by Pinky Anand
Upholding the death sentence, the Supreme Court recorded that:
[The] enormity of the crime in all scales . . . in terms of loss of life and property, and more importantly in its traumatizing effect, this case stands alone, or it is at least the very rarest of rare to come before this court since the birth of the republic. Therefore, it should attract the rarest of rare punishment . . . As long as the death penalty remains on the statute book as punishment for certain offences, including waging war and murder, it logically follows that there must be some cases, howsoever rare or one in a million, that would call for inflicting that penalty . . . That being the position, we fail to see what case would attract the death penalty, if not the case of the appellant. To hold back the death penalty in this case would amount to obdurately declaring that this court rejects death as lawful penalty even though it is on the statute book and held valid by constitutional benches of this court.
As all accused do in death-sentence cases, Kasab too sought to exhaust all the legal remedies at his disposal and filed a mercy petition. The President of India dismissed the petition, casting Kasab’s ultimate fate in stone. The trial took over four years and cost the Government of India about Rs 60 crore. Despite the huge financial and emotional cost associated with this trial, a terrorist was given protection and a fair chance to defend himself before the Indian courts of law, upholding the virtues of democracy and rule of law prevalent in our nation.
Kasab was secretly hanged in the premises of Yerwada Central Jail, Pune, and his body buried in an unmarked location. Even the media was kept in the dark about his execution and was only informed about one hour after he was buried. It is stated that he hardly slept the night before his execution and sang throughout. He was apparently surprisingly calm when brought for execution and displayed no sign of nervousness. Dressed in jail clothes, just before his hanging, he sought forgiveness from the divine—for an act that only the divine could possibly forgive.
While the world is working towards breaking down terrorism, it becomes impossible to rip it apart from its roots due to various reasons. The ideology is deep-rooted and is gaining popular support among those who can be misled, those who have lost faith in the current government and bureaucratic system, those who have been let down by them, or those who have suffered any kind of mishap, such as losing their jobs, families or ideologies due to certain government policies. These factors make terrorism a complex issue that is persistent and difficult to tackle.
The idea of terrorism may be twofold. It may be revolutionary or an inherently destructive and selfish one, determined from the objectives, motives and aims of the people carrying out any such acts.
The objectives sought to be achieved range from ethnocentric to secessionist and nationalistic to revolutionary. These terrorists may be viewed by some as saviours, who, in the face of all odds, are bringing to people a ray of light. This brings us to their changing roles and perception in the eyes of people. Terrorist psychology is not an irrational one. Motivations could be religious, political, social or economic, or to show solidarity with other terrorists in the name of an ideological agenda. While this may be a goal in transnational terrorist organizations, in South Asian countries, most people merely treat it as a job they must do in order to earn money, with little or no political motives.
In any case, terrorism is a social menace that threatens the very foundation of a civilized society. It is against humanist ethics, and to treat the resultant civilian casualties as justifiable or inevitable is to regard innocent lives as expendable. For civilization to thrive, it is essential that terrorism is removed from the world.
7
NANAVATI: THE END OF JURY TRIALS IN INDIA
Indian viewers of Western legal television dramas such as Boston Legal and The Practice may have often wondered about jury trials wherein ordinary citizens sit in a box, listen carefully to every word being uttered by the prosecution and defence, and eventually deliver a collective verdict. The inevitable follow-up question is: Why does the American system have trial by jury and not the Indian system? The answer can be found in the case of K.M. Nanavati and its aftermath. Why was Nanavati let off by the jury? Was it swayed by public sentiment, morality, sympathy or some other factor?
Before we go into the almost Bollywood-esque facts of the case, let’s take a brief look at the origin and subsequent evolution of jury trials over the centuries.
The History of Jury Trials
As is true for quite a few inventions, it is difficult to answer with certainty who the first people were to hold trial by jury. The current toss-up is between the Anglo-Saxons and the Normans. But the modern-day jury system indisputably owes its origin largely to the legal innovations of King Henry II, who was the monarch of England from 1154–89.
In the seventeenth and eighteenth centuries, the expansion of the British Empire to a scale where the sun never set upon it led to the spread of English culture to different parts of the world. Slowly, the colonies also adopted the British way of administering justice and dispute resolution, including trial by jury. The inhabitants of the new republic in America took a particular liking to the jury system. Thomas Jefferson described trial by jury as ‘the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution’.
In the case of India, by the middle of the nineteenth century, the British rule over the subcontinent was almost absolute and, as a result, trial by jury became a regular feature of the Indian legal system, incorporated in Chapter 23 of the Code of Criminal Procedure, 1861; this code was repealed and a fresh code effected, titled the Code of Criminal Procedure (CrPC) in 1973.
