Ujjwal Nikam, the special public prosecutor for the 26/11 trial, has been involved in several other high-profile cases, including the 1993 bomb blasts case. In an
interview with Umesh Mohite, he talks about different aspects of the 26/11 trial — the verdict, the evidence and the nature of the crime itself.
Q. How will you differentiate between the 1993 bomb blasts and the 26/11 Mumbai terror attacks? In your view, what are the major factors that make the two cases different?
A. In the 1993 bomb blast case, Indians were involved. There, the motivating factors were different, such as religious feelings. Tiger Memon, Dawood Ibrahim Kaskar and others from the underworld were involved in it, but there wasn’t really a direct international connection. But in case of 26/11, there was an international connection — Pakistan’s involvement. While the 1993 bomb blasts were a result of an outburst of strong emotional and religious feelings, what happened in November 2008 was a calculated, pre-planned attack, devoid of any religious or emotional sentiments.
Q. What was the difference between the two trials?
A. The difference is in the number of people accused in the two cases. In the bomb blast case, there were 123 accused, of whom 100 were convicted. In this case, there was just one terrorist who was caught, apart from two Indians — Fahim Ansari and Sabauddin Ahmad. Another difference is that in this case, I have been the only prosecutor handling the trial. But in the 1993 bomb blast trial, the CBI (Central Bureau of Investigation) had the upper hand, and they had their own prosecutors and officers and other personnel. In this case, I prepared the documents on my own, I alone filed the formal affidavits of the witnesses, and led the prosecution.
Q. You say that this was a crime committed against the society. But then, by its very definition, every crime is a wrong committed against the society and hence punishable, unlike cases under the Tort law, which is a wrong committed at a personal level and which can be compensated. How then would you differentiate this crime from others?
A. Every crime has a different motive. Some crimes are committed for pecuniary gains, some are committed out of rage, some have extraneous motives or personal enmity. But in this case, the differentiating factor is that there was no personal enmity between the accused and the victims, or, for that matter, between the accused and the nation. The attackers’ only motive was to kill everyone around them, without any reason. That’s why I refer to the Sanskrit subhashit that says those who kill others for their own interests are called manav rakshas, demons in the form of human beings. The poet of this subhashit also said that he was at a loss to describe someone who kills for nothing. I too have no words to describe such an act.
Q. You have been a part of many important trials. Which of these do you think was the most important one so far?
A. This was by far the most important trial I have been in. Here, a foreign country actually waged war on us through terrorists. I personally call this a proxy war. So, to convict an accused in such a case was always going to have international ramifications.
Q. What about the others who were involved in this conspiracy to wage the war? What should be done about them?
A. All the 35 accused are part of the conspiracy that was hatched in Pakistan much before the terror attack started on November 26, 2008. Kasab named 20 such persons in his confessional statement. We have already issued Red Corner Notices and non-bailable warrants against them. Kasab’s arrest was important from this point of view. If he had not been arrested, there wouldn’t have been a confessional statement, and we would not have been able to prove anything against Pakistan.
Q. When you start a trial, how you go about it? What kind of aim do you set for yourself in a trial? Did you set any such aim for yourself in this trial?
A. In any trial, my primary aim is not just to get the court to punish the accused, but to go to the very root of the crime. My goal is to find out whether the accused indeed committed the crime, and if yes, then to bring them to justice.
Q. The court acquitted the two Indians who were accused. What do you think went wrong? Do you agree with what the court said, that the quality and quantity of evidence against them was not convincing?
A. Our courts still carry on the British legacy. It is very important that the court appreciates the evidence that is there. But this court’s verdict is not the final verdict. We do have certain legal options to challenge the verdict.
Q. How important was Kasab’s arrest? Was all the money and manpower spent over him really necessary?
A. Absolutely necessary. Kasab’s arrest is extremely important, and it was absolutely imperative to protect him. Through Kasab, we can expose the terrorist activities of Lashkar-e-Tayyaba, and throw light on terrorist activities in Pakistan. If Kasab had not been arrested, we would have had no proof and Pakistan would never have accepted its involvement in the terror attack. Now, Pakistan has been compelled to take action and try the other offenders in court.
Q. How long will it take to actually implement Kasab’s punishment? Do you think the legal process in cases where terrorists are involved should be speeded up?
A. We are a democratic country and our justice system is based only on the rule of law. Therefore, we have to go through the usual legal process that is valid for any other trial, where every accused has a right to prepare an appeal. I think it will take another six months for the high court to uphold the punishment given by the special court, if it agrees with the awarding of capital punishment. Then another few months for the appeal in the Supreme Court, not to mention the final mercy petition to the President. This is, of course, if he files all the above. I think implementing the death sentence will take some time.
Q. Do you think that the media has any role to play in such a trial?
A. The media has a very important role to play, and they did it very well. Because of the media, the common man got to know how the trial was taking shape. The media also played the vital role of a watchdog, helping to ensure that things are carried according to the law.
Q. What is the next stage of the trial? Is there a chance that Kasab can be extradited, as Pakistan has been demanding, and can the other accused Pakistanis be brought to India?
A. It is high time that Pakistan accepts its role in terrorism. I can’t fathom its logic in continuously demanding Kasab’s custody! Section 403 of the Pakistani Criminal Procedure Code says that once a criminal accused is convicted of a charge, he or she cannot be tried for the same offence again, to avoid double jeopardy. So now that Kasab has been convicted, how can Pakistan try him again for the same charge? It is a fallacy — a complete eyewash. I think Pakistan is doing this as part of a strategy. They know that he cannot be handed over, and so they will simply say that they cannot prosecute him since India didn’t hand him over to them.
With regard to the other accused, since we don’t have an extradition treaty with Pakistan all we could do was issue Red Corner Notices and warrants for their arrest through the Interpol.
Q. How did your family helped you through this entire trial? What did they feel when Kasab was declared guilty?
A. My family is not quite happy since I have been spending most of my time at work away from them. They know that even after this trial is completed, there will still be some other trial. But they are always with me. I had a talk with my wife after the conviction and she asked me how the court could let off the two accused Indians. She wanted me to be fully successful, you see. But I explained everything to her and she sympathised with me.