appeared at that hearing by video link. Within days it emerged that she also represented some of the people harmed in the attacks, and she was removed for the conflict of interest. That postponed the opening of the trial, which had been set for April 15.
On April 16, after consulting the president of the local bar, the court appointed a second defense lawyer. The trial began the next day, April 17, 2009. On the same day, the new lawyer filed an application stating that Kasab had retracted the confession he had made before the magistrate in February.
The new lawyer also applied for Kasab to be treated as a juvenile. He argued that his client was about seventeen and a half and should be tried before a juvenile court. The prosecution relied on the confession, on the jail's entry records and on the charge sheet, all of which gave a different date of birth, and on Kasab's own statement in open court that he was 21. The trial court held an inquiry into the claim and rejected it. The question did not go away; it was raised again on appeal.
The second lawyer did not last the trial. The judge later removed him for repeatedly raising objections that delayed the proceedings, a decision the Bombay High Court upheld. A third lawyer represented Kasab for the rest of the trial.
The trial lasted almost a year. The prosecution called witnesses site by site, building its case one location at a time, so that dozens of people gave evidence about each place where the attackers had struck. On May 8, 2009, an eyewitness identified Kasab in court. On May 15, two doctors who had treated him after his capture identified him. Over the following weeks more eyewitnesses identified him, and the court viewed closed-circuit television footage. In August 2009 officials of the United States Federal Bureau of Investigation gave technical evidence for the prosecution. The prosecution also sought, in May 2009, to amend the charges to state that one aim of the conspiracy concerned Jammu and Kashmir.
On July 20, 2009, in the middle of the prosecution's case, Kasab told the court that he was accepting his guilt. The judge did not accept it as a plea of guilty. The Supreme Court later agreed that the statement had been a "very diluted and partial admission" and could not be treated as a plea. The trial went on.
By the end of 2009 his position had changed again. On December 18, 2009, he told the court that he was innocent and that he had been framed. When he was examined at the close of the evidence under section 313 of the Code of Criminal Procedure, he denied the prosecution's case and retracted both his earlier statements. On January 25, 2010, the court rejected his request to be tried before an international court.
The prosecution closed its arguments on March 23, 2010, submitting 675 pages of written argument and asking for the death penalty. On March 31, the judge announced that judgment would be delivered on May 3.
On May 3, 2010, seventeen months after the attacks, the special judge found Kasab guilty. The court held that the charge of waging war against India had been proved. It found him guilty of murders he had committed himself and of abetting the murders committed by the other attackers at the other locations. It also convicted him of offenses under the Unlawful Activities (Prevention) Act and other special laws. A small number of lesser charges failed; the court held that it had not been proved beyond reasonable doubt that he had forged the false identity cards the attackers carried.
The two Indian co-accused were acquitted of all charges. The court held that the evidence the prosecution had produced against them could not be relied upon, and that it did not inspire confidence. The judgment, more than 1,500 pages long, also found that the evidence pointed to Pakistan, and it identified men in Pakistan, among the accused who had never been arrested, as having planned the attacks.
The court heard arguments on sentence over the following days. On May 6, 2010, it sentenced Kasab to death on five counts, among them waging war against the nation, murder, criminal conspiracy and the commission of terrorist acts, and to life imprisonment on five other counts, with lighter terms of imprisonment for the remaining offenses. When the judge asked him whether he wished to say anything, he shook his head. He was taken back to jail. The death sentences went to the Bombay High Court for confirmation, together with Kasab's own appeal and the state's appeal against the two acquittals.
A division bench of two judges of the Bombay High Court began hearing the case on October 18, 2010. On October 25 the judges viewed closed-circuit footage of Kasab and of one of the dead attackers. The special public prosecutor defended the death sentence on October 27. Kasab's lawyer began his arguments on November 25 and asked for a retrial.
Among the counts that carried the death penalty was the murder of three senior police officers of the city: Hemant Karkare, Ashok Kamte and Vijay Salaskar. On December 7, 2010, Kasab denied killing them. On December 14 the High Court rejected his renewed claim to be a juvenile. On December 21 it heard the state's appeal against the acquittal of the two Indian co-accused, and arguments ended on January 17, 2011.
The High Court gave judgment on February 21, 2011. It confirmed the death sentences, sustained the conviction and confirmed the punishments the trial court had imposed, and dismissed both appeals before it. Kasab's appeal against conviction failed, and so did the state's challenge to the acquittals. The two co-accused remained acquitted for lack of evidence against them. The High Court also found that Kasab had personally been responsible for seven killings. He was given thirty days to appeal to the Supreme Court, and the Maharashtra government said it would challenge the acquittals there.
