right of a terrorist to be heard

On 26^th November 2008, India witnessed one of the most dastardly acts of terrorism. When the nation scalded we expect a more than obvious rejoinder from those who are in charge of our national security. A nation abandoned by its own ruling political class, with over 100,000 casualties[1] has become the most favored target for the enemies of civilization. Reducing the enormity of the Mumbai tragedy to the exit of politicians is another exhibition of tokenism. What is required though is a radical metamorphosis of the criminal justice system in order to meet the exigencies of terrorism.

 

The credibility of law and judiciary to meet the aftermath challenges of terror attacks is a greater casualty. The lawyers who ideally are undettered by any sentiments are further disoriented. In such a scenario ,the advocates of terror have the last laugh since they are the unreachable perpetrators operating behind the instruments of terror ,(who we brand as the ‘terrorists’) the entities upon whom the entire public rage and outcry is vented and short circuited. [2]These instrumental terrorists are but corrupted puppets in the hands of the real architects of terror. Our fight against terror cannot afford to take a backseat by countering or condemning the terrorists on the forefront alone without probing them and nailing the real instigators. This can be achieved only if the sacrosanct right to be heard is not taken away from them.

 

More often than not emotional outburst asks for elimination of terrorists hastily. Will this solve the problem? Amidst the turmoil first and foremost the terrorist must be afforded the right to be heard via legal representation .In the absence of which we as a nation alone stand to lose since these fanatics had pledged their lives long ago and the value of the same is not known to them. Unless the system takes them in confidence and upholds the doctrine of ‘audi alteram partem’[3], any hope of the real truth being divulged or exculpatory evidence being given should be ruled out.

 

It is undisputed the act of terrorism must be given the harshest punishment but the same has to be established in the court of law .This also ensures that the motivations behind the crimes are made manifest in an open court  rather than  a press release of confessions made in custody of the Crime Branch which may not always be admissible.

 

 

 

Recently various State Bar Associations in Uttar Pradesh, Madhya Pradesh[4], Rajasthan and Maharashtra had passed resolutions that members of the bar would not defend the accused in terror cases.

This is unconstitutional and outrageous on the part of ‘lawyer groups’ since it amounts to believing every police theory and also contravenes the provisions of Article 22(1) of the Constitution [5].Inciting collective opinion and blanket opposition against representing a branded terrorist or any external pressure on a lawyer would tantamount to violation of the rights of an advocate.[6]

Chief Justice Balakrishnan , at a meeting of international jurists, had strongly underlined the need to “preserve the rule of law’ and ‘substantive due process’ which is an essential part of our collective response to terrorism[7]“Any dilution of rights of detainees will count as a moral loss against those who preach hatred and violence.”

 

The lawyers are obligated to be undeterred by public hostility, personal sentiments and the same ought not to incapacitate the lawyers to appear for the “alleged terrorist”.

he defense of the terrorist is indispensable for bringing out deeper links and in probing the hidden truth also and pronouncing efficacious punishment .Take the example of those accused of involvement in the 2005 Faizabad blasts who languished in jail for more than 18 months simply because they were denied an opportunity to be defended by any lawyer. This laxity cannot be permitted anymore.

 

 M. Shanwar Khan[8], has rightly pointed it is for the courts to decide whether a person is a terrorist or not. He emphasized if people like Dara Singh[9], Lt Col Purohit, Sadhvi Pragnya [10]and Nalini[11], terrorist involved in Mumbai ’92 blasts etc can all be given legal aid, then why not Kasab[12]?” especially when Section 202 and 203 of the Criminal Procedure Code (CrPC) of India expressly provides for entitlement of an accused to the right to defense.

 

Further should Kasab, an isolated example (caught on CCTV spreading terror) be allowed to digress the application of our laws in the most draconian manner and amputating the rights of other yet to be adjudged terrorists or innocents who are implicated. In fact the Supreme Court has noted that the lawyers do not have a “sacrosanct right” to keep privileged communications   with clients particularly those related to terrorism.[13] Thus the role of a lawyer is limited in these cases and convictions are based on confessions. The abovementioned sections 54 and 14 of POTA(now repealed) substantiate the same.[14]

 

 

The antiterrorist laws have consistently bypassed general safeguards beyond their original prescribed scope. However there is scant evidence that this abuse of power to diminish the terrorism has had the desired effect.  Limitations of Laws in admitting confessions  [15], preventive detention , Onus of innocence [16] curtailed right to defense[17],contravening the spirit of Basic Principles on the Role of Lawyers (BPRL) ,[18] have  now  been replicated in  Unlawful Activities Prevention Act. It is the procedure applied to this law which would spell much difference between caprice and rule of law. Thus in light of the same “Respect for human rights is a condition of lawfulness of Community acts and that measures incompatible are not acceptable” should be our resolve to tackle terrorism .[19]

 

 

 

It is about time to begin anew and the new motto behind our judicial system pertaining to cases of terrorism should be that ‘civility is not a sign of weakness and sincerity is always subject to proof,’ i.e. Civility in human right considerations of the alleged terrorist while sincerity of the same being admitted with caution and adequate proof . It is time to do away with the nauseating display of hogwash and bring about a suitable arrangement to arrive at the truth and crack down the masterminds behind the terror.

 The principal battle against terrorism has to be fought in a holistic manner which must then be reflected in the determination of the polity. Unless the terrorists are defended inane representations made to them [20] or vicarious liability attributable to the architects of terror will remain under wraps and the threat to India will never secede. We will continue to be hit by barrage of bunkum while the government will have only tired rhetoric to offer and no solutions.

 

 

 

 

 

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