Kasab: dilemmas of defence
by Sandhya Jain on 14 Apr 2009 3 Comments

There is merit in the Shiv Sena sentiment that the AK-47 wielding Ajmal Amir Kasab, caught on CCTV straddling Chhatrapati Shivaji Terminus where he and an associate slaughtered 55 persons in cold blood, and later captured alive due to the personal valour of ASI Tukaram Omble, deserves no defence.

The CST footage, his confessions to investigating agencies, and the fact that intrepid journalists traced his family in Faridkot village (Okara district, Punjab, Pakistan), are adequate to establish his guilt as a Pakistani jihadi who entered India  by sea with the intent to wreck a war-like incident in the financial capital.

Yet this seemingly open-and-shut case has been mired in controversy because, in the Indian judicial system, Kasab has to be tried and found guilty by due process of law. The cornerstone of a fair trial, non-negotiable in a civilised state, requires a forceful prosecution and a competent defence.

Hitherto, this was never a problem; notorious underworld dons got high-priced lawyers to defend and help acquit them on legal grounds. So formidable was the ability of criminals to get the best defence lawyers that this nexus seriously demoralized the police forces, raised muted questions about judicial functioning, and sparked off public debate through popular Mumbai films.

Should tainted money be free to buy the best defence? Is the status of a senior advocate all it takes to get one a serious hearing in court? As Indians pondered these issues, growing jihadi attacks forced government to appoint better public prosecutors to secure convictions and restore public confidence in the system.

The tide turned in November 2007 when six near-simultaneous bomb blasts occurred outside local courts in the Uttar Pradesh towns of Faizabad, Lucknow and Varanasi. These were widely perceived as retribution for local lawyers beating up arrested Jaish-e-Mohammed terrorists and denying them defence counsel.

This injection of a moral standard into the issue of legal defence of alleged criminals was a novelty in Indian jurisprudence, a much-needed corrective to the alacrity with which reputed lawyers rush to defend underworld criminals or corporate crooks. But no reputed lawyer appreciated the sentiments behind this initiative by UP lawyers; former Solicitor General Soli Sorabjee sharply rebuked them in his newspaper columns.

But the issue of whether an accused was “worthy” of being defended would not go away. In December 2008, a section of Mumbai lawyers “decided” not to defend Kasab, and when Ashok Sarogi, who had once represented underworld don Abu Salem, offered to serve Kasab, he was forced to withdraw after Shiv Sainiks pelted his house with stones.

The Esplanade Court Bar Association passed a resolution not to defend Kasab out of respect for public sentiment. The Bombay Metropolitan Magistrate’s Court Bar Association called for a judicial amendment for such cases, saying there could be no rights for a terrorist (whose action caused the loss of 180 lives). Delhi lawyer Shanwar Khan, who managed successful acquittals in six out of eight terror-related cases in which verdicts have been delivered, offered to defend Kasab, as did four Mumbai lawyers; all fled in the face of Sena wrath.

With the issue of legal defence, a right under Sections 202 and 203 of the Criminal Procedure Code, holding up the trial, Chief Justice of India  K.G. Balakrishnan firmly asserted that Kasab had the right to legal representation and fair trial. Some eminent citizens are perturbed at the thought of kangaroo court culture overtaking India .

It must have come as a relief to the judicial fraternity that India . Anjali Waghmare of the state legal aid panel agreed to represent Kasab, and stuck to her brief despite a nocturnal visit to her Worli police compound residence by rambunctious Shiv Sainiks. Among the protestors were family members of Tukaram Omble, who felt betrayed that a policeman’s wife should defend the accused, a sentiment that is natural and understandable.

Anyway, Kasab’s trial for “waging war” on India , murder and attempted murder, will now begin on 15 April 2009. As the trial follows its legal trajectory, it will go through the process of presentation of evidence, examination of witnesses, prosecutor’s argument, lawyer’s defence, judgment, and verdict. This will be followed by a round of appeals to the High Court, up to the Supreme Court, and who knows, may even land up in the President’s court.

As the case proceeds higher up the judicial ladder, more prominent lawyers are likely to get involved. It is possible that at some stage, prodded by larger international constituencies, some may feel India . Waghmare did not have the requisite acumen to defend Kasab, and that he could have been better defended if only the paltry legal fee of Rs. 900/- for the entire trial was made more meaningful.

This issue, relevant in itself, was raised by noted lawyer Indira Jaisingh in an article in the book, “13 Dec: A Reader. The Strange Case of the Attack on the Indian Parliament,” Penguin, 2006. Jaisingh argued that lawyers are not supposed to work for a pittance and appropriate fees would ensure that competent lawyers appear for indigent accused. She wrote that Afzal Guru personally told her that a co-accused got away because she had top class lawyers.

This issue is being raised here because many lawyers acquire fame by clamouring about human rights and legal defence, rush to file the mercy petitions for their publicity value, and avoid serving the accused for free at the trial court stage (by fielding their juniors), when it could make a difference.

Among lawyers who contributed to 13 Dec., India . Nandita Haksar said the “trial exposed how easily patriotism could be twisted to serve the needs of those who wanted fascism to triumph in this country.” India . Ram Jethamalani defended Geelani pro bono and secured his acquittal, but refrained from offering his services to Afzal. India . A.G. Noorani made the astonishing plea that popular sentiment in Kashmir was a valid ground to grant pardon to Afzal; he sought a retrial of the Afzal case.

Before similar controversies are raised to besmirch the judicial system later, India ’s legal bleeding hearts should step forward now and be counted for Kasab. Those who do not rise now, must be silent later as well, in this, and all similar cases. You cannot have it both ways.

The author is Editor, www.vijayvaani.com

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