K.M. Nanavati v. State of Maharashtra
The case had all the hallmarks of a Bollywood drama (and it was turned into one)—a decorated Parsi naval officer, a beautiful wife, a notorious playboy businessman and an affair. This was perhaps the first time in independent India when the media was so engrossed in a legal case that all the principal actors—the accused, the witnesses as well as the lawyers—had become household names. Millennials who have grown up with constant coverage of the Aarushi murder case would be surprised to find that even sixty years ago, society’s appetite for a salacious murder case was not too different. The major difference would be that now television media has replaced the role print media used to play. A sensational ‘crime of passion’ involving the crème de la crème of Bombay—the case of Nanavati, where a highly decorated naval officer shot his wife’s paramour in 1959—is indelibly inked in the annals of the city’s history. A case that garnered unprecedented media attention and support for the accused, it is most significant in legal chronicles as being the last in India to be heard as a jury trial.
Kawas Manekshaw Nanavati was a naval commander working with the Indian Navy. Second in command at the INS Mysore, he married an Englishwoman named Sylvia in 1949 and together they had three children. After his service led the family to different places around the country, the family finally settled in Bombay in the early 1950s. Around this time, Sylvia and Kawas Nanavati met Prem Bhagwandas Ahuja, a Karachi émigré who owned an automobile business in the city. Prem Ahuja was a regular face in the upper echelons of Bombay society and also notorious for the affairs he had with the wives of the officers of the armed forces.
Nanavati was required to leave his family for long durations due to the nature of his service. Somewhere around 1957, Sylvia Nanavati and Prem Ahuja formed a friendship, which eventually developed into an intimate relationship. On returning home in April 1959, Nanavati, then thirty-seven, found his wife very distant and forlorn. When he inquired into the matter, Sylvia confessed to the affair. An agitated Nanavati was furious. Feeling hopeless, he expressed the desire to put an end to his life. Sylvia then entreated him to let ‘bygones be bygones’ and not contemplate killing himself. After lunch that day, Nanavati drove his wife and children to the Metro Cinema for a matinee show, his demeanour betraying no signs of his intentions. After dropping them off a
t the cinema, he drove to his ship, which was docked at Bombay Harbour, informed the captain that he intended to drive to Ahmednagar and requested permission to withdraw a revolver with six rounds for safety purposes. Putting the gun in an envelope, Nanavati drove to Universal Motors on Peddar Road, a showroom Ahuja owned. When Nanavati did not find him there, he proceeded to Jeevan Jyoti Apartments in Setalvad Lane near Malabar Hill, where Prem Ahuja lived with his sister, Mamie.
Nanavati was let into the third-floor flat by the housemaid. He walked into Ahuja’s bedroom, where he found him just coming out of his bath. What happened next was the main matter of dispute at the trial. The defence claimed that Nanavati placed the envelope containing the revolver on a table. He wanted to know if Ahuja would marry his wife and take responsibility for the children. To this, Ahuja is said to have replied, ‘Will I marry every woman I sleep with?’ Ahuja then spotted the weapon and moved towards it. Nanavati followed and, in the ensuing scuffle, three shots went off, killing Prem Ahuja.
The prosecution claimed that Nanavati had gone to Ahuja’s flat with the premeditated intention of killing him. It was asserted that upon reaching the apartment, Nanavati shot Ahuja three times in cold blood.
Nanavati then left the flat without explaining anything to a frantic Mamie Ahuja, who found her brother sprawled on the floor of his bedroom, clad in a towel. The officer then unloaded the gun, headed straight to Commander Samuel, the provost marshal of the Western Naval Command, to confess, and, on the latter’s advice, turned himself in at the nearby Gamdevi police station.
Pursuant to his surrender, Nanavati was put on trial under Sections 302 and 304 of the IPC. Under the first section, he would be tried for murder, punishable by death or life imprisonment. Under the second section, he would be charged with culpable homicide, meaning an act executed in the ‘heat of the moment’, possibly leading to the awarding of a maximum punishment of ten years, or even the possibility of acquittal. The dilemma before the court was whether the murder was indeed an impulsive act carried out under provocation or a premeditated one.
The case was presented in the Bombay sessions court in May 1959. Nanavati pleaded not guilty, and his defence team, comprising Karl Khandalavala, Rajni Patel and S.R. Vakil, argued culpable homicide. Chandu Trivedi, advised by Ram Jethmalani, formed the prosecution, arguing that this was a premeditated murder. In the sessions court, headed by Ratilal Mehta, a cosmopolitan jury consisting of nine members was instated.
Meanwhile, outside the courtroom, the case was picked up by Russi Karanjia, editor of a weekly tabloid called Blitz. Karanjia portrayed his fellow Parsi Nanavati as an upright and honourable middle-class gentleman who had acted against a degenerate member of the bourgeois. Karanjia lost no time in according maximum coverage to this case in his tabloid. Accompanying it were images that presented Nanavati in the best light possible. The story was lapped up by all classes of Bombay society, boosting sales for Blitz and spawning other opportunistic ventures—such as Ahuja towels and Nanavati toy guns—by other enterprising persons.
