Legal counsel must for Kasab: Experts

MUMBAI: A legal counsel for Mohammad Ajmal Amir Kasab, the lone militant captured alive in the city terror attacks may become necessary for the state if it wants to successfully prosecute him, say legal experts. Over the years, Indian laws and their interpretation by the Supreme Court as well as the high courts have made it clear that accused charged with committing heinous offences would have to be provided legal aid, whether they ask for it or not. "Free legal assistance at state cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty,'' said a three-judge bench of the Supreme Court in a landmark judgment of 1986 in Sukhdas vs Union Territory of Arunachal Pradesh. Right from Independence and the promulgation of the Constitution, courts have been equivocal in their view that every accused person has the right to be represented by a lawyer of his choice. The right to life guaranteed under Article 21 of the Constitution of India, includes right to legal aid. Article 39 A of the Constitution further mandates equal justice and free legal aid. Sections 303 and 304 of the Criminal Procedure Code speak of the right of an accused to be defended by a lawyer and the state's duty to provide legal aid. In Kasab's case, he has sought legal assistance, but the SC judgment ruled that an accused does not even need to make such an explicit request. Though his case may be an open-and-shut case, he cannot be denied legal assistance and it may affect his conviction. "The exercise of this fundamental right is not conditional upon the accused applying for free legal assistance,'' said the 1986 SC order which added that a conviction of guilt in such cases cannot be sustained. "The conviction was reached without informing the accused that they were entitled to free legal assistance and inquiring from them whether they wanted a lawyer to be provided to them at state cost. This resulted in the accused remaining unrepresented by a lawyer in the trial. It is clearly a violation of the fundamental right of the accused under Article 21 and the trial must be held to be vitiated on account of a fatal constitution infirmity,'' the apex court had further said. In recent years, there have been many instances when the Bombay high court has sent back the case to be retried only because the accused was not represented by a lawyer. Earlier this year, in a case involving the murder of a doctor by a mother-daughter duo in Pune, the high court ordered a retrial. In 2006, a division bench of justices J N Patel and Roshan Dalvi called a mistrial in a case of robbery and murder for violation of the legal aid rule. "Denial of opportunity to the accused to be defended by an advocate of their choice or if they were not capable of doing so or failure on the part of the state to assign an advocate to defend them at the cost of the state, have deprived them of their rights. This has resulted in miscarriage of justice.'' The apex court, in an earlier judgment, had gone a step ahead and said that legal aid should be provided to an accused not only at the time of trial but also when he is first produced before a magistrate. "That is the stage at which an accused person needs competent legal advice and representation. No procedure can be said to be reasonable, fair and just when denied legal advice and representation to him at this stage,'' said the order of justices P N Bhagwati and A P Sen in 1981. Besides, according to rule 46 of the Advocates Act, anyone genuinely in need of legal assistance should not be denied such aid. Most of the lawyers whom TOI spoke to preferred to stay away from the controversy. Kasab's Pakistani nationality makes little difference. The Supreme Court as well as laws have been clear that even a foreign national is entitled to rights under Article 14 (equality before law), Article 21 (right to personal liberty) and Article 22(1) and (2) of the Constitution that confer the right to be represented by a lawyer.

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