A case of lawyers lowering the bar

 

press.” India’s constitution, too, mentions only one profession — and that happens to be the legal profession. It figures in a crucial fundamental right. Article 22(1) guarantees that no arrested person detained in custody “shall be denied the right to consult, and to be defended by, a legal practitioner of his choice.” 

 

If our founding fathers thought it fit to confer such a unique distinction on the legal profession, it is because they recognised that there could be no fair trial — an essential ingredient of the rule of law — without the participation of lawyers. Yet, post 26/11, this provision has come under attack from, among others, lawyers themselves. The reason is Mohammed Ajmal Kasab. 

 

For all their training to be dispassionate and objective, lawyers as a class failed to maintain their professionalism in the face of what was admittedly a severe test. The legal community is actually debating whether the only surviving perpetrator of 26/11 is entitled to a fair trial, like any other accused. Why India can’t dispense with the rule of law in his case, they are asking. A sizeable section of the profession cited in Article 22(1) sees no reason to guarantee that Kasab shall not be denied access to legal consultation. Succumbing to lynch-mob mentality, the Bombay Metropolitan Magistrate Court Bar Association even passed a resolution forbidding its members to represent Kasab. 

 

Not surprisingly, the bar’s boycott call was in line with a belligerent campaign launched by Shiv Sena. Its latest take, as expounded by Sena chief Bal Thackeray in one of his Saamna editorials, is that that there is no need for Kasab to be put on trial as his involvement in the terror attacks was visible to everybody. Instead, the Pakistani should straightaway be hanged, that too in public — outside the Taj Mahal Hotel and in front of the Gateway of India. Thackeray could not have been more explicit about his roadmap for India’s Talibanisation, replacing green with saffron. 

 

“The entire world has seen the human massacre committed by Kasab and his colleagues. The terror acts committed by Kasab and others were captured on television and still cameras. This is enough evidence and does not warrant trial of the terrorist,” Thackeray said, rubbishing the need for any legal process before Kasab’s punishment. He found an unlikely supporter in a Muslim outfit called All India Milli Council, which said Thackeray was spot-on in demanding that Kasab should be hanged without a trial. The council president, Iqbal Mohideen, arrived at the same conclusion through a different route: “Even the shariah says an eye for an eye, a limb for a limb and a life for a life.” 

 

More disturbingly, Thackeray’s view found resonance in the BJP with one of its ideologues, Arun Shourie, reportedly saying, “Best lawyers should not be made available to criminals, smugglers and terrorists. The fact that terrorists and smugglers get legal support from the best of our advocates makes their case stronger.” Though he was not as derisive as Shiv Sena on extending the regular legal protection to Kasab, Shourie seems to suggest India should comply with fair trial principles only in letter and not in spirit. 

 

Among all the arguments advanced in favour of denying Kasab the benefits of Article 22(1), the one that has the semblance of a constitutional basis is that he could be tried without a lawyer after declaring him an “enemy alien”. This line of reasoning (adopted, for instance, by maverick politician Subramaniam Swamy) is derived from Article 22(3), which says that the benefits of Article 22(1), including the right to be defended by a lawyer of his choice, do not apply to “any person who for the time being is an enemy alien”. 

 

But then this clause applies only when a war has been formally declared against another country. For, an enemy alien is somebody residing in a country at war with the one of which he or she is a citizen. India does have the option of following the American precedent of branding foreign accused as “enemy combatants” and subjecting them to a summary trial. Even so, Kasab would have to be provided with the right to be defended by a legal practitioner and the right to cross-examine prosecution witnesses — the minimum requirements of a fair trial. 

 

Amid the rightwing frenzy to bypass the legal process, there have also been voices from within the legal community warning against the danger of causing long-term damage to the system in the pursuit of a dramatic outcome in Kasab’s case. Chief Justice of India K G Balakrishnan has pointed out that the absence of a lawyer might actually hold up Kasab’s trial or force the Supreme Court to transfer it to another state. “What role he has played will come to light if there is a fair trial. Somebody will have to defend. It shall not be one-way traffic,” Justice Balakrishnan said. 

 

The chairman of the Bar Council of India, the apex regulatory body for lawyers, S N P Sinha, and ace criminal lawyer Ram Jethmalani denounced the call to boycott Kasab as well as the violence inflicted on the few lawyers who had dared to defy the diktat. Mercifully, even those who spoke in sympathy of the boycott call, such as senior advocate Harish Salve and retired Supreme Court judge Santosh Hegde, conceded that till a different regime was put in place for foreign terrorists, there was no option but to provide them with legal aid at state expense. The rule of law framework offers enough flexibility to obviate the danger of the Pakistani using the trial to derive political mileage for his jihadi ideology. Kasab has asked for legal aid and India would be sending out the right signal about its system if it obliged him.