In the collective consciousness, the case began to take shape as an honour killing; the personal animosity between Nanavati and Ahuja mushroomed to engulf both the Parsi and Sindhi communities, to which the accused and victim belonged, respectively. The Parsi community came out in passionate support of Nanavati as a hero championing the cause of honour and marital fidelity, as did the public at large, owing mainly to the sensational coverage by Blitz. Sylvia, in spite of their recent history, stood beside her husband like a rock. She regularly attended court proceedings and testified in favour of Nanavati. Consumed by guilt for having broken her marital vows and wronging an honourable man, Sylvia, clad in a white sari, cut a demure figure in court.
As was the practice, the trial was opened by the public prosecutor, C.M. Trivedi. To everyone’s surprise, in a volte-face, he argued that it was a case of culpable homicide and not of murder. Ram Jethmalani, who, on Mamie Ahuja’s prodding, had been helping the prosecution put together a winnable case, was shocked at this sudden turn of events. Incensed, he decided to leave the legal team. But Trivedi, realizing his mistake, managed to convince Jethmalani to stay on. After a long-winded trial, in which the arguments of both the sides were concluded, the jury began its deliberations and, along with the jury, so did the entire city of Bombay. By virtue of the inexhaustible media coverage, the trial virtually played out in front of the entire city and, hence, everyone had an opinion on the fate that should befall Nanavati.
While the judge’s role was confined to deciding the issue on law, the jury was supposed to interpret the facts and pronounce a verdict of guilty or not guilty on the charges of murder pressed against Nanavati. However, the media uproar surrounding the issue had polarized public opinion across the state. The public interest was such that people took leave from work to watch every proceeding, gathering in large numbers outside the sessions courts. The public pressure and interest was so pronounced and prevalent in this matter that the jury members could hardly decide between fact and fiction.
The jury, comprising all Parsi members, pronounced the accused not guilty in an eight-to-one verdict. This was in spite of incriminating evidence presented by the prosecution, such as the three-hour gap between Sylvia’s confession and the time of the murder, the precise bullet shots, and the fact that despite the reported scuffle, the victim’s body was found clad in the same manner in which he came out of his shower. This marked a principal conflict between the opinion of the judge and that of the jury. Under suspicion that the jury had been swayed by media-generated sympathy for the accused, Judge Ratilal Mehta deemed the verdict ‘perverse’. In his view no reasonable body of people could have arrived on that verdict based on the evidence provided, and so he referred the matter to the Bombay High Court.
However, to prove that the verdict was perverse was easier said than done. High courts were generally very circumspect in admitting such references. In the Bombay High Court, the state was led by Y.V. Chandrachud, who later went on to become the longest-serving Chief Justice of India. To avoid going down the difficult road of proving the verdict ‘perverse’, the bar for which was set very high, Chandrachud, in a smart move, set about proving that the jury was misdirected by the court. He ventured to show that the Bombay High Court, where the case was presented in the winter of 1959, saw a reiteration of the question between premeditated murder and culpable homicide.
The Bombay High Court dismissed the jury’s verdict and held Nanavati to be guilty.
Nanavati appealed to the Supreme Court, contending that under Section 307 of the Code of Criminal Procedure, 1861, the high court was not empowered to set aside the verdict of the jury on the grounds that there was misdirection. The Supreme Court did not agree with this contention. Upon considering the historical background of Section 307, the court observed that the provision confers wide powers of interference on the high court in an appeal to safeguard against an erroneous verdict of the jury.
The court discussed that one of the main considerations in the case was the principle of sudden and grave provocation. If a crime is committed in a fit of rage or passion directly as a result of being provoked to such an extent so as to make a normal person lose all sense of logic and belief, fly into a rage and commit the said act without thinking, then it shall be an exception and count as a provocation.
As held by the Supreme Court, the test of ‘grave and sudden provocation’ is whether a reasonable man, belonging to the same class of society to which the accused belongs, and placed in the situation in which the accused was placed, would be so provoked as to lose his self-control.
In India, words or gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring it within the first exception to Section 300 of the IPC.
The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.
The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise by giving room and scope for premeditation and calculation. The accused is presumed to be innocent until his guilt is established by the prosecution. But when an accused relies upon the ‘General Exceptions’ in the IPC or on any special exception or in any law defining an offence, Section 105 of the Evidence Act, 1872, raises a presumption against the accused and also places a burden on him to rebut the said presumption.
Although the jury in the sessions court had returned a verdict of not guilty, it was decided by the Supreme Court that on such a charge as in the present case, it was not possible for the jury, who were laymen, to know the exact scope of the defence and also the circumstances under which the case was made out. The Supreme Court noted that more than three hours had lapsed between K.M. Nanavati being made aware of the affair and driving to his ship to obtain a revolver with six rounds. They found that Nanavati had committed a planned and premeditated murder and, as a result, convicted him for it, awarding him life imprisonment. The Supreme Court thus concurred with the decision of the Bombay High Court.
In view of the observations made by the Supreme Court, the Government of India took the momentous decision of abolishing the jury system in India in 1960 by amending the Code of Criminal Procedure in 1973.