Kasab filed his challenge from a Mumbai jail through the prison authorities, as a special leave petition against his conviction and sentence. He had no lawyer for it. On October 10, 2011, the Supreme Court stayed the death sentence, saying that "the due process of law has to be observed," and agreed to hear the appeal at length and without delay. It allowed him to amend his petition to add grounds, and it appointed a senior advocate as amicus curiae, a lawyer assigned to assist the court, to argue his side.
The hearings began on January 31, 2012, before a bench of two judges, and ran for nearly three months. The amicus argued that Kasab had been denied a fair trial: that he had been denied counsel at the earliest stage, that he had not been protected against incriminating himself, that the prosecution had not proved a larger conspiracy beyond reasonable doubt, and that with a lawyer beside him from the start it was doubtful he would ever have made a confession. Senior counsel for the Maharashtra government argued that the attacks had been an attempt to wage war on India and its people and that legal aid had been offered to Kasab from the beginning. The bench reserved judgment on April 25, 2012.
Judgment was delivered on August 29, 2012, in Criminal Appeal Nos. 1899 and 1900 of 2011, Kasab's appeals, and Criminal Appeal No. 1961 of 2011, the state's appeal against the acquittals. The court dismissed all of them.
On the right to a lawyer, the court held that "the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate." It found that Kasab had been offered a lawyer at his arrest and had refused, that his later request for a Pakistani lawyer had been his own choice, and that there was "no question of any violation of any of the rights of the appellant under the Indian Constitution." The lack of a lawyer before the trial, it held, had not prejudiced him. It then turned the point into a rule for the whole country, directing magistrates to make every person accused of a cognizable offense fully aware of the right to a lawyer at the first production and warning that failure would amount to dereliction of duty and could lead to departmental proceedings.
On the confession, the court held that the statement recorded by the magistrate in February 2009 was voluntary, and it upheld it except insofar as it related to the two Indian co-accused. On the central charge, it held that Kasab had been "rightly held guilty of waging war against the Government of India" and upheld his convictions under sections 121, 121A and 122 of the Indian Penal Code. It read "Government of India" in those sections to mean the Indian state, not merely the executive government of the day, and held that the attack had been aimed at India and Indians by foreign nationals acting "in like manner and by like means as a foreign enemy would do."
On sentence, the court held that the case fell within the "rarest of rare" category and that death was the only punishment open to it. It treated his youth as the one mitigating factor and found that it was outweighed, and it agreed with the High Court's findings on the killings he had committed himself. The court rejected the fairness challenge in a single line of its conclusion: "We have held that there was no lowering of the standard of fairness and reasonableness in the appellant's trial." It also had praise for the conduct of the trial, calling the special judge's handling of the proceedings and the record "exemplary" and recommending that the trial record be used in judicial training.
The state's appeal against the two acquittals failed. The court found the evidence of the key witness against the two men "completely unacceptable," held that the other witnesses did not inspire confidence against them, and agreed fully with the reasons of the trial court and the High Court. A pending transfer petition was dismissed as no longer surviving, and the Maharashtra government was directed to pay token remuneration to the lawyers who had argued Kasab's appeal.
With his appeals exhausted, the last remedy left to Kasab was a petition for mercy to the President of India. Eleven mercy petitions from other death-row prisoners were already pending when he filed his. On October 16, 2012, the Union Home Ministry sent his petition to the President with a recommendation that it be rejected. The President rejected it on November 5, 2012.
The decision was kept from the public. Newspapers learned of it only on the eve of the execution, and the Union Home Minister said that the date had been fixed on November 7 and that neither the Prime Minister nor the leader of the governing party had been told it in advance.
He was executed in Pune on November 21, 2012. The Maharashtra Home Minister announced it, and the Union Home Minister confirmed it, saying the police officers and others killed in the attacks had received justice. India informed Pakistan through its mission in Islamabad; Pakistani officials declined to accept the letter, and it was sent by fax. A Pakistani foreign ministry official said Islamabad had been informed beforehand and that, if the judicial procedures had been properly followed, the decision was acceptable.
The heaviest charge against Kasab was not murder but waging war against the Government of India under section 121 of the Indian Penal Code, together with sections 121A and 122, which cover conspiracy and preparation. The Supreme Court called waging war "the primary and foremost offence" he had committed. It also held that terrorist acts and waging war can overlap without always being the same offense, which is why the courts kept the two sets of convictions side by side.
