surviving terrorist Ajmal Amir Kasab, but by doing so they actually might be harming the interest of the nation in securing his conviction for the carnage, feels Chief Justice K G Balakrishnan.
The CJI, speaking to TOI from Tel Aviv in Israel where he on an official visit, was clearly of the view that if Kasab did not get a lawyer to defend himself, then he has a fair chance of getting acquitted in the higher courts on the ground that the trial was vitiated as he could not present his case properly.
"Somebody should represent him in the courts. He cannot go unrepresented during the trial. If he does, then under our justice delivery system it would be regarded as a vitiated trial," he warned.
The refusal of advocate Dinesh Mohta, who was chosen from among the lawyers empanelled in the State Legal Aid Committee, to represent Kasab after Shiv Sena activists violently expressed their protest against legal aid to the Pakistani may not be the end of the road for the accused.
For, Justice Balakrishnan is a firm believer in Article 22 of the Constitution, which provides that no arrested person "shall be denied the right to consult, and to be defended by, a legal practitioner of his choice".
To fulfil this constitutional mandate, the CJI says, the trial court would do well to appoint a lawyer to defend Kasab. It is now the onerous task of the trial court to scout for a proper lawyer, either from the legal community or from those empanelled in the State Legal Aid Committee.
The CJI's views are similar to those of celebrated criminal law expert Ram Jethmalani, who had earlier quoted Bar Council of India rules to highlight an express bar on advocates to refuse to represent an accused, even if he was a foreigner.
In an authoritative ruling in Suk Das Vs UT of Arunachal Pradesh [1986 SCC (2) 401], a constitution Bench of the Supreme Court had ruled that "the right to free legal service is a constitutional right of every accused person who is unable to engage a lawyer and secure legal service on account of reasons, such as poverty, indigence or incummunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of the justice so require, provided, of course, the accused person does not object to the provision of such lawyer."
"It would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services. Legal aid would become merely a paper promise and it would fail of its purpose," it had said.
So Kasab's letter to the Pakistan High Commission in Delhi seeking legal aid and the latter's refusal on the ground that he has not yet proved himself to be a Pakistani, will not come in the way of the trial court to find a lawyer for the 26/11 accused.
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