The terrorism counts were brought under the Unlawful Activities (Prevention) Act, India's main anti-terror statute. The trial itself ran under the ordinary Code of Criminal Procedure, and the confession was recorded under its section 164, which requires a magistrate to warn the person that the statement may be used as evidence. His answers at the close of the evidence were taken under section 313, which gives an accused person the chance to explain the evidence against him.
The sentence turned on the "rarest of rare" test that Indian courts apply before imposing death. The trial court, the High Court and the Supreme Court each found that the case met it.
The Supreme Court's ruling on legal aid rested on the constitutional right of an arrested person to consult and be defended by a lawyer. The court did not find that Kasab's rights had been breached, because he had been offered a lawyer and refused. But it fixed the moment at which the right arises as the first production before a magistrate and placed the duty to tell the accused of it on the magistrate personally.
Pakistan's government said it was prosecuting seven suspects over the planning of the attacks, among them the man the Indian trial court had identified as one of the planners. Proceedings against the seven began before an anti-terrorism court in Rawalpindi in 2009. When Kasab was executed, the lawyer for one of the accused in Pakistan said the execution weakened the prosecution's case there, because Kasab could no longer give evidence.
The case moved to an anti-terrorism court in Islamabad in 2013. By April 2014 it had stalled: of about sixty prosecution witnesses, thirty-two had been cross-examined, and the hearings that had been held inside a jail near Rawalpindi had stopped over the judge's security. The trial had reached no verdict at that point.
His age was contested at trial and again on appeal. His defense argued that he was about seventeen and a half when he was charged and should have been tried as a juvenile. The trial court held an inquiry and rejected the claim, and the Bombay High Court rejected it again in December 2010. The courts proceeded on his own statement in court that he was 21 and on the date of birth he had given the magistrate.
His confession was retracted. He withdrew it through his lawyer on the first day of the trial, accepted his guilt in July 2009, then said in December 2009 that he was innocent and had been framed, and retracted both statements at the close of the evidence. The Supreme Court held the February 2009 confession to be voluntary, but did not rely on it as against the two Indian co-accused.
He maintained after his conviction that his trial had been unfair, and he argued before the Supreme Court in January 2012, "I was denied a fair trial." The Supreme Court rejected that claim in full.
The two Indian men charged with him were acquitted by the trial court, and both acquittals were upheld by the Bombay High Court and the Supreme Court. They stand acquitted. The thirty-five other accused named in the Mumbai charge sheet were never brought before an Indian court, and the trial of the seven men charged in Pakistan had reached no verdict by 2014.
November 26, 2008: The attacks begin in Mumbai; by the court's figures they kill 166 people and injure 238.
November 27, 2008: Kasab is taken into custody in Mumbai.
November 29, 2008: The attacks end.
January 13, 2009: A special judge is appointed to try the case.
February 17, 2009: Kasab is brought before the Chief Metropolitan Magistrate in Mumbai to make a confessional statement.
February 25, 2009: The police file a charge sheet of more than 11,000 pages.
March 2, 2009: The case is committed to the sessions court as Sessions Case No. 175 of 2009.
March 23, 2009: Kasab asks for an Indian lawyer for the first time.
April 16, 2009: A second defense lawyer is appointed after the first is removed for a conflict of interest.
April 17, 2009: The trial begins in Mumbai; the confession is retracted.
May 6, 2009: The court frames 86 counts; Kasab pleads not guilty.
July 20, 2009: Kasab tells the court he accepts his guilt; it is not treated as a plea.
December 18, 2009: Kasab tells the court he is innocent.
March 23, 2010: The prosecution closes its arguments.
May 3, 2010: Kasab is convicted; the two Indian co-accused are acquitted.
May 6, 2010: Kasab is sentenced to death on five counts and life imprisonment on five others.
October 18, 2010: The Bombay High Court begins hearing the case.
February 21, 2011: The Bombay High Court confirms the death sentences and upholds the acquittals.
October 10, 2011: The Supreme Court stays the sentence and appoints an amicus curiae.
January 31, 2012: Supreme Court hearings begin.
April 25, 2012: The Supreme Court reserves judgment.
August 29, 2012: The Supreme Court dismisses Kasab's appeals and the state's appeal.
October 16, 2012: The Union Home Ministry recommends rejection of the mercy petition.
November 5, 2012: The President rejects the mercy petition.
November 21, 2012: Kasab is executed in